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437 U.S. 255 98 S.Ct. 2333 57 L.Ed.2d 187 FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF BOSTON et al., Appellants,v.STATE TAX COMMISSION et al. No. 77-334. Argued March 21, 1978. Decided June 15, 1978. Syllabus Appellants brought suit in a Massachusetts court challenging the State's power to impose an excise tax on federal savings and loan associations as measured by their net operating income, claiming that the tax violates § 5(h) of the Home Owners' Loan Act of 1933, which provides that no tax on a federal savings and loan association shall be "greater than that imposed" by the State on similar local thrift and home financing institutions. Appellants claimed that the state tax on their net operating income exceeds that imposed on similar local institutions because the deduction available nder the state tax statute for "minimum additions to its guaranty fund or surplus, required by law or the appropriate federal and state supervisory authorities" is generally lower for federal savings and loan associations than for similar state savings institutions. Appellants also contended that because the Massachusetts tax does not apply to credit unions, which, appellants maintained, are "similar" to federal savings and loan associations, the associations are entitled to the credit unions' exemptions. The Supreme Judicial Court of Massachusetts upheld the statute. Held: 1. The Massachusetts tax is not discriminatory on its face. The amount of the deduction depends on varying regulatory practices as to the reserves that must be maintained, but a tax is not invalid because it recognizes that state and federal regulations may differ. Nor does the record show any discrimination in fact, or in statutory purpose (federal reserve requirements were as high as the State's when the tax was enacted). Pp. 257-260. 2. Credit unions are not "similar" to federal savings and loan associations within the meaning of § 5(h), as is clear not only from distinctions between the two under both federal and state law but also from the fact that Massachusetts savings banks and cooperative banks are more competitive with federal associations than credit unions are. Congress recognized that States might classify their own institutions in various ways, as Massachusetts has done in excluding credit unions from a large classification that includes state institutions more closely resembling the federal associations. Pp. 260-262. 372 Mass. 478, 363 N.E.2d 474, affirmed. Chester M. Howe, Boston, Mass., for appellants. S. Stephen Rosenfeld, Boston, Mass., for appellees. Mr. Justice STEVENS delivered the opinion of the Court. 1 This appeal challenges the power of the State of Massachusetts to impose a tax on federal savings and loan associations. Relying on a federal law forbidding States to tax federal associations more heavily than "similar" state institutions, appellants contend that the State's tax discriminates against federal associations because: (1) the state institutions subject to the tax are allowed a larger deduction for required additions to reserves than federal associations, and (2) the state tax does not apply to credit unions, which appellants believe to be "similar" to federal savings and loan associations. 2 In the Home Owners' Loan Act of 1933, Congress authorized the creation of federally chartered savings and loan associations. 48 Stat. 128. Section 5(h) of that Act, as amended, 76 Stat. 984, 12 U.S.C. § 1464(h) (1976 ed.), provides: 3 "No State, county, municipal, or local taxing authority shall impose any tax on such associations or their franchise, capital, reserves, surplus, loans, or income greater than that imposed by such authority on other similar local mutual or cooperative thrift and home financing institutions." 4 As enacted in 1966, the Massachusetts statute imposed an excise tax, measured by deposits and income, on state cooperative banks, state savings banks, and state and federal savings and loan associations. 1966 Mass. Acts, ch. 14, § 11. In 1973, the deposits aspect of the tax was invalidated as discriminatory. United States v. State Tax Comm'n, 481 F.2d 963 (CA1 1973). See n. 3, infra. The present case, brought in state court in 1975, challenges the income aspect of the tax. It was presented on stipulated facts to the Supreme Judicial Court of Massachusetts, which upheld the statute. 372 Mass. 478, 363 N.E.2d 474 (1977). We affirm. 5 * The state tax statute allows a financial institution to deduct from its taxable income any "minimum additions . . . to its guaranty fund or surplus required by law or the appropriate federal and state supervisory authorities." Mass.Gen.Laws Ann., ch. 63, § 11(b ) (West Supp.1977). As might be expected, the reserves required by state and federal regulators are not precisely the same. Before 1970, each federal association was required to adopt a charter providing for a minimum reserve equal to 10% of the association's capital. See 12 CFR § 544.1 (1977). This reserve was as large as, or larger than, the reserves that Massachusetts required its institutions to maintain.1 In 1970, federal associations were allowed to delete the reserve provision from their charters, a change that dropped their reserve requirement to 5% of checking and savings account balances. 35 Fed.Reg. 4044 (1970); 12 CFR §§ 544.8(c)(1), 563.13 (1977); 12 U.S.C. § 1726(b) (1976 ed.). More than three-quarters of the federal associations in Massachusetts adopted the change within a few months of the new regulation, and all but four have now amended their charters. The new requirement is lower than those set for state institutions. For this reason, the federal associations argue their tax deductions are smaller than those of state institutions; they contend that this disparity in deductions is the sort of discrimination that has been proscribed by federal law. 6 Section 5(h) of the Home Owners' Loan Act of 1933 "unequivocally bars discriminatory state taxation of the Federal Savings and Loan Associations." Laurens Federal Savings & Loan Assn. v. South Carolina Tax Comm'n, 365 U.S. 517, 523, 81 S.Ct. 719, 722, 5 L.Ed.2d 749. It is one of several laws passed by Congress to protect federally chartered financial institutions from "unequal and unfriendly competition" caused by state tax laws favoring state-chartered institutions.2 On its face, however, Massachusetts' tax scheme is not unfriendly or discriminatory. It applies a single neutral standard to state and federal institutions alike. The amount of the deduction depends on varying regulatory practices, but a tax is not invalid because it recognizes that state and federal regulations may differ. There is no reason to believe that § 5(h) was intended to force state and federal regulation into the same mold.3 7 Notwithstanding its neutral language, the federal associat ons argue that the tax is discriminatory in fact. They have not, however, established that it is unfairly burdensome in "practical operation." Michigan Nat. Bank v. Michigan, 365 U.S. 467, 476, 81 S.Ct. 659, 664, 5 L.Ed.2d 710. The record does not indicate that federal associations have suffered a significant handicap in competing with state institutions, or that any other federal policies have been thwarted.4 The lower reserve requirement, by making more funds available for dividends, may well give the associations a competitive advantage, despite the tax. Certainly the associations' rush to amend their charters in 1970 lends support to that conclusion. Any suggestion of discriminatory purpose is foreclosed by the fact that the tax was enacted when federal reserve requirements were as high as state requirements. II 8 Massachusetts does not impose its tax on credit unions. Arguing that credit unions in Massachusetts are "similar" to federal savings and loan associations, the associations claim entitlement to the credit unions' exemption. 9 There are indeed similarities between these two kinds of financial institutions. For example, both are characterized by mutual ownership and control; 12 CFR § 544.1 (1977); Mass.Gen.Laws Ann., ch. 171, §§ 10, 13, and 24 (West 1971 and Supp. 1977); and both are empowered to make loans secured by real estate. 12 U.S.C. § 1464(c) (1976 ed.); Mass.Gen.Laws Ann., ch. 171, § 24 (West Supp. 1977). But the institutions are far from identical. 10 Congress has long treated federally chartered credit unions differently from federally chartered savings and loan associations, giving the credit unions, but not the savings and loan associations, an exemption from state taxes. See 12 U.S.C. § 1768 (1976 ed.). In establishing insurance programs to protect members' deposits, Congress distinguished state and federal credit unions from state and federal savings and loan associations. See 12 U.S.C. §§ 1726(a) and 1781(a) (1976 ed.). Moreover, courts in other jurisdictions have generally rejected the claim that credit unions are "similar" under § 5(h) to federal savings and loan associations.5 11 The distinctions found in those jurisdictions have validity in Massachusetts as well. By law, Massachusetts credit unions must give preference to small personal loans, Mass.Gen.Laws Ann., ch. 171, § 24 (West Supp. 1977), while the primary lending role of federal savings and loan associations is "to provide for the financing of homes." 12 U.S.C. § 1464(a) (1976 ed.). Massachusetts credit unions may lend only to members, Mass.Gen.Laws Ann., ch. 171, § 24 (West Supp. 1977), while federal associations are not so limited. And, despite individual exceptions, there are major differences between the actual lending practices of state credit unions as a class and federal associations as a class.6 12 Of greater importance than these differences, however, is the fact that Massachusetts credit unions are not the federal associations' closest state-chartered competitors. Massachusetts savings banks and cooperative banks have much more in common with federal associations than do state credit unions; their business is unquestionably similar to that of the federal associations.7 These institutions are an important segment of Massachusetts' financial community.8 Any favoritism shown to Massachusetts credit unions falls as harshly on them as on the federal associations. Nonetheless, the Massachusetts Legislature has concluded that credit unions are not similar to state cooperative and savings banks or to state and federal savings and loan associations. 13 When Congress required that federal savings and loan associations be placed in the same classification as "similar" state institutions, it certainly did not assume that every local and mutual or cooperative thrift and home-financing institution is similar to a federal association. See 12 U.S.C. § 1464(h) (1964 ed.). It recognized that States might classify their own institutions in various ways. Massachusetts has excluded credit unions from a large classification that includes the institutions most closely resembling federal savings and loan associations. The composition of the class in which Massachusetts has placed the federal associations satisfies the federal statute's central purpose of protecting federal associations from discriminatory treatment. We conclude that Massachusetts has not imposed a greater tax on the federal associations than that imposed on other "similar" institutions.9 14 Accordingly, the judgment of the Supreme Judicial Court is affirmed. 15 So ordered. 16 Mr. Justice BLACKMUN, concurring in part and dissenting in part. 17 Section 5(h) of the Home Owners' Loan Act of 1933, as amended, 76 Stat. 984, 12 U.S.C. § 1464(h) (1976 ed.), reads: 18 "No State, county, municipal, or local taxing authority shall impose any tax on such associations or their franchise, capital, reserves, surplus, loans or income greater than that imposed by such authority on other similar local mutual or cooperative thrift and home financing institutions." 19 The Court, in speaking of this statute, has said: "This provision unequivocally bars discriminatory state taxation of the Federal Savings and Loan Associations." Laurens Federal Savings & Loan Assn. v. South Carolina Tax Comm'n, 365 U.S. 517, 523, 81 S.Ct. 719, 722, 5 L.Ed.2d 749 (1961). 20 I agree with the Court's ruling today on the first issue, namely, that the lesser reserve deduction available for federal savings and loan associations of itself does not demonstrate that the associations pay a greater tax than similar Massachusetts savings banks. 21 On the second issue, however, I am in disagreement with the Court and, to that extent, dissent from its opinion. For this issue, the important focus of the statute is on the word "similar," and the measure of the Commonwealth's allowable tax is only that imposed "on other similar local mutual or cooperative thrift and home financing institutions." 22 There is no argument here that Massachusetts credit unions are not "local mutual or cooperative thrift and home financing institutions," within the meaning of § 5(h). See Mass.Gen.Laws Ann., ch. 171, § 2 (West 1971). The Supreme Judicial Court so found, 372 Mass. 478, 492, 363 N.E.2d 474, 483 (1977), and no challenge to that finding is made here. The question, then, is whether Massachusetts credit unions are "similar" to federal savings and loan associations. If they are similar, the tax Massachusetts would impose on the federal entities, see Mass.Gen.Laws Ann., ch. 63, § 11 (West Supp.1977), violates the statute, for the Commonwealth's excise tax does not apply at all to Massachusetts credit unions. 23 The Court, in construing a similar federal statute, Rev.Stat. § 5219, as amended, 12 U.S.C. § 548(1)(b), which had barred state taxation of the shares of national banks "at a greater rate than is assessed upon other moneyed capital . . . coming into competition with the business of national banks," and at a rate higher than the highest rates assessed upon business corporations, observed that Congress intended "to prohibit only those systems of state taxation which discriminate in practical operation against national banking associations or their shareholders as a class." Tradesmens Nat. Bank v. Oklahoma Tax Comm'n, 309 U.S. 560, 567, 60 S.Ct. 688, 692, 84 L.Ed. 947 (1940); Michigan Nat. Bank v. Michigan, 365 U.S. 467, 473, 81 S.Ct. 659, 5 L.Ed.2d 710 (1961). The policy of § 5(h) obviously is to assure that the States do not put federal associations to any competitive disadvantage with respect to local savings institutions. 24 The statutory term "similar" usually, and certainly here, does not mean "identical."1 The Massachusetts credit union and the federal savings and loan association are "similar" with respect to their fundamental elements. Each has mutuality of ownership and control. Each has the pronounced ability to attract savings. Each is empowered to make first mortgage residential real estate loans on substantially the same terms and to approximately the same extent. The Massachusetts credit union has the statutory authority to make loans secured by first mortgages on real estate for terms up to 30 years, for 90% of the value of the property, and to a maximum amount of $40,000. See Mass.Gen.Laws Ann., ch. 171, §§ 24(B)(a)(4) and (b)(8) (west supp.1977-1978), and 1977 Mas .Acts, ch. 20. A federal association may make real estate loans for terms up to 30 years, for 80% of the value of the property, and to a maximum amount of $55,000. See 12 U.S.C. § 1464(c) (1976 ed.); 12 CFR § 545.6-1(a)(1)(i) (1977). 25 Although the Massachusetts credit union, to be sure, may make loans only to members and is required to give "preference" to "personal loans," see Mass.Gen.Laws Ann., ch. 171, § 24 (West Supp.1977), this distinction is minor and does not demonstrate that the credit union is not "similar" to the federal association, within the meaning of § 5(h). There is no statutory limitation on the membership of the Massachusetts credit union, other than self-imposed conditions of residence, occupation, or association, see Mass.Gen.Laws Ann., ch. 171, § 7(c) (West 1971), and a small deposit will qualify a prospective borrower as a member. In addition, there is no statutory enforcement of the "preference" in favor of personal loans. The Supreme Judicial Court observed, 372 Mass., at 493-494, 363 N.E.2d, at 484, that in 1972 Massachusetts credit unions placed 30.1% of their total dollar investments in real estate mortgages, and 42% of their total loans in real estate mortgages.2 As of the end of 1973, they had $329 million as outstanding mortgage loans. Large Massachusetts credit unions may invest up to 80% of their assets in real estate loans, see Mass.Gen.Laws Ann., ch. 171, § 24(B)(b)(7) (west supp.1977). 26 All this leads me to conclude that the Massachusetts credit union in all pertinent respects is "similar," and not dissimilar, to the federal savings and loan association.3 Both perform the same functions in that they attract savings upon which they pay interest, and they make loans, substantial amounts of which are first mortgage residential loans. It follows, in my view, that, because of these similarities, the exemption of Massachusetts credit unions from the Massachusetts excise tax to which federal savings and loan associations are subject renders the tax invalid, under § 5(h), as applied to the federal institutions. 27 I therefore would reverse the judgment of the Supreme Judicial Court of Massachusetts. 1 Massachusetts savings banks must set aside 71/2% of deposits. Mass.Gen.Laws Ann., ch. 168, § 58 (West 1971). State cooperative banks must reserve 10% of their assets. Ch. 170, § 38. The reserve requirement for state savings and loan associations is not spelled out by statute. Cf., ch. 93, § 34 (West Supp.1977). 2 Mercantile Bank v. New York, 121 U.S. 138, 155, 7 S.Ct. 826, 835, 30 L.Ed. 895. See 12 U.S.C. § 548 (1976 ed.) (national banks); 12 U.S.C. § 627 (1976 ed.) (corporations federally authorized to engage in foreign banking). 3 Indeed, the federal statute protects federal associations from being forced into the state regulatory mold. The deposits aspect of the tax was invalidated partly because its apparently neutral provisions were calculated to impose state regulatory requirements on federal associations. The statute permitted an institution to take a deduction for loans secured by out-of-state real estate but only if the property was within 50 miles of the institution's home office. Mass.Gen.Laws Ann., ch. 63, § 11 (West Supp. 1977). This limit reflected state restrictions on making out-of-state loans more than 50 miles from the home office. United States v. State Tax Comm'n, 481 F.2d 963, 968-969, n. 6 (CA1 1973). But federal associations are empowered by federal law to make such loans up to 100 miles from home. 12 U.S.C. § 1464(c) (1976 ed.). By treating the state and federal institutions as though they were subject to the same regulatory limits, the statute exacted a higher tax from federal associations and tended at the same time to force federal associations to follow state rather than federal regulations. It is difficult to conceive of a nondiscriminatory reason for the 50-mile limit on deductions. For these reasons, the Court of Appeals for the First Circuit held the tax discriminatory under § 5(h). 481 F.2d, at 970. 4 Cf. n. 3, supra. The sparse evidence introduced on this point by the associations is ambiguous at best. For example, in three of the seven years from 1968 to 1975, federal associations put a larger proportion of their assets into required reserves than did state savings banks, which are the dominant state mutual institutions. From 1970 through 1973, federal associations made smaller contributions to surplus than state savings banks, but in these years the federal associations may have been simply consuming reserves built up under the stringent requirements of their pre-1970 charters. 5 See Manchester Federal Savings & Loan Assn. v. State Tax Comm'n, 105, N.H. 17, 191 A.2d 529 (1963); First Federal Savings & Loan Assn. v. Connelly, 142 Conn. 483, 115 A.2d 455 (1955), appeal dismissed, 350 U.S. 927, 76 S.Ct. 305, 100 L.Ed. 811; State v. Minnesota Federal Savings & Loan Assn., 218 Minn. 229, 15 N.W.2d 568 (1944). 6 As the Supreme Judicial Court noted: "In 1972, . . . credit unions placed 30.1% of their total investments (in dollars) in real estate mortgages. Federal savings and loan ass ciations had 87.7% of their total investments (in dollars) in real estate mortgages. . . . Federal savings and loan associations had almost 98% of their total loans in real estate mortgages . . . . Credit unions, on the other hand, had only about 42% of their total loans in real estate mortgages." 372 Mass. 478, 493-494, 363 N.E.2d 474, 484 (1977). 7 See, e. g., Commissioner of Corporations & Taxation v. Flaherty, 306 Mass. 461, 28 N.E.2d 433 (1940); Springfield Institution for Savings v. Worcester Federal Savings & Loan Assn., 329 Mass. 184, 107 N.E.2d 315 (1952). Massachusetts cooperative banks had more than 97% of their total loans in real estate mortgages in 1972, while state savings banks had 95% of their loans in real estate mortgages. Federal associations had almost 98% of their loans in real estate mortgages. Cooperative banks had 80.4% of their total dollar investments in real estate mortgages, and savings banks had 65.3% in such mortgages. The figure for federal associations was 87.7%. See 372 Mass., at 493, 363 N.E.2d, at 484. 8 Their assets greatly exceed those of state credit unions. State savings banks had assets of almost $18.5 billion in 1973; cooperative banks had almost $3 billion in assets; federal associations had almost $2.5 billion; and credit unions had over $1 billion. App. 131-132; Annual Report of the Commissioner of Banks, Commonwealth of Massachusetts, Division of Banks and Loan Agencies, Sec. B (Credit Unions), iv (1973). 9 Only two of the associations' remaining attacks on the statute deserve mention. They claim that Massachusetts' tax is not one of the enumerated taxes approved by § 5(h), which allows a nondiscriminatory "tax on [federal] associations or their franchise, capital, reserves, surplus, loans, or income." 12 U.S.C. § 1464(h) (1976 ed.). Whether or not this tax may be characterized as a "franchise" or an "income" tax, it is certainly a tax "on" federal associations and therefore within the ambit of § 5(h). The federal associations also argue that the state statute violates the Commerce Clause by creating a risk of multiple taxation. They claim that some neighboring State may at some time in the future attempt to tax the income from loans secured by property in that State. This argument is wholly speculative and u supported by evidence in the record. 1 See Commonwealth v. Fontain, 127 Mass. 452, 454 (1879); Chicago v. Vaccarro, 408 Ill. 587, 601, 97 N.E.2d 766, 773 (1951); Thomas v. Consumers Power Co., 58 Mich.App. 486, 493-494, 228 N.W.2d 786, 790 (1975); Miller v. Allstate Ins. Co., 66 Wash.2d 871, 875, 405 P.2d 712, 714 (1965). 2 Federal associations had 87.7% of their total dollar investments in real estate mortgages and almost 98% of their total loans in such mortgages. 3 See Message of the President to the Congress on Tax Reduction and Reform, Jan. 20, 1978, 14 Weekly Comp. of Pres. Docs. 158, 172.

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437 U.S. 214 98 S.Ct. 2311 57 L.Ed.2d 159 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.ROBBINS TIRE AND RUBBER COMPANY. No. 77-911. Argued April 26, 1978. Decided June 15, 1978. Syllabus After the National Labor Relations Board (NLRB) filed an unfair labor practice complaint against respondent employer, respondent requested, pursuant to the Freedom of Information Act (FOIA), that the NLRB make available prior to the hearing copies of all potential witnesses' statements collected during the NLRB's investigation. This request was denied on the ground that the statements were exempt from disclosure under, inter alia, Exemption 7(A) of the FOIA, which provides that disclosure is not required of "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records . . . would interfere with enforcement proceedings." Respondent then filed an action in District Court seeking disclosure of the statements and injunctive relief. That court held that Exemption 7(A) did not apply because the NLRB did not claim that release of the statements would pose any unique or unusual danger of interference with the particular enforcement proceeding, and hence directed the NLRB to provide the statements for copying prior to any hearing. The Court of Appeals affirmed, holding that the NLRB had failed to sustain its burden of demonstrating the availability of Exemption 7(A) because it had introduced no evidence that interference with the unfair labor practice proceeding in the form of witness intimidation was likely to occur in this particular case. Held: The Court of Appeals erred in holding that the NLRB was not entitled to withhold the witness statements under Exemptio 7(A). Pp. 220-243. (a) Exemption 7(A)'s language does not support an interpretation that determination of "interference" under the Exemption can be made only on an individual, case-by-case basis, and, indeed, the language of Exemption 7 as a whole tends to suggest the contrary. Nor is such an interpretation supported by other portions of the FOIA providing for disclosure of segregable portions of records and for in camera review of documents, and placing the burden of justifying nondisclosure on the Government. Pp. 223-224. (b) Exemption 7(A)'s legislative history indicates that Congress did not intend to prevent federal courts from determining that, with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally "interfere with enforcement proceedings," and, more particularly, did not intend to overturn the NLRB's longstanding rule against prehearing disclosure of witnesses' statements. Pp. 224-236. (c) Witness statements in pending unfair labor practice proceedings are exempt from FOIA disclosure at least until completion of the NLRB's hearing, since the release of such statements necessarily would involve the kind of harm that Congress believed would constitute an "interference" with NLRB enforcement proceedings—that of giving a party litigant earlier and greater access to the NLRB's case than he would otherwise have. Thus, here the NLRB met its burden of demonstrating that disclosure of the witnesses' statements in question "would interfere with enforcement proceedings," since the dangers posed by premature release of the statements would involve precisely the kind of "interference with enforcement proceedings" that Exemption 7(A) was designed to avoid, the most obvious risk of such "interference" being that employers or, in some cases, unions will coerce or intimidate employees and others who have given statements, in an effort to make them change their testimony or not testify at all. Pp. 236-242. 563 F.2d 724, reversed. Carl L. Taylor, Washington, D. C., for petitioner. William M. Earnest, for respondent. Mr. Justice MARSHALL delivered the opinion of the Court. 1 The question presented is whether the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976 ed.), requires the National Labor Relations Board to disclose, prior to its hearing on an unfair labor practice complaint, statements of witnesses whom the Board intends to call at the hearing. Resolution of this question depends on whether production of the material prior to the hearing would "interfere with enforcement proceedings" within the meaning of Exemption 7(A) of FOIA, 5 U.S.C. § 552(b)(7)(A) (1976 ed.). 2 * Following a contested representation election in a unit of respondent's employees, the Acting Regional Director of the NLRB issued an unfair labor practice complaint charging respondent with having committed numerous violations of § 8(a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1), during the pre-election period.1 A hearing on the complaint was scheduled for April 27, 1976. On March 31, 1976, respondent wrote to the Acting Regional Director and requested, pursuant to FOIA, that he make available for inspection and copying, at least seven days prior to the hearing, copies of all potential witnesses' statements collected during the Board's investigation. The Acting Regional Director denied this request on April 2, on the ground that this material was exempt from the disclosure requirements of FOIA by various provisions of the Act, see 5 U.S.C. §§ 552(b)(5), (7)(A), (C), (D) (1976 ed.). He placed particular reliance on Exemption 7(A), which provides that disclosure is not required of "matters that are . . . investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . interfere with enforcement proceedings." 5 .S.C. § 552(b)(7)(A) (1976 ed.). 3 Respondent appealed to the Board's General Counsel. Before expiration of the 20-day period within which FOIA requires such appeals to be decided, 5 U.S.C. § 552(a)(6)(A)(ii) (1976 ed.), respondent filed this action in the United States District Court for the Northern District of Alabama, pursuant to 5 U.S.C. § 552(a)(4)(B) (1976 ed.). The complaint sought not only disclosure of the statements, but also a preliminary injunction against proceeding with the unfair labor practice hearing pending final adjudication of the FOIA claim and a permanent injunction against holding the hearing until the documents had been disclosed. At argument in the District Court, the Board contended, inter alia, that these statements were exempt from disclosure under Exemption 7(A), because their production would "interfere" with a pending enforcement proceeding. The District Court held that, since the Board did not claim that release of the documents at issue would pose any unique or unusual danger of interference with this particular enforcement proceeding, Exemption 7(A) did not apply. App. 62, 91. It therefore directed the Board to provide the statements for copying on or before April 22, 1976, or at least five days before any hearing where the person making the statement would be called as a witness. 4 On the Board's appeal, the United States Court of Appeals for the Fifth Circuit commenced its discussion by observing that while "[t]his is a [FOIA] case, . . . it takes on the troubling coloration of a dispute about the discovery rights . . . in [NLRB] proceedings." 563 F.2d 724, 726 (1977).2 It concluded first that the legislative history of certain amendments to FOIA in 1974 demonstrated that Exemption 7(A) was to be available only where there was a specific evidentiary showing of the possibility of actual interference in an individual case. Id., at 728. It therefore framed the Exemption 7(A) issue as "whether pre-hearing disclosure of the contents of statements made by those prepared to testify in support of the Board's case would actually 'interfere' with the Board's case." Id., at 727. 5 In addressing this question, the Court of Appeals rejected the Board's argument that the premature revelation of its case that would flow from production of the statements prior to the hearing was the kind of "interference" that would justify nondisclosure under the 1974 amendments. Reasoning that the only statements sought were those of witnesses whose prior statements would, under the Board's own rules, be disclosed to respondent following the witnesses' hearing testimony, the court also rejected as inapplicable the argument that potential witnesses would refrain from giving statements at all if prehearing disclosure were available. Id., at 729-731. Finally, while the Court of Appeals agreed with the Board that there was "some risk of interference . . . in he form of witness intimidation" during the five-day period between disclosure and the hearing under the District Court's order, it held that the Board had failed to sustain its burden of demonstrating the availability of Exemption 7(A), because it had "introduced [no] evidence tending to show that this kind of intimidation" was in fact likely to occur in this particular case. Id., at 732. Rejecting the Board's other claimed bases of exemption3 the Court of Appeals affirmed. 6 The Board filed a petition for a writ of certiorari, seeking review, inter alia,4 of the Exemption 7(A) ruling below, on the ground that the decision was in conflict with the weight of Circuit authority that had followed the lead of the United States Court of Appeals for the Second Circuit in Title Guarantee Co. v. NLRB, 534 F.2d 484, cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976).5 There, on similar facts, the court held that statements of employees and union representatives obtained in a NLRB investigation leading to an unfair labor practice charge were exempt from disclosure under Exemption 7(A) until the completion of all reasonably foreseeable administrative and judicial proceedings on the charge. Rejecting the employer's contention that the Board must make a particularized showing of likely interference in each individual case, the Second Circuit found that such interference would "necessarily" result from the production of the statements. 534 F.2d, at 491. 7 We granted certiorari to resolve the conflict among the Circuits on this important question of federal statutory law. 434 U.S. 1061, 98 S.Ct. 1231, 55 L.Ed.2d 760 (1978). We now reverse the judgment of the Fifth Circuit. II 8 We have had several occasions recently to consider the history and purposes of the original FOIA of 1966. See EPA v. Mink, 410 U.S. 73, 79-80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973); Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). As we have repeatedly emphasized, "the Act is broadly conceived," EPA v. Mink, supra, 410 U.S. at 80, 93 S.Ct. at 832, and its "basic policy" is in favor of disclosure, Department of Air Force v. Rose, supra, 425 U.S. at 361, 96 S.Ct. at 1599. In 5 U.S.C. § 552(b) (1976 ed.). Congress carefully structured nine exemptions from the otherwise mandatory disclosure requirements in order to protect specified confidentiality and privacy interests.6 But unless the requested material falls within one of these nine statutory exemptions, FOIA requires that records and material in the possession of federal agencies be made available on demand to any member of the general public. 9 Exemption 7 as originally enacted permitted nondisclosure of "investigatory files compiled for law enforcement purposes except to the extent available by law to a private party." 80 Stat. 251. In 1974, this exemption was rewritten to permit the nondisclosure of "investigatory records compiled for law enforcement purposes," but only to the extent that producing such records would involve one of six specified dangers. The first of these, with which we are here concerned, is that production of the records would "interfere with enforcement proceedings." 10 The Board contends that the original language of Exemption 7 was expressly designed to protect existing NLRB policy forbidding disclosure of statements of prospective witnesses until after they had testified at unfair labor practice hearings. In its view, the 1974 amendments preserved Congress' original intent to protect witness statements in unfair labor practice proceedings from premature disclosure, and were directed primarily at case law that had applied Exemption 7 too broadly to cover any material, regardless of its nature, in an investigatory file compiled for law enforcement purposes. The Board urges that a particularized, case-by-case showing is neither required nor practical, and that witness statements in pending unfair labor practice proceedings are exempt as a matter of law from disclosure while the hearing is pending. 11 Respondent disagrees with the Board's analysis of the 1974 amendments. It argues that the legislative history conclusively demonstrates that the determination of whether disclosure of any material would "interfere with enforcement proceedings" must be made on an individual, case-by-case basis. While respondent agrees that the statements sought here are "investigatory files compiled for law enforcement purposes," and that they are related to an imminent enforcement proceeding, it argues that the Board's failure to make a specific factual showing that their release would interfere with this proceeding defeats the Board's Exemption 7 claim. A. 12 The starting point of our analysis is with the language and structure of the statute. We can find little support in the language of the statute itself for respondent's view that determinations of "interference" under Exemption 7(A) can be made only on a case-by-case basis. Indeed, the literal language of Exemption 7 as a whole tends to suggest that the contrary is true. The Exemption applies to: 13 "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel." 14 There is a readily apparent difference between subdivision (A) and subdivisions (B), (C), and (D). The latter subdivisions refer to particular cases—"a person," "an unwarranted invasion," "a confidential source"—and thus seem to require a showing that the factors made relevant by the statute are present in each distinct situation. By contrast, since subdivision (A) speaks in the plural voice about "enforcement proceedings," it appears to contemplate that certain generic determinations might be made. 15 Respondent points to other provisions of FOIA in support of its interpretation. It suggests that, because FOIA expressly provides for disclosure of segregable portions of records and for in camera review of documents, and because the statute places the burden of justifying nondisclosure on the Government, 5 U.S.C. §§ 552(a)(4)(B), (b) (1976 ed.), the Act necessarily contemplates that the Board must specifically demonstrate in each case tha disclosure of the particular witness' statement would interfere with a pending enforcement proceeding. We cannot agree. The in camera review provision is discretionary by its terms, and is designed to be invoked when the issue before the District Court could not be otherwise resolved; it thus does not mandate that the documents be individually examined in every case. Similarly, although the segregability provision requires that nonexempt portions of documents be released, it does not speak to the prior question of what material is exempt. Finally, the mere fact that the burden is on the Government to justify nondisclosure does not, in our view, aid the inquiry as to what kind of burden the Government bears. 16 We thus agree with the parties that resolution of the question cannot be achieved through resort to the language of the statute alone. Accordingly, we now turn to an examination of the legislative history. B 17 In originally enacting Exemption 7, Congress recognized that law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it came time to present their case. Foremost among the purposes of this Exemption was to prevent "harm [to] the Government's case in court," S.Rep.No.813, 89th Cong., 1st Sess. (1965), reprinted in Freedom of Information Act Source Book, Subcommittee on Administrative Practice & Procedure, Senate Judiciary Committee, S.Doc. No. 93-82, p. 44 (1974) (hereinafter cited as 1974 Source Book), by not allowing litigants "earlier or greater access" to agency investigatory files than they would otherwise have, H.R.Rep.No.1497, 89th Cong., 2d Sess. (1966), U.S.Code Cong. & Admin.News 1966, p. 2418, reprinted in 1974 Source Book 32. Indeed, in an unusual, post-passage reconsideration vote, the Senate modified the language of this Exemption specifically to meet Senator Humphrey's concern that it might be construed to require disclosure of "statements of agency witnesses" prior to the time they were called on to testify in agency proceedings. Id., at 110. 18 Senator Humphrey was particularly concerned that the initial version of the Exemption passed by the Senate might be "susceptible to the interpretation that once a complaint of unfair labor practice is filed by the General Counsel of the NLRB, access could be had to the statements of all witnesses, whether or not these statements are relied upon to support the complaint." Ibid. He argued against this, noting that "[w]itnesses would be loath to give statements if they knew that their statements were going to be made known to the parties before the hearing," Id., at 111, and proposed adding another exemption to make clear that "statements of agency witnesses" would be exempt "until such witnesses are called to testify in an action or proceeding," id., at 110.7 In direct response to what he described as Senator Humphrey's "valuable suggestion," Senator Long offered an amendment resulting in the version of Exemption 7 actually passed in 1966, which Senator Humphrey agreed would "take care of the situation." Id., at 111. 19 In light of this history, the Board is clearly correct that the 1966 Act was expressly intended to protect against the mandatory disclosure through FOIA of witnesses' statements prior to an unfair labor practice proceed ng. From one of the first reported decisions under FOIA, Barceloneta Shoe Corp. v. Compton, 271 F.Supp. 591 (PR 1967), through the time of the 1974 amendments, the courts uniformly recognized this purpose. Thus, in Wellman Industries, Inc. v. NLRB, 490 F.2d 427 (CA4), cert. denied, 419 U.S. 834, 95 S.Ct. 61, 42 L.Ed.2d 61 (1974), the Court of Appeals held that affidavits obtained by an NLRB investigator during an inquiry into union objections to a representation election, which ultimately led to the filing of an unfair labor practice charge, were exempt from disclosure sought by the employer prior to the hearing on the complaint. It noted that employees might become unwilling to make " 'uninhibited and non-evasive statement[s]' " if disclosure were granted, 490 F.2d, at 431, quoting NLRB v. National Survey Service, Inc., 361 F.2d 199, 206 (CA7 1966), and emphasized that application of the exemption was "necessary in order to prevent premature disclosure of an investigation so that the Board can present its strongest case in court." 490 F.2d, at 431. Accord, NLRB v. Clement Bros. Co., 407 F.2d 1027, 1031 (CA5 1969). C 20 In 1974 Congress acted to amend FOIA in several respects. The move to amend was prompted largely by congressional disapproval of our decision in EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), regarding the availability of in camera review of classified documents. Congress was also concerned that administrative agencies were being dilatory in complying with the spirit of the Act and with court decisions interpreting FOIA to mandate disclosure of information to the public. See, e. g., Administration of the Freedom of Information Act, H.R.Rep.No.92-1419 (1972),8 reprinted in 1975 Source Book 18, 79-80. As the amending legislation was reported out of the respective Committees, no change in Exemption 7 was recommended. See n. 14, infra. The 1974 amendment of Exemption 7 resulted instead from a proposal on the floor by Senator Hart during Senate debate. 21 Senator Hart, in introducing his floor amendment, noted that the original intent of the 1966 Congress "was to prevent harm to the Government's case in court by not allowing an opposing litigant earlier or greater access to investigatory files than he would otherwise have." 1975 Source Book 332. He indicated his continued agreement with this purpose, id., at 333, but stated that recent court decisions had gone beyond this original intent by shielding from disclosure information that Congress had not intended to protect. Senator Hart emphasized his concern that "material cannot be and ought not be exempt merely because it can be categorized as an investigatory file compiled for law enforcement purposes." Ibid. 22 In colloquy with Senator Kennedy on the floor, Senator Hart stated specifically, id., at 349, that the amendment's purpose was to respond to four decisions of the District of Columbia Circuit,9 commencing with the en banc decision in Weisberg v. United States Dept. of Justice, 160 U.S.App.D.C. 71, 489 F.2d 1195 (1973), cert. denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772 (1974). There, the plaintiff had sought disclosure of certain material in investigatory files relating to the assassination of President Kennedy, files that had been compil d 10 years before. Although the court acknowledged that no enforcement proceedings were then pending or contemplated, it held that all the agency need show to be entitled to withhold under Exemption 7 was that the records were investigatory in nature and had been compiled for law enforcement purposes. 160 U.S.App.D.C., at 74, 489 F.2d, at 1198. The court adhered to this holding in Aspin v. Department of Defense, 160 U.S.App.D.C. 231, 237, 491 F.2d 24, 30 (1973), stating that even "after the termination of investigation and enforcement proceedings," material found in an investigatory file is entirely exempt. In Ditlow v. Brinegar, 161 U.S.App.D.C. 154, 494 F.2d 1073 (1974), the court indicated that, after Weisberg, the only question before it was whether the requested material was found in an investigatory file compiled for law enforcement purposes. Finally, in Center for National Policy Review on Race and Urban Issues v. Weinberger, 163 U.S.App.D.C. 368, 502 F.2d 370 (1974), the court held that the investigatory file exemption was available even if an enforcement proceeding were neither imminent nor likely either at the time of the compilation or at the time disclosure was sought. These four cases, in Senator Hart's view, erected a "stone wall" against public access to any material in an investigatory file. 1975 Source Book 332.10 23 Senator Hart believed that his amendment would rectify these erroneous judicial interpretations and clarify Congress' original intent in two ways. First, by substituting the word "records" for "files," it would make clear that courts had to consider the nature of the particular document as to which exemption was claimed, in order to avoid the possibility of impermissible "commingling" by an agency's placing in an investigatory file material that did not legitimately have to be kept confidential. Id., at 451. Second, it would explicitly enumerate the purposes and objectives of the Exemption, and thus require reviewing courts to "loo[k] to the reasons" for allowing withholding of investigatory files before making their decisions. Id., at 334. The "woode[n] and mechanica[l]" approach taken by the D.C. Circuit and disapproved by Congress would thereby be eliminated. Id., at 335 (remarks of Sen. Kennedy). As Congressman Moorhead explained to the House, the Senate amendment was needed to address "recent court decisions" that had applied the exemptions to investigatory files "even if they ha[d] long since lost any requirement for secrecy." Id., at 378. 24 Thus, the thrust of congressional concern in its amendment of Exemption 7 was to make clear that the Exemption did not endlessly protect material simply because it was in an investigatory file. Although, as indicated previously, no change in this section was reported out of committee, both Senate and House Committees had considered proposals to amend the provision.11 The Hart amendment was identical in respects here relevant to a proposal submitted during the hearings by the Administrative Law Division of the American Bar Association.12 2 Senate Hearings 158. The purpose of this proposal, according to the Chairman of the ABA Administrative Law Division, was to indicate that "with passage of time, . . . when the investigation is all over and the purpose and point of it has expired, it would no longer be an interference with enforcement proceedings and there ought to be disclosure." Id., at 149. The tenor of this description of the statutory language clearly suggests that the release of information in investigatory files prior to the completion of an actual, contemplated enforcement proceeding was precisely the kind of interference that Congress continued to want to protect against. Indeed, Senator Hart stated specifically that Exemption 7(A) would apply "whenever the Government's case in court—a concrete prospective law enforcement proceeding—would be harmed by the premature release of evidence or information . . . ." 1975 Source Book 333. 25 That the 1974 Congress did not mean to undercut the intent of the 1966 Congress with respect to Senator Humphrey's concern about interference with pending NLRB enforcement proceedings is apparent from the emphasis that both Senators Kennedy and Hart, the leaders in the debate on Exemption 7, placed on the fact that the amendment represented no radical departure from prior case law. While the D.C.Circuit decisions discussed above were repeatedly mentioned and condemned in the debates, nowhere do the floor debates or Committee Reports condemn the decisions holding that Exemption 7 protected witnesses' statements in pending NLRB proceedings from disclosure, see supra, at 226, although Congress was clearly aware of these decisions.13 As Senator Hart concluded in his introductory remarks in support of the amendment: 26 "This amendment is by no means a radical departure from existing case law under the Freedom of Information Act. Until a year ago the courts looked to the reasons for the seventh exemption before allowing the withholding of documents. That approach is in keeping with the intent of Congress and by this amendment we wish to reinstall it as the basis for access to information." 1975 Source Book 334.14 27 Senator Kennedy confirmed that "by accepting [this] amendment we will be reemphasizing and clarifying what the law presently requires." Id., at 336. The emphasis that was placed on the limited scope of the amendment makes it more than reasonable to conclude that Congress intended to preserve existing law relating to NLRB proceedings—case law that had looked to the "reasons" for the Exemption and found them to be present where an unfair labor practice proceeding was pending and the documents sought were potential witnesses' statements. D 28 In the face of this history, respondent relies on Senator Hart's floor statement that "it is only relevant" to determine whether an interference would result "in the context of the particular enforcement proceeding." Id., at 333. Respondent argues that this statement means that in each case the court must determine whether the material of which disclosure is sought would actually reveal the Government's case prematurely, result in witness intimidation, or otherwise create a demonstrable interference with the particular case. 29 We believe that respondent's reliance on this statement is misplaced. Although Congress could easily have required in so many words that the Government in each case show a particularized risk to its individual "enforcement proceedin[g]," it did not do so;15 the statute, if anything, seems to draw a distinction in this respect between subdivision (A) and subdivisions (B), (C), and (D), see supra, at 223-224. Senator Hart's words are ambiguous, moreover, and must be read in light of his primary concern: that by extending blanket protection to anything labeled an investigatory file, the D.C. Circuit had ignored Congress' original intent. His remarks plainly do not preclude a court from considering whether "particular" types of enforcement proceedings, such as NLRB unfair labor practice proceedings, will be interfered with by particular types of disclosure. 30 Res ondent also relies on President Ford's message accompanying his veto of this legislation, and on the debate which led to Congress' override of the veto. The President's primary concern was with the congressional response to this Court's decision in EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), concerning in camera judicial review of classified documents under Exemption 1. In addition, however, the President cited what in his view were the onerous new requirements of Exemption 7 that would require the Government to "prove . . . separately for each paragraph of each document—that disclosure 'would' cause" a specific harm. 1975 Source Book 484. The leading supporters of the 1974 amendments, however, did not accept the President's characterization; instead they indicated, with regard to the amended Exemption 7, that the President's suggestions were "ludicrous," id., at 406 (remarks of Rep. Moorhead), and that the "burden is substantially less than we would be led to believe by the President's message," id., at 450 (remarks of Sen. Hart). 31 What Congress clearly did have in mind was that Exemption 7 permit nondisclosure only where the Government "specif[ies]" that one of the six enumerated harms is present, id., at 413 (remarks of Rep. Reid), and the court, reviewing the question de novo, agrees that one of those six "reasons" for nondisclosure applies. See supra, at 232. Thus, where an agency fails to "demonstrat[e] that the . . . documents [sought] relate to any ongoing investigation or . . . would jeopardize any future law enforcement proceedings," Exemption 7(A) would not provide protection to the agency's decision. 1975 Source Book 440 (remarks of Sen. Kennedy). While the Court of Appeals was correct that the Amendment of Exemption 7 was designed to eliminate "blanket exemptions" for Government records simply because they were found in investigatory files compiled for law enforcement purposes, we think it erred in concluding that no generic determinations of likely interference can ever be made. We conclude that Congress did not intend to prevent the federal courts from determining that, with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally "interfere with enforcement proceedings." III 32 The remaining question is whether the Board has met its burden of demonstrating that disclosure of the potential witnesses' statements at this time "would interfere with enforcement proceedings." A proper resolution of this question requires us to weigh the strong presumption in favor of disclosure under FOIA against the likelihood that disclosure at this time would disturb the existing balance of relations in unfair labor practice proceedings, a delicate balance that Congress has deliberately sought to preserve and that the Board maintains is essential to the effective enforcement of the NLRA. Although reasonable arguments can be made on both sides of this issue, for the reasons that follow we conclude that witness statements in pending unfair labor practice proceedings are exempt from FOIA disclosure at least until completion of the Board's hearing. 33 Historically, the NLRB has provided little prehearing discovery in unfair labor practice proceedings and has relied principally on statements such as those sought here to prove its case. While the NLRB's discovery policy has been criticized, the Board's position that § 6 of the NLRA, 29 U.S.C. § 156, commits the formulation of discovery practice to its discretion has generally been sustained by the lower courts.16 A profound alteration in the Board's trial strategy in unfair labor practice cases would thus be effectuated if the Board were required, in every case in which witnesses' statements were sought under FOIA prior to an unfair labor practice proceeding, to make a particularized showing that release of these statements would interfere with the proceeding.17 34 Not only would this change the substantive discovery rules, but it would do so through mechanisms likely to cause substantial delays in the adjudication of unfair labor practice charges.18 In addition to having a duty under FOIA to provide public access to its processes, the NLRB is charged with the duty of effectively investigating and prosecuting violations of the labor laws. See 29 U.S.C. §§ 160, 161. To meet its latter duty, the Board can be expected to continue to claim exemptions with regard to prehearing FOIA discovery requests, and numerous court contests will thereby ensue. Unlike ordinary discovery contests, where rulings are generally not appealable until the conclusion of the proceedings, an agency's denial of a FOIA request is immediately reviewable in the district court, and the district court's decision can then be reviewed in the court of appeals. The potential for delay and for restructuring of the NLRB's routine adjudications of unfair labor practice charges from requests like respondent's is thus not insubstantial. See n. 17, supra. 35 In the absence of clear congressional direction to the contrary, we should be hesitant under ordinary circumstances to interpret an mbiguous statute to create such dislocations. Not only is such direction lacking, but Congress in 1966 was particularly concerned that premature production of witnesses' statements in NLRB proceedings would adversely affect that agency's ability to prosecute violations of the NLRA, and, as indicated above, the legislative history of the 1974 amendments affords no basis for concluding that Congress at that time intended to create any radical departure from prior, court-approved Board practice. See supra, at 224-234. Our reluctance to override a long tradition of agency discovery, based on nothing more than an amendment to a statute designed to deal with a wholly different problem, is strengthened by our conclusion that the dangers posed by premature release of the statements sought here would involve precisely the kind of "interference with enforcement proceedings" that Exemption 7(A) was designed to avoid. A. 36 The most obvious risk of "interference" with enforcement proceedings in this context is that employers or, in some cases, unions will coerce or intimidate employees and others who have given statements, in an effort to make them change their testimony or not testify at all. This special danger flowing from prehearing discovery in NLRB proceedings has been recognized by the courts for many years, see, e. g., NLRB v. Vapor Blast Mfg. Co., 287 F.2d 402, 407 (CA7), cert. denied, 368 U.S. 823, 82 S.Ct. 42, 7 L.Ed.2d 28 (1961); NLRB v. National Survey Service, Inc., 361 F.2d 199, 206 (CA7 1966); NLRB v. Lizdale Knitting Mills, 523 F.2d 978, 980 (CA2 1975), and formed the basis for Senator Humphrey's particular concern, see supra, at 225. Indeed, Congress recognized this danger in the NLRA itself, and provided in § 8(a)(4) that it is an unfair labor practice for an employer "to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter." 29 U.S.C. § 158(a)(4). See NLRB v. Scrivener, 405 U.S. 117, 121, 92 S.Ct. 798, 801, 31 L.Ed.2d 79 (1972). Respondent's argument that employers will be deterred from improper intimidation of employees who provide statements to the NLRB by the possibility of an § 8(a)(4) charge misses the point of Exemption 7(A); the possibility of deterrence arising from post hoc disciplinary action is no substitute for a prophylactic rule that prevents the harm to a pending enforcement proceeding which flows from a witness' having been intimidated.19 37 The danger of witness intimidation is particularly acute with respect to current employees—whether rank and file, supervisory, or managerial—over whom the employer, by virtue of the employment relationship, may exercise intense leverage. Not only can the employer fire the employee, but job assignments can be switched, hours can be adjusted, wage and salary increases held up, and other more subtle forms of influence exerted. A union can often exercise similar authority over its members and officers. As the lower courts have recognized, due to the "peculiar character of labor litigation[,] the witnesses are especially likely to be inhibited by fear of the employer's or—in some cases—the union's capacity for reprisal and harassment." Roger J. Au & Son, Inc. v. NLRB, 538 F.2d 80, 83 (CA3 1976). Accord, NLRB v. Hardeman Garment Corp., 557 F.2d 559 (CA6 1977). While the risk of intimidation (at least from employers) may be somewhat diminished with regard to statements that are favorable to the employer, those known to have already given favorable statements are then subject to pressur to give even more favorable testimony. 38 Furthermore, both employees and nonemployees may be reluctant to give statements to NLRB investigators at all, absent assurances that unless called to testify in a hearing, their statements will be exempt from disclosure until the unfair labor practice charge has been adjudicated. Such reluctance may flow less from a witness' desire to maintain complete confidentiality—the concern of Exemption 7(D)—than from an all too familiar unwillingness to "get too involved" unless absolutely necessary. Since the vast majority of the Board's unfair labor practice proceedings are resolved short of hearing, without any need to disclose witness statements, those currently giving statements to Board investigators can have some assurance that in most instances their statements will not be made public (at least until after the investigation and any adjudication is complete).20 The possibility that a FOIA-induced change in the Board's prehearing discovery rules will have a chilling effect on the Board's sources cannot be ignored.21 39 In short, prehearing disclosure of witnesses' statements would involve the kind of harm that Congress believed would constitute an "interference" with NLRB enforcement proceedings: that of giving a party litigant earlier and greater access to the Board's case than he would otherwise have. As the lower courts have noted, even without intimidation or harassment a suspected violator with advance access to the Board's case could " 'construct defenses which would permit violations to go unremedied.' " New England Medical Center Hosp. v. NLRB, 548 F.2d 377, 382 (CA1 1976), quoting Title Guarantee Co. v. NLRB, 534 F.2d, at 491. This possibility arises simply from the fact of prehearing disclosure of any witness statements, whether the witness is favorable or adverse, employee or nonemployee. While those drafting discovery rules for the Board might determine that this "interference" is one that should be tolerated in order to promote a fairer decisionmaking process, that is not our task in construing FOIA. B 40 The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed. 1974 Source Book 38; see also NLRB v. Sears, Roebuck & Co., 421 U.S., at 152, 95 S.Ct., at 1517. Respondent concedes that it seeks these statements solely for litigation discovery purposes, and that FOIA was not intended to function as a private discovery tool, see Renegotiation Board v. Bannercraft Clothing Co., 415 U.S., at 22, 94 S.Ct., at 1039.22 Most, if not all, persons who have sought prehearing disclosure of Board witnesses' statements have been in precisely this posture parties respondent in Board proceedings.23 Since we are dealing here with the narrow question whether witnesses' statements must be released five days prior to an unfair labor pr ctice hearing, we cannot see how FOIA's purposes would be defeated by deferring disclosure until after the Government has "presented its case in court." Cf. NLRB v. Sears, Roebuck & Co., supra, at 159-160, 95 S.Ct., at 1520-1521. 41 Consideration of the underlying policy of the Act as it applies in this case thus reinforces our conclusion that Congress, having given no explicit attention to this problem in its 1974 legislation, could not have intended to overturn the NLRB's longstanding rule against prehearing disclosure of witness statements. It was Congress' understanding, and it is our conclusion, that release of such statements necessarily "would interfere" in the statutory sense with the Board's "enforcement proceedings." We therefore conclude that the Court of Appeals erred in holding that the Board was not entitled to withhold such statements under Exemption 7(A). 42 The judgment of the Court of Appeals is, accordingly, 43 Reversed. 44 Mr. Justice STEVENS, with whom The Chief Justice and Mr. Justice REHNQUIST join, concurring. 45 The "act of meddling in" a process is one of Webster's accepted definitions of the word "interference."* A statute that authorized discovery greater than that available under the rules normally applicable to an enforcement proceeding would "interfere" with the proceeding in that sense. The Court quite correctly holds that the Freedom of Information Act does not authorize any such interference in Labor Board enforcement proceedings. Its rationale applies equally to any enforcement proceeding. On that understanding, I join the opinion. 46 Mr. Justice POWELL, with whom Mr. Justice BRENNAN joins, concurring in part and dissenting in part. 47 I join the Court's opinion to the extent that it holds that Exemption 7(A) of the Freedom of Information Act (Act or FOIA), 5 U.S.C. § 552(b)(7)(A) (1976 ed.), permits the federal courts to determine that "with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally 'interfere with enforcement proceedings.' " Ante, at 236. I endorse the limitation of such "generic determinations of likely interference," ibid., to "an imminent adjudicatory proceeding" that is "necessarily of a finite duration," ante, at 229 n. 10. I also agree that the National Labor Relations Board (Board) has sustained its burden of justifying nondisclosure of statements by current employees that are unfavorable to their employer's cause in an unfair labor practice proceeding against that employer. But I cannot accept the Court's approval of the application of the Board's rule of nondisclosure to all witness statements, unless and until a witness gives direct testimony before an administrative law judge. And I disagree with the Court's apparent interpretation of Exemption 7(A) as providing no "earlier or greater access" to records than that available under the discovery rules that an agency chooses to promulgate. See concurring opinion of Mr. Justice STEVENS, ante, p. 243. There is no persuasive evidence that Congress in 1974 intended to authorize federal agencies to withhold all FOIA-requested material in pending proceedings by invoking restrictive rules of discovery promulgated under their "housekeeping" rulemaking authority.1 48 * The starting point is the language of Exemption 7(A). Congress provided for the nondisclosure of "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings . . . ." Establishing a presumption of disclosure, the Act "does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section." 5 U.S.C. § 552(c) (1976 ed.). Moreover, "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." § 552(b). 49 The language of Exemption 7(A) simply cannot be squared with the Court's conclusion that "giving a party litigant earlier and greater access to the Board's case than he would otherwise have" under agency rules is "the kind of harm that Congress believed would constitute an 'interference' with NLRB enforcement proceedings . . . ." Ante, at 241. It is instructive to compare the 1974 amendment with the 1966 version of the "investigatory files" exemption. Exemption 7 as originally enacted permitted nondisclosure of "investigatory files compiled for law enforcement purposes except to the extent available by law to a private party." 80 Stat. 251.2 Congress in 1974 abandoned the language that keyed the standard of disclosure to that available generally to private litigants.3 In its place, Congress prescribed that the withholding of investigatory records be based upon one or more of six specified types of harm. That change in language suggests that Congress may have intended a more focused inquiry into the likelihood of harm resulting from disclosure of investigatory records than was possible under a standard defining the scope of disclosure in terms of an agency's rules of discovery.4 50 The Court of Appeals in this case observed that "[i]f the mere fact that one could not have obtained the document in private discovery were enough, the Board would have made naught of the requirement that nondisclosure be permitted 'only to the extent that . . . production . . . would . . . interfere' in some way" with the proceeding. 563 F.2d 724, 730 (CA5 1977). There also is force to the Court of Appeals' view that such a standard is unworkable because the courts have not accorded uniform recognition to the Board's authority to deny rights of discovery to litigants in proceedings before it. Moreover, that court noted that a discovery standard may require an assessment of the particular needs of the FOIA plaintiff when the Act mandates release of information "to any person," 5 U.S.C. § 552(a)(3) (1976 ed.), incorporating the principle that "anyone's case is as strong (or as weak) as anyone else's." 563 F.2d, at 730; see NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n. 10, 95 S.Ct. 1504, 1512, 44 L.Ed.2d 29 (1975). 51 Nor does the legislative history provide more than ambiguous support for the Court's reading. There are statements by Senator Hart, the principal sponsor of the Exemption 7 amendment, that appear favorable. But these statements, made on the floor of the Senate, are not very clear on the point in dispute. Thus while Senator Hart noted that the original intent of the 1966 provision was to deny "an opposing litigant earlier or greater access to investigative files than he would otherwise have," 120 Cong.Rec. 17033 (1974), reprinted in 1975 Source Book 332, he also said that Exemption 7(A) "would apply whenever the Government's case in court—a concrete prospective enforcement proceeding—would be harmed by the premature release of evidence or information not in the possession of known or potential defendants." Id., at 333. If Exemption 7(A) were intended to authorize nondisclosure in every pending proceeding, it is doubtful that Senator Hart would have spoken in terms of "whenever the Government's case in court . . . would be harmed by the premature release . . . ." I find equally unilluminating statements to the effect that the 1974 amendment was not intended to work "a radical departure from existing case law under the Freedom of Information Act." Id., at 334 (remarks of Sen. Hart). 52 The one point that emerges with clarity is that Congress intended that "the courts look . . . to the reasons for the seventh exemption before allowing the withholding of documents." Ibid. But it is difficult to reconcile that principle with the underlying rationale of the Court's opinion that "the release of information in investigatory files prior to the completion of an actual, contemplated enforcement proceeding was precisely the kind of interference that Congress continued to want to protect against." Ante, at 232. Congress had before it several proposals that would have drawn the line between files in "pending or contemplated" proceedings and files in "closed" cases. These were not adopted.5 One must assume that a deliberate policy decision informed Congress' rejection of these alternatives in favor of the language presently contained in Exemption 7(A). Moreover, as the Court notes, ante, at 229 n 10, at least two of the decisions of the Court of Appeals for the District of Columbia Circuit that Congress intended to overrule "involved files in still-pending investigations." See Ditlow v. Brinegar, 161 U.S.App.D.C. 154, 494 F.2d 1073, cert. denied, 419 U.S. 974, 95 S.Ct. 238, 42 L.Ed.2d 188 (1974); Center for National Policy Review v. Weinberger, 163 U.S.App.D.C. 368, 502 F.2d 370 (1974).6 Senator Hart stated that these cases, among others, were wrongly decided because the courts failed to approach the disclosure issue "on a balancing basis, which is exactly what this amendment seeks to do." 1975 Source Book 349. 53 The Court's approach in this case also is in tension with Congress' most recent amendment to the Act. Congress in 1976 overturned our decision in FAA Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975), which held that Exemption 3, 5 U.S.C. § 552(b)(3), should not be interpreted to disturb a broad delegation of authority to an agency to withhold information from the public. Pub.L.No.94-409, § 5(b)(3), 90 Stat. 1247. Congress tightened the standard for Exemption 3 "to exempt only material required to be withheld from the public by any statute establishing particular criteria or referring to particular types of information," and rejected Robertson, which was viewed as "afford[ing] the FAA Administrator cart[e] blanche to withhold any information he pleases . . . ." H.R.Rep.No.94-880, pt. 1, p. 23 (1976) U.S.Code Cong. & Admin.News 1976, p. 2205. The Court's ruling today appears to afford an agency similar carte blanche authority to withhold witness statements in investigatory files, at least during the pendency of an enforcement proceeding. 54 The Court appropriately recognizes the danger that FOIA claims are "likely to cause substantial delays in the adjudication of unfair labor practice charges." Ante, at 237-238. But Congress had a right to insist, as I believe it did in the 1974 legislation, that nondisclosure of investigatory records be grounded in one of the six specific categories of harm set out in Exemption 7, even though litigation may ensue over disputed claims of exemption. II 55 As the Court demonstrates, the congressional requirement of a specific showing of harm does not prevent determinations of likely harm with respect to prehearing release of particular categories of documents. The statements of the Act's sponsors in urging an override of President Ford's veto of the 1974 amendments shed light on this point. The President's message to Congress explained that "confidentiality would not be maintained if many millions of pages of FBI and other investigatory law enforcement files would be subject to compulsory disclosure at the behest of any person unless the Government could prove to a court—separately for each paragraph of each document—that disclosure 'would' cause a type of harm specified in the amendment." 1975 Source Book 484. The bill's proponents discounted the President's concern. See id., at 405-406 (remarks of Rep. Moorhead); id., at 451-452 (remarks of Sen. Hart). As then Attorney General Levi observed: "This legislative history suggests that denial can be based upon a reasonable possibility, in view of the circumstances, that one of the six enumerated consequences would result from disclosure." Attorney General's Memorandum on the 1974 Amendments to the Freedom of Information Act 13 (1975), reprinted in 1975 Source Book 523. A. 56 In my view, the Board has demonstrated a "reasonable possibility" that harm will result from prehearing disclosure of statements by current employees that are damaging to their employer's case in an unfair labor practice proceeding. The Courts of Appeals have recognized with virtual unanimity that due to the "peculiar character of labor litigation[,] the witnesses are especially likely to be inhibited by fear of the employer's or in some cases—the union's capacity for reprisal and harassment." Roger J. Au & Son, Inc. v. NLRB, 538 F.2d 80, 83 (CA3 1976).7 The "delicate" relationship between employer and employee—or between union and employee-member—suggests that "[t]he labor case is peculiarly susceptible to employer [or union] retaliation, coercion, or influence to the point that it can be concluded that there is no need for an express showing of interference in each case to justify giving effect to the exemption contained in Section 7(A) in Labor Board proceedings." Climax Molybdenum Co. v. NLRB, 539 F.2d 63, 65 (CA10 1976). 57 The Board knows from experience that an employer or a union charged with an unfair labor practice often can exercise special influence—either through threats or promises of benefit—over employees or members whose welfare and opportunity for advancement depend on remaining in the good graces of the charged party. Accordingly, the Court has construed § 8(a)(4) of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U.S.C. § 158(a)(4), to protect employees who give written sworn statements to a Board field examiner even when they do not file a charge or testify at a formal hearing on the charge. NLRB v. Scrivener, 405 U.S. 117, 92 S.Ct. 798, 31 L.Ed.2d 79 (1972).8 58 Although the Board may be able to impose post hoc sanctions for interference with its witnesses, see 29 U.S.C. §§ 158(a)(4) and 162; 18 U.S.C. § 1505 (1976 ed.), these remedies cannot safeguard fully the integrity of ongoing unfair labor practice proceedings. Intimidation or promise of benefit may be subtle and not susceptible of proof. As the Board cannot proceed without a charge filed by knowledgeable individuals, see Nash v. Florida Industrial Comm'n, 389 U.S. 235, 238, 88 S.Ct. 362, 365, 19 L.Ed.2d 438 (1967) many instances of interference could go undetected. Even if interference is detected and a complaint is filed, appropriate sanctions often cannot be imposed until after the initial unfair labor practice proceeding has terminated. Moreover, as the Court notes, many employees, mindful of the Board's prehearing settlement practice, may be willing to cooperate with the Board because they know that their identity will not be revealed and they will not be called to give public testimony adverse to their employer's interest unless such a course is absolutely necessary. 59 Until the Board's view here is proved unfounded, as an empirical matter, I agree that the danger of altered testimony through intimidation or promise of benefit—provides sufficient justification for the judgment that disclosure of unfavorable statements by current employees prior to the time when they are called to give testimony before an administrative law judge, "would interfere with enforcement proceedings . . . ."9 B 60 But the Court holds that all "witness statements in pending unfair labor practice proceedings are exempt from FOIA disclosure at least until completion of the Board's hearing. . . . " Ante, at 236. I find no warrant for that sweeping conclusion in the expressed intention of the 93d Congress. Exemption 7(A) requires that the Board demonstrate a reasonable possibility that disclosure would "interfere with enforcement proceedings . . . ." In my view, absent a particularized showing of likely interference, statements of all witnesses—other than current employees in proceedings against employers (or union members in proceedings against unions)—are subject to the statutory presumption in favor of disclosure. In contrast to the situation of current employees or union members, there simply is no basis for presuming a particular likelihood of employer interference with union representatives or others not employed by the charged party, or in a proceeding against a union, of union interference with employer representatives and other nonmembers of the union or the bargaining unit. Similarly, I am unwilling to presume interference with respect to disclosure of favorable statements by current employees, and would require the Board to show a reasonable possibility of employer reprisal. See Temple-Eastex, Inc. v. NLRB, 410 F.Supp. 183, 186 (ED Tex.1976). 61 I do not read the Act to authorize agencies to adopt or adhere to nonstatutory rules10 barring all prehearing disclosure of investigatory records. The Court reasons, ante, at 241, that such disclosure—which is deemed "premature" only because it is in advance of the time of release set by the agency—will enable "suspected violators . . . to learn the Board's case in advance and frustrate the proceedings or construct defenses which would permit violations to go unremedied . . . ." Title Guarantee Co. v. NLRB, 534 F.2d 484, 491 (CA2), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976). This assumption is not only inconsistent with the congressional judgment expressed in the Federal Rules of Civil Procedure that "trial by ambush," New England Medical Center Hosp. v. NLRB, 548 F.2d 377, 387 (CA1 1976); Capital Cities Communications, Inc. v. NLRB, 409 F.Supp. 971, 977 (ND Cal.1976), well may disserve the cause of truth, but it also threatens to undermine the Act's overall presumption of disclosure, at least during the pendency of enforcement proceedings.11 62 There may be exceptional cases that would permit the Board to withhold all witness statements for the duration of an unfair labor practice proceeding. Such a situation could arise where prehearing revelation would divulge incompletely developed information which, if prematurely disclosed, may interfere with the proceedings before the Board, or where the facts of a case suggest a strong likelihood that the charged party will attempt to interfere with any and all of the Board's witnesses. The Act requires, however, that the Board convince a federal court that there is a reasonable possibility of this kind of interference.12 63 I would reverse the judgment of the Court of Appeals to the extent it requires prehearing disclosure of unfavorable statements by respondent's current employees, but affirm as to any remaining statements in dispute.13 1 After investigating the union's objections to the election, the Acting Regional Director not only issued an unfair labor practice charge but also recommended that seven challenged ballots be counted and, if they did not result in the union's receiving a majority, that a hearing be held on certain of the union's objections. The Board adopted the Acting Regional Director's recommendations and, when a count of the challenged ballots failed to give the union a majority, the hearing on its objections to the election was consolidated with the hearing on the unfair labor practice charge. 2 As a preliminary matter, the Court of Appeals rejected the Board's argument that the District Court had, in effect, granted an injunction against the Board proceeding, thereby erroneously refusing to require respondent to exhaust its administrative remedies. The court concluded that the District Court had not enjoined the Board proceeding, but had simply conditioned its right to proceed on the Board's complying with respondent's discovery request. 563 F.2d, at 727. 3 The Board argued that the statements were within the "attorney-work-product" privilege embodied in Exemption 5, which applies to "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5) (1976 ed.). The Court of Appeals concluded, however, that the witnesses' statements were neither "memorandums" nor "letters" within the meaning of Exemption 5. The Board also suggested that the statements were covered by Exemption 7(C) or (D), which apply to "investigatory records compiled for law enforcement purposes," to the extent that their production would "constitute an unwarranted invasion of personal privacy [or] disclose the identity of a confidential source . . .." The Court of Appeals rejected these claims, noting first that there is "nothing unusual in the nature of personal or family details in these affidavits" that would bring them within the scope of Exemption 7(C). 563 F.2d, at 733. With respect to Exemption 7(D), the court concluded that the Board had failed to prove that the statements sought had been given only by one receiving an assurance of confidentiality, and that it could not so prove since the only statements sought were of witnesses scheduled to testify at the trial. Id., at 733-734. 4 The second question in the Board's petition for certiorari seeks review of the holding below that Exemption 5 did not protect these witnesses' statements from disclosure. See n. 3, supra. In light of our disposition of the case in the Board's favor on the basis of our interpretation of Exemption 7, we have no occasion to address the Exemption 5 question. 5 Those decisions that have followed Title Guarantee include New England Medical Center Hospital v. NLRB, 548 F.2d 377 (CA1 1976); Roger J. Au & Son v. NLRB, 538 F.2d 80 (CA3 1976); NLRB v. Hardeman Garment Corp., 557 F.2d 559 (CA6 1977); Abrahamson Chrysler-Plymouth, Inc. v. NLRB, 561 F.2d 63 (CA7 1977); Harvey's Wagon Wheel, Inc. v. NLRB, 550 F.2d 1139 (CA9 1976); Climax Molybdenum Co. v. NLRB, 539 F.2d 63 (CA10 1976). In a case involving witnesses' statements obtained during a pending Equal Employment Opportunity Commission investigation, the Fourth Circuit has recently followed the basic approach of the Fifth Circuit in this case and rejected the Title Guarantee rationale. Charlotte-Mecklenburg Hospital Authority v. Perry, 571 F.2d 195 (1 78). 6 Section 552(b) in its entirety provides: "This section does not apply to matters that are— "(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order; "(2) related solely to the internal personnel rules and practices of an agency; "(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld; "(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; "(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; "(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; "(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel; "(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or "(9) geological and geophysical information and data, including maps, concerning wells. "Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 7 Senator Humphrey's amendment would have exempted from disclosure "statements of agency witneses until such witnesses are called to testify in an action or proceeding and request is timely made by a private party for the production of relevant parts of such statements for purposes of cross examination." 1974 Source Book 110. Colloquy on the floor made clear that the Senators thought it desirable to extend the so-called "Jencks" rule to agency proceedings, requiring the disclosure of witnesses' statements only after the witnesses testified at the agency proceedings. See id., at 111. 8 This 89-page Report resulted from several days of hearings held by the House Government Operations Committee. Its focus was primarily on the procedural aspects of FOIA, and it manifested little discontent with the substantive disclosure and exemption requirements of the Act. See Administration of the Freedom of Information Act, H.R.Rep.No.92-1419 (1972), reprinted in House Committee on Government Operations and Senate Committee on the Judiciary, Freedom of Information Act and Amendments of 1974 (Pub.L. 93-502) Source Book, 94th Cong., 1st Sess., 15 (Joint Comm. Print 1975) (identification of "major problem areas") (hereinafter cited as 1975 Source Book). 9 In response to Senator Hruska's remarks that the amendment of Exemption 7 was likely to result in lawlessness due to ineffective law enforcement activities, Senator Kennedy stated that there had "been a gross misinterpretation of the actual words of the amendment and its intention." 1975 Source Book 349. In order "for the record to be extremely clear," he continued, what the amendment sought to do was "be specific about safeguarding . . . legitimate investigations . . . bY the federal agencies." He then asked Senator Hart whether its "impact and effect [was] to override" the four decisions discussed in the text. Ibid. The Conference Report on the 1974 amendments similarly states that the Exemption 7 amendment was designed to clarify Congress' intent to disapprove of certain court decisions. Id., at 229. 10 Although much of the debate on this amendment focused on the problems of access to "closed files," two of the four D.C. Circuit cases involved files in still-pending investigations. Ditlow v. Brinegar; Center for National Policy Review of Race and Urban Issues v. Weinberger. But we do not understand the thrust of the Board's argument to depend solely on its file being "open." Instead, the Board points to the particular nature of these proceedings and the imminence of an actual adjudicatory proceeding on the charge. Since Senators Kennedy and Hart carefully explained the amendment's purpose as being to eliminate a "wooden" and overly literal approach to the language of the Exemption, we do not read their reference to these two cases to mean that consideration of the pendency of an as-yet-unresolved charge to which the material sought relates is a factor that cannot be considered. Assuming, arguendo, that the references to Ditlow and Weinberger mean that Congress disapproved of their holdings, as well as their reasoning, we do not think this disapproval undercuts our conclusion that the records sought here are protected. In Ditlow, Exemption 7 was held to protect correspondence between automobile manufacturers and the National Highway Safety Traffic Administration concerning an apparently extended investigation of possible defects. Similarly, in Weinberger, Exemption 7 protection was extended to material in investigatory files of The Department of Health, Education, and Welfare relating to desegregation of the public schools in the North. In each of these cases, no enforcement proceeding was contemplated, much less imminent. Here, by contrast, an imminent adjudicatory proceeding is involved, in which the special dangers of interference with enforcement proceedin § from prehearing disclosure are necessarily of a finite duration. 11 Both S. 1142 and H.R. 5425, as introduced in the 93d Congress, would have amended Exemption 7 to read as follows: " '(7) investigatory records compiled for any specific law enforcement purpose the disclosure of which is not in the public interest, except to the extent that— " '(A) any such investigatory records are available by law to a party other than an agency, or " '(B) any such investigatory records are— " '(i) scientific tests, reports, or data, " '(ii) inspection reports of any agency which relate to health, safety, environmental protection, or " '(iii) records which serve as a basis for any public policy statement made by any agency or officer or employee of the United States or which serve as a basis for rulemaking by any agency.' ". See 1 Hearings on S. 858 et al. before the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations and the Subcommittees on Separation of Powers and Administrative Practice and Procedure of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 507 (1973) (hereinafter Senate Hearings); Hearings on H.R. 5425 et al. before a Subcommittee of the House Committee on Government Operations, 93d Cong , 1st Sess., 7 (1973) (hereinafter House Hearings). In addition, H.R. 4960 would have amended the Exemption with the following language: "investigatory records complied [sic ] for law enforcement purposes, but only to the extent that production of such records would constitute (A) a genuine risk to enforcement proceedings. (B) a clearly unwarranted invasion of personal privacy, or (c) [sic ] a threat to life." House Hearings 12. The hearings on these proposals reflected Senator Hart's concern that the courts were applying the language of the Exemption too literally and without regard for its underlying purposes. One witness from the American Civil Liberties Union, for example, emphasized that "[w]hat is being gotten at here . . . is the old investigatory files, the dead files, the files that are yellowing in the Justice Department and the FBI . . . ." 2 Hearings on S. 1142 et al. before the Subcommittees on Administrative Practice and Procedure and Separation of Powers of the Senate Judiciary Committee and the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 93d Cong., 1st Sess., 40 (1973) (hereinafter cited as 2 Senate Hearings) (statement of John Shattuck, ACLU staff counsel). See also House Hearings 28 (remarks of Rep. Erlenborn); id., at 78 (remarks of Rep. Horton). Senator Kennedy at one point proposed an amendment that would protect only actively pending cases, 2 Senate Hearings 2; the proposal was similar to a Justice Department proposal that would exempt all files in pending cases, and closed files but to a more limited extent. Id., at 227. 12 The ABA proposal exempted: "Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) disclose the identity of an informer, or (D) disclose investigative techniques and procedures." Id., at 158. The Hart amendment, proposed on the floor, incorporated most of this language and all of the language found in Exemption 7(A): "Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication or constitute a clearly unwarranted invasion of personal privacy, (C) disclose the identity of an informer, or (D) disclose investigative techniques and procedures." After passing the Senate in this form, the amendment was modified to its present form, see supra, at 223, in Conference Committee. 13 Congress had prepared for its use a detailed case summary of the first 200 decisions under FOIA, see 1974 Source Book 116-183, a summary that included such cases as Barceloneta Shoe Corp. v. Compton, 271 F.Supp. 591 (PR 1967), and NLRB v. Clement Bros. Co., 407 F.2d 1027 (CA5 1969), discussed supra, at 226. Wellman Industries, Inc. v. NLRB, 490 F.2d 427 (CA4), cert. denied, 419 U.S. 834, 95 S.Ct. 61, 42 L.Ed.2d 61 (1974), followed th holdings of these two earlier decisions, but was apparently decided after the case summary was prepared and is not cited therein. 14 Senator Hart's comments are in accord with Senator Kennedy's explanation of why the Committees, after considering similar proposals to amend Exemption 7, see n. 11, supra, failed to report out an amendment. Senator Kennedy stated that the Committees had concluded that the courts were, by and large, giving that Exemption an appropriately narrow construction, and that any amendment of the Exemption would serve only to create confusion. See 1975 Source Book 335; S.Rep.No.93-854 (1974), reprinted in 1975 Source Book 159. Kennedy then stated that in light of the recent series of cases in the last 9-12 months, the "initial appraisal" of the case law had "turned out to be short lived". Id., at 335. The Senator may have been mistaken as to the year of the first decision extending Exemption 7 protection automatically even in closed-file cases. In Frankel v. SEC, 460 F.2d 813 (CA2 1972), over the strong dissent of Judge Oakes (the author of the later Title Guarantee opinion), the court held that material in an investigatory file was exempt from disclosure even though the investigation was complete and no enforcement proceedings were pending. Given the long history of cases construing NLRB witness statements as nondisclosable, see supra, at 226, we may assume that these decisions were not the object of the Senator's amendment. 15 Indeed, Congress failed to enact proposals that might have had this effect. See n. 11, supra. 16 Section 6 of the NLRA provides that the Board may "make such rules and regulations as may be necessary to carry out the provisions of this Act." Most Circuits have held that prehearing discovery questions are committed to the Board's discretion. See, e. g., NLRB v. Vapor Blast Mfg. Co., 287 F.2d 402 (CA7 1961); Electromec Design & Development Co. v. NLRB, 409 F.2d 631, 635 (CA9 1969); NLRB v. Interboro Contractors, Inc., 432 F.2d 854, 858 (CA2 1970), cert. denied, 402 U.S. 915, 91 S.Ct. 1375, 28 L.Ed.2d 661 (1971); D'Youville Manor, Lowell, Mass., Inc. v. NLRB, 526 F.2d 3, 7 (CA1 1975); NLRB v. Valley Mold Co., 530 F.2d 693, 695 (CA6 1976). Contrary to these authorities, the Fifth Circuit has held that "when good cause is shown [the NLRB] should permit discovery" in unfair labor practice proceedings. NLRB v. Rex Disposables, 494 F.2d 588, 592 (1974), citing NLRB v. Safway Steel Scaffolds Co., 383 F.2d 273 (CA5 1967), cert. denied, 390 U.S. 955, 88 S.Ct. 1052, 19 L.Ed.2d 1150 (1968) (relying on § 10(b) of the NLRA, 29 U.S.C. § 160(b)). This view of discovery in Board proceedings may have influenced the decision of the court below, since it noted that, under the Fifth Circuit's approach to NLRB discovery, granting the FOIA request here might not have given the employer any more information about the Board's case than it could otherwise have obtained. Since the court below did not rest on this ground, but instead indicated that the prospect of premature revelation of the Board's case was not, of itself, an "interference" with enforcement proceedings, see supra, at 218, we intimate no view as to the validity of the Fifth Circuit's approach to Board discovery. 17 If the Court of Appeals' ruling below were not reversed, the Board anticipated that prehearing requests for witnesses statements under FOIA would be made by employer-respondents in virtually all unfair labor practice proceedings. See Pet. for Cert. 9. 18 We believe that delay of adjudicatory proceedings is a relevant factor, because Exemption 7 requires us to look at the interference that would flow from the "production," and not merely the disclosure, of records. Since Congress had before it proposals that would have exempted only those investigatory records whose "disclosure" would create specified harms, see 1975 Source Book 338 (proposal of Assn. of Bar of City of New York), it is not unreasonable to attribute some significance to the use of the word "production" as defining the scope of activities from which the "interferences" justifying nondisclosure might flow. See also 5 U.S.C. § 552(b)(6) (1976 ed.) (exempting personnel and medical files the "disclosure of which" would invade privacy) (emphasis added). 19 Respondent argues that the relatively small percentage of unfair labor practice charges filed under § 8(a)(4) demonstrates that the Board's justifications for its nondisclosure rules are illusory. Brief for Respondent 38. But the small percentage may reflect the effectiveness of the intimidation, rather than any lack thereof. It may also reflect the success of the Board's current policy. 20 According to the Board, 94% of all unfair labor practice charges filed are resolved short of hearing; in the remaining 6% that go to hearing, many potential witnesses are not actually called to testify, since their testimony is cumulative. Brief for Petitioner 17-18, n. 4. 21 Respondent argues that the Court of Appeals was correct in concluding that this danger is nonexistent with respect to a witness scheduled to testify, since the Board under its own discovery rules will turn over those statements once the witness has actually testified. See 29 CFR § 102.118(b)(1) (1977). This argument falters, first, on the fact that only those portions of the witness' statements relating to his direct examination or the issues raised in the pleadings are disclosed under the Board's discovery rules. In addition, to uphold respondent's FOIA request would doubtless require the Board in many cases to turn over statements of persons whom it did not actually call at the adjudicatory hearings. See n. 20, supra. 22 Tr. of Oral Arg. 31, 34. 23 This is not to suggest that respondent's rights are in any way diminished by its being a private litigant, but neither are they enhanced by respondent's particular, litigation-generated need for these materials. See EPA v. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1973). * One of the definitions of "interference" is "the act of meddling in or hampering an activity or process." Webster's Third New International Dictionary 1178 (1961). 1 The FOIA was enacted in 1966 as a remedy for agency "housekeeping" rules that had restricted unduly public information about the ope ations of Government. See H.R.Rep.No.1497, 89th Cong., 2d Sess., 3-6 (1966); S.Rep.No.813, 89th Cong., 1st Sess., 3, 5 (1965) U.S.Code Cong. & Admin.News 1966, p. 2418. Congress intended to establish legislative standards for nondisclosure of official information and to empower the federal courts to review claims of agency noncompliance with those standards. 2 The exception clause first appeared in a post-passage amendment on the floor of the Senate to accommodate Senator Humphrey's desire that the investigatory files exemption shield from disclosure prehearing statements of NLRB witnesses. 110 Cong.Rec. 17666-17668 (1964), reprinted in Subcommittee on Administrative Practice and Procedure, Senate Judiciary Committee, Freedom of Information Act Source Book, S.Doc. No. 93-82, pp. 109, 111 (1974). 3 Congress did not disturb similar language contained in Exemption 5, 5 U.S.C. § 552(b)(5) (1976 ed.). See EPA v. Mink, 410 U.S. 73, 85-86, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1973). 4 Although the Committee Reports and the debates appear to be silent on the point, the deletion of the exception clause has been viewed as evidence of an intent to broaden the scope of disclosure under Exemption 7. See Fuselier & Moeller, NLRB Investigatory Records: Disclosure Under the Freedom of Information Act, 10 U.Rich.L.Rev. 541, 546 (1976). Others have attached little significance to this change in language. See Attorney General's Memorandum on the 1974 Amendments to the Freedom of Information Act 5 n. 3 (1975), reprinted in House Committee on Government Operations and Senate Committee on the Judiciary, Freedom of Information Act and Amendments of 1974 (Pub.L. 93-502) Source Book, 94th Cong., 1st Sess., 515 (Joint Comm. Print 1975) (hereinafter cited as 1975 Source Book); Ellsworth, Amended Exemption 7 of the Freedom of Information Act, 25 Am.U.L.Rev. 37, 45-46, n. 39 (1975). In an early decision, the clause had been construed "to limit persons charged with violations of federal regulatory statutes to the discovery available to persons charged with viol tions of federal criminal law." Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 26, 424 F.2d 935, 939, cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970). See Note, The Freedom of Information Act: A Seven-Year Assessment, 74 Column.L.Rev. 895, 948, and n. 291 (1974). The proviso later was relied on by the same court to deny disclosure to a FOIA litigant who would not have been a "party" engaged in litigation with an agency. See Weisberg v. United States Dept. of Justice, 160 U.S.App.D.C. 71, 79 n. 15, 489 F.2d 1195, 1203 n. 15 (1973) (en banc), cert. denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772 (1974). 5 See 2 Hearings on S. 1142 et al. before the Subcommittees on Administrative Practice and Procedure and Separation of Powers of the Senate Judiciary Committee and the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 93d Cong., 1st Sess., 2 (1973) (Sen. Kennedy); id., at 227 (Dept. of Justice), discussed in 1975 Source Book 339; id., at 338 (Committee on Federal Legislation of the Assn. of Bar of City of New York). 6 In Center for National Policy Review, for example, the court held that Exemption 7 permitted the Secretary of Health, Education, and Welfare to resist disclosure of the material of 22 "open and active" files involving agency review of public school discrimination practices in northern localities. 7 The Court of Appeals in this case also recognized that "there may be some risk of interference with Board proceedings in the form of witness intimidation from harassment of an employee-witness during the five days prior to the hearing, done in an effort to silence him or dilute the nature of his testimony." 563 F.2d 724, 732 (CA5 1977). It determined, however, that the Board had failed to introduce any evidence tending to show that such intimidation was likely, and declined to accept the Board's assertion that "in every case the potential for intimidation is so great as to require nondisclosure of all statements and affidavits." Id., at 732-733 (emphasis supplied). 8 The Court's substantive labor law rulings have "take[n] into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear." NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969); see Textile Workers v. Darlington Co., 380 U.S. 263, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965); NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964). Similar considerations apply to statements made or inducements offered by labor unions. See, e. g., NLRB v. Savair Mfg. Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973). 9 Similarly, the Board may protect against prehearing disclosure statements by union members and employees unfavorable to the union's cause in an unfair labor practice proceeding. 10 It may be that criminal law enforcement agencies will be able to resist pretrial disclosure of witness statements on the theory that the Jencks Act, 18 U.S.C. § 3500(a) (1976 ed.), falls within the terms of Exemption 3 of the Act; see supra, at 248-249. 11 I do not construe the Court's ruling today to authorize agencies to withhold disclosure of materials generated in closed or otherwise inactive proceedings, absent a particularized showing of harm, even though the Board itself would like this authority. Brief for Petitioner 33 n. 17. The Board has advanced this view in the Courts of Appeals with some success. Compare New England Medical Center Hosp. v. NLRB, 548 F.2d, at 385-386 (records generated in a related, inactive investigation held protected against disclosure), with Poss v. NLRB, 565 F.2d 654, 657 (CA10 1977) (statements taken in an investigation that ended in a decision not to issue a complaint held not protected). 12 In light of my view of the limits of Exemption 7(A), I reach the Board's alternative argument that the witness affidavits in dispute are protected against disclosure by Exemption 5, 5 U.S.C. § 552(b)(5) (1976 ed.). That section provides that the Act does not apply to "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than any agency in litigation with the agency. . . ." I agree generally with the analysis of the Court of Appeals that the purpose of this Exemption is to protect agency litigation strategy and decisionmaking processes, and not to incorporate fully the "work product" privilege recognized in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), and Fed.Rule Civ.Proc. 26(b)(3). Our decision in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154-155, 159-160, 95 S.Ct. 1504, 1518-1521, 44 L.Ed.2d 29 (1975), provides support for this view. In this case, by contrast, the Board does not suggest that the witness affidavits in question are anything other than verbatim transcripts of statements made by witnesses to Board personnel. 13 There is no need for a remand in this case, cf. Harvey's Wagon Wheel, Inc. v. NLRB, 550 F.2d 1139, 1143 (CA9 1976), for the Board conceded in the District Court that "[t]here's nothing unique in Board proceedings in these statements . . . ." App. 91.

45

437 U.S. 153 98 S.Ct. 2279 57 L.Ed.2d 117 TENNESSEE VALLEY AUTHORITY, Petitioner,v.Hiram G. HILL, Jr., et al. No. 76-1701. Argued April 18, 1978. Decided June 15, 1978. Syllabus The Endangered Species Act of 1973 (Act) authorizes the Secretary of the Interior (Secretary) in § 4 to declare a species of life "endangered." Section 7 specifies that all "federal departments and agencies shall, . . . with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of [the] Act by carrying out programs for the conservation of endangered species . . . and by taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary . . . to be critical." Shortly after the Act's passage the Secretary was petitioned to list a small fish popularly known as the snail darter as an endangered species under the Act. Thereafter the Secretary made the designation. Having determined that the snail darter apparently lives only in that portion of the Little Tennessee River that would be completely inundated by t e impoundment of the reservoir created as a consequence of the completion of the Tellico Dam, he declared that area as the snail darter's "critical habitat." Notwithstanding the near completion of the multimillion-dollar dam, the Secretary issued a regulation, in which it was declared that, pursuant to § 7, "all Federal agencies must take such action as is necessary to ensure that actions authorized, funded, or carried out by them do not result in the destruction or modification of this critical habitat area." Respondents brought this suit to enjoin completion of the dam and impoundment of the reservoir, claiming that those actions would violate the Act by causing the snail darter's extinction. The District Court after trial denied relief and dismissed the complaint. Though finding that the impoundment of the reservoir would probably jeopardize the snail darter's continued existence, the court noted that Congress, though fully aware of the snail darter problem, had continued Tellico's appropriations, and concluded that "[a]t some point in time a federal project becomes so near completion and so incapable of modification that a court of equity should not apply a statute enacted long after inception of the project produce an unreasonable result. . . ." The Court of Appeals reversed and ordered the District Court permanently to enjoin completion of the project "until Congress, by appropriate legislation, exempts Tellico from compliance with the Act or the snail darter has been deleted from the list of endangered species or its critical habitat materially redefined." The court held that the record revealed a prima facie violation of § 7 in that the Tennessee Valley Authority had failed to take necessary action to avoid jeopardizing the snail darter's critical habitat by its "actions." The court thus rejected the contention that the word "actions" as used in § 7 was not intended by Congress to encompass the terminal phases of ongoing projects. At various times before, during, and after the foregoing judicial proceedings, TVA represented to congressional Appropriations Committees that the Act did not prohibit completion of the Tellico Project and described its efforts to transplant the snail darter. The Committees consistently recommended appropriations for the dam, sometimes stating their views that the Act did not prohibit completion of the dam at its advanced stage, and Congress each time approved TVA's general budget, which contained funds for the dam's continued construction. Held: 1. The Endangered Species Act prohibits impoundment of the Little Tennessee River by the Tellico Dam. Pp. 172-193. (a) The language of § 7 is plain and makes no exception such as that urged by petitioner whereby the Act would not apply to a project like Tellico that was well under way when Congress passed the Act. Pp. 172-174. (b) It is clear from the Act's legislative history that Congress intended to halt and reverse the trend toward species extinction—whatever the cost. The pointed omission of the type of qualified language previously included in endangered species legislation reveals a conscious congressional design to give endangered species priority over the "primary missions" of federal agencies. Congress, moreover, foresaw that § 7 would on occasion require agencies to alter ongoing projects in order to fulfill the Act's goals. Pp. 174-187. (c) None of the limited "hardship exemptions" provided in the Act would even remotely apply to the Tellico Project. P. 188. (d) Though statements in Appropriations Committee Reports reflected the view of the Committees either that the Act did not apply to Tellico or that the dam should be completed regardless of the Act's provisions, nothing in the TVA appropriations measures passed by Congress stated that the Tellico Project was to be completed regardless of the Act's requirements. To find a repeal under these circumstances, as petitioner has urged, would violate the " 'cardinal rule . 27 . that repeals by implication are not favored.' " Morton v. Mancari, 417 U.S. 535, 549, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290. The doctrine disfavoring repeals by implication applies with full vigor when the subsequent legislation is an appropriations measure. When voting on appropriations measures, legislators are entitled to assume that the funds will be devoted to purposes that are lawful and not for any purpose forbidden. A contrary policy would violate the express rules of both Houses of Congress, which provide that appropriations measures may not change existing substantive law. An appropriations committess' expression does not operate to repeal or modify substantive legislation. Pp. 189-193. 2. The Court of Appeals did not err in ordering that completion of the Tellico Dam which would have violated the Act be enjoined. Congress has spoken in the plainest words, making it clear that endangered species are to be accorded the highest priorities. Since that legislative power has been exercised, it is up to the Executive Branch to administer the law and for the Judiciary to enforce it when, as here, enforcement has been sought. Pp. 193-194. 549 F.2d 1064, affirmed. Atty. Gen. Griffin B. Bell, Washington, D. C., for petitioner. Zygmunt J. B. Plater, Knoxville, Tenn., for respondents. Mr. Chief Justice BURGER delivered the opinion of the Court. 1 The questions presented in this case are (a) whether the Endangered Species Act of 1973 requires a court to enjoin the operation of a virtually completed federal dam—which had been authorized prior to 1973—when, pursuant to authority vested in him by Congress, the Secretary of the Interior has determined that operation of the dam would eradicate an endangered species; and (b) whether continued congressional appropriations for the dam after 1973 constituted an implied repeal of the Endangered Species Act, at least as to the particular dam. 2 * The Little Tennessee River originates in the mountains of northern Georgia and flows through the national forest lands of North Carolina into Tennessee, where it converges with the Big Tennessee River near Knoxville. The lower 33 miles of the Little Tennessee takes the river's clear, free-flowing waters through an area of great natural beauty. Among other environmental amenities, this stretch of river is said to contain abundant trout. Considerable historical importance attaches to the areas immediately adjacent to this portion of the Little Tennessee's banks. To the south of the river's edge lies Fort Loudon, established in 1756 as England's southwestern outpost in the French and Indian War. Nearby are also the ancient sites of several native American villages, the archeological stores of which are to a large extent unexplored.1 These include the Cherokee towns of Echota and Tennase, the former being the sacred capital of the Cherokee Nation as early as the 16th century and the latter providing the linguistic basis from which the State of Tennessee derives its name.2 3 In this area of the Little Tennessee River the Tennessee Valley Authority, a wholly owned public corporation o the United States, began constructing the Tellico Dam and Reservoir Project in 1967, shortly after Congress appropriated initial funds for its development.3 Tellico is a multipurpose regional development project designed principally to stimulate shoreline development, generate sufficient electric current to heat 20,000 homes,4 and provide flatwater recreation and flood control, as well as improve economic conditions in "an area characterized by underutilization of human resources and outmigration of young people." Hearings on Public Works for Power and Energy Research Appropriation Bill, 1977, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, p. 261 (1976). Of particular relevance to this case is one aspect of the project, a dam which TVA determined to place on the Little Tennessee, a short distance from where the river's waters meet with the Big Tennessee. When fully operational, the dam would impound water covering some 16,500 acres—much of which represents valuable and productive farmland—thereby converting the river's shallow, fast-flowing waters into a deep reservoir over 30 miles in length. 4 The Tellico Dam has never opened, however, despite the fact that construction has been virtually completed and the dam is essentially ready for operation. Although Congress has appropriated monies for Tellico every year since 1967, progress was delayed, and ultimately stopped, by a tangle of lawsuits and administrative proceedings. After unsuccessfully urging TVA to consider alternatives to damming the Little Tennessee, local citizens and national conservation groups brought suit in the District Court, claiming that the project did not conform to the requirements of the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq. After finding TVA to be in violation of NEPA, the District Court enjoined the dam's completion pending the filing of an appropriate environmental impact statement. Environmental Defense Fund v. TVA, 339 F.Supp. 806 (ED Tenn.), aff'd, 468 F.2d 1164 (CA6 1972). The injunction remained in effect until late 1973, when the District Court concluded that TVA's final environmental impact statement for Tellico was in compliance with the law. Environmental Defense Fund v. TVA, 371 F.Supp. 1004 (ED Tenn.1973), aff'd, 492 F.2d 466 (CA6 1974).5 5 A few months prior to the District Court's decision dissolving the NEPA injunction, a discovery was made in the waters of the Little Tennessee which would profoundly affect the Tellico Project. Exploring the area around Coytee Springs, which is about seven miles from the mouth of the river, a University of Tennessee ichthyologist, Dr. David A. Etnier, found a previously unknown species of perch, the snail darter, or Percina (Imostoma) tanasi.6 This three-inch, tannish-colored fish, whose numbers are estimated to be in the range of 10,000 to 15,000, would soon engage the attention of environmentalists, the TVA, the Department of the Interior, the Congress of the United States, and ultimately the federal courts, as a new and additional basis to halt construction of the dam. 6 Until recently the finding of a new species of animal life would hardly generate a cause celebre. This is particularly so in the case of darters, of which there are approximately 130 known species, 8 to 10 of these having been identified only in the last five years.7 The moving force behind the snail darter's sudden fame came some four months after its discovery, when the Congress passed the Endangered Species Act of 1973 (Act), 87 Stat. 884, 16 U.S.C. § 1531 et seq. (1976 ed.). This legislation, among other things, authorizes the Secretary of the Interior to declare species of animal life "endangered"8 and to identify the "critical habitat"9 of these creatures. When a species or its habitat is so listed, the following portion of the Act—relevant here—becomes effective: 7 "The Secretary [of the Interior] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this chapter. All other Federal departments and agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 1533 of this title and by taking such action necessary to insure t at actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with the affected States, to be critical." 16 U.S.C. § 1536 (1976 ed.) (emphasis added). 8 In January 1975, the respondents in this case10 and others petitioned the Secretary of the Interior11 to list the snail darter as an endangered species. After receiving comments form various interested parties, including TVA and the State of Tennessee, the Secretary formally listed the snail darter as an endangered species on October 8, 1975. 40 Fed.Reg. 47505-47506; see 50 C.F.R. § 17.11(i) (1976). In so acting, it was noted that "the snail darter is a living entity which is genetically distinct and reproductively isolated from other fishes." 40 Fed.Reg. 47505. More important for the purposes of this case, the Secretary determined that the snail darter apparently lives only in that portion of the Little Tennessee River which would be completely inundated by the reservoir created as a consequence of the Tellico Dam's completion. Id., at 47506.12 The Secretary went on to explain the significance of the dam to the habitat of the snail darter: 9 "[T]he snail darter occurs only in the swifter portions of shoals over clean gravel substrate in cool, low-turbidity water. Food of the snail darter is almost exclusively snails which require a clean gravel substrate for their survival. The proposed impoundment of water behind the proposed Tellico Dam would result in total destruction of the snail darter's habitat." Ibid. (emphasis added). 10 Subsequent to this determination, the Secretary declared the area of the Little Tennessee which would be affected by the Tellico Dam to be the "critical habitat" of the snail darter. 41 Fed.Reg. 13926-13928 (1976) (to be certified as 50 CFR § 17.81). Using these determinations as a predicate, and notwithstanding the near completion of the dam, the Secretary declared that pursuant to § 7 of the Act, "all Federal agencies must take such action as is necessary to insure that actions authorized, funded, or carried out by them do not result in the destruction or modification of this critical habitat area." 41 Fed.Reg. 13928 (1976) (to be codified as 50 CFR § 17.81(b)). This notice, of course, was pointedly directed at TVA and clearly aimed at halt ng completion or operation of the dam. 11 During the pendency of these administrative actions, other developments of relevance to the snail darter issue were transpiring. Communication was occurring between the Department of the Interior's Fish and Wildlife Service and TVA with a view toward settling the issue informally. These negotiations were to no avail, however, since TVA consistently took the position that the only available alternative was to attempt relocating the snail darter population to another suitable location. To this end, TVA conducted a search of alternative sites which might sustain the fish, culminating in the experimental transplantation of a number of snail darters to the nearby Hiwassee River. However, the Secretary of the Interior was not satisfied with the results of these efforts, finding that TVA had presented "little evidence that they have carefully studied the Hiwassee to determine whether or not" there were "biological and other factors in this river that [would] negate a successful transplant."13 40 Fed.Reg. 47506 (1975). 12 Meanwhile, Congress had also become involved in the fate of the snail darter. Appearing before a Subcommittee of the House Committee on Appropriations in April 1975—some seven months before the snail darter was listed as endangered—TVA representatives described the discovery of the fish and the relevance of the Endangered Species Act to the Tellico Project. Hearings on Public Works for Water and Power Development and Energy Research Appropriation Bill, 1976, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 1st Sess., pt. 7, pp. 466-467 (1975); Hearings on H.R. 8122, Public Works for Water and Power Development and Energy Research Appropriations for Fiscal Year 1976, before a Subcommittee of the Senate Committee on Appropriations, 94th Cong., 1st Sess., pt. 4, pp. 3775-3777 (1975). At that time TVA presented a position which it would advance in successive forums thereafter, namely, that the Act did not prohibit the completion of a project authorized, funded, and substantially constructed before the Act was passed. TVA also described its efforts to transplant the snail darter, but contended that the dam should be finished regardless of the experiment's success. Thereafter, the House Committee on Appropriations, in its June 20, 1975, Report, stated the following in the course of recommending that an additional $29 million be appropriated for Tellico: 13 "The Committee directs that the project, for which an environmental impact statement has been completed and provided the Committee, should be completed as promptly as possible . . . ." H.R.Rep.No.94-319, p. 76 (1975). (Emphasis added.) 14 Congress then approved the TVA general budget, which contained funds for continued construction of the Tellico Project.14 In December 1975, one month after the snail darter was declared an endangered species, the President signed the bill into law. Public Works for Water and Power Development and Energy Research Appropriation Act, 1976, 89 Stat. 1035, 1047. 15 In February 1976, pursuant to § 11(g) of the Endangered Species Act, 87 Stat. 900, 16 U.S.C. § 1540(g) (1976 ed.),15 respondents filed the case now under review, seeking to enjoin completion of the dam and impoundment of the reservoir on the ground that those actions would violate the Act by directly causing the extinction of the species Percina (Imostoma) tanasi. The District Court denied respondents' request for a preliminary injunction and set the matter for trial. Shortly thereafter the House and Senate held appropriations hearings which would include discussions of the Tellico budget. 16 At these hearings, TVA Chairman Wagner reiterated the agency's position that the Act did not apply to a project which was over 50% finished by the time the Act became effective and some 70% to 80% complete when the snail darter was officially listed as endangered. It also notified the Committees of the recently filed lawsuit's status and reported that TVA's efforts to transplant the snail darter had "been very encouraging." Hearings on Public Works for Water and Power Development and Energy Research & Appropriation Bill, 1977, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, pp. 261-262 (1976); Hearings on Public Works for Water and Power Development and Energy Research Appropriations for Fiscal Year 1977, before a Subcommittee of the Senate Committee on Appropriations, 94th Cong., 2d Sess., pt. 4, pp. 3096-3099 (1976). 17 Trial was held in the District Court on April 29 and 30, 1976, and on May 25, 1976, the court entered its memorandum opinion and order denying respondents their requested relief and dismissing the complaint. The District Court found that closure of the dam and the consequent impoundment of the reservoir would "result in the adverse modification, if not complete destruction, of the snail darter's critical habitat,"16 making it "highly probable" that "the continued existence of the snail darter" would be "jeopardize[d]." 419 F.Supp. 753, 757 (ED Tenn.). Despite these findings, the District Court declined to embrace the plaintiffs' position on the merits: that once a federal project was shown to jeopardize an endangered species, a court of equity is compelled to issue an injunction restraining violation of the Endangered Species Act. 18 In reaching this result, the District Court stressed that t e entire project was then about 80% complete and, based on available evidence, "there [were] no alternatives to impoundment of the reservoir, short of scrapping the entire project." Id., at 758. The District Court also found that if the Tellico Project was permanently enjoined, "[s]ome $53 million would be lost in nonrecoverable obligations," id., at 759, meaning that a large portion of the $78 million already expended would be wasted. The court also noted that the Endangered Species Act of 1973 was passed some seven years after construction on the dam commenced and that Congress had continued appropriations for Tellico, with full awareness of the snail darter problem. Assessing these various factors, the District Court concluded: 19 "At some point in time a federal project becomes so near completion and so incapable of modification that a court of equity should not apply a statute enacted long after inception of the project to produce an unreasonable result. . . . Where there has been an irreversible and irretrievable commitment of resources by Congress to a project over a span of almost a decade, the Court should proceed with a great deal of circumspection." Id., at 760. 20 To accept the plaintiffs' position, the District Court argued, would inexorably lead to what it characterized as the absurd result of requiring "a court to halt impoundment of water behind a fully completed dam if an endangered species were discovered in the river on the day before such impoundment was scheduled to take place. We cannot conceive that Congress intended such a result." Id., at 763. 21 Less than a month after the District Court decision, the Senate and House Appropriations Committees recommended the full budget request of $9 million for continued work on Tellico. See S.Rep.No.94-960, p. 96 (1976); H.R.Rep.No.94-1223, p. 83 (1976). In its Report accompanying the appropriations bill, the Senate Committee stated: 22 "During subcommittee hearings, TVA was questioned about the relationship between the Tellico project's completion and the November 1975 listing of the snail darter (a small 3-inch fish which was discovered in 1973) as an endangered species under the Endangered Species Act. TVA informed the Committee that it was continuing its efforts to preserve the darter, while working towards the scheduled 1977 completion date. TVA repeated its view that the Endangered Species Act did not prevent the completion of the Tellico project, which has been under construction for nearly a decade. The subcommittee brought this matter, as well as the recent U. S. District Court's decision upholding TVA's decision to complete the project, to the attention of the full Committee. The Committee does not view the Endangered Species Act as prohibiting the completion of the Tellico project at its advanced stage and directs that this project be completed as promptly as possible in the public interest." S.Rep.No.94-960, supra, at 96. (Emphasis added.) 23 On June 29, 1976, both Houses of Congress passed TVA's general budget, which included funds for Tellico; the President signed the bill on July 12, 1976. Public Works for Water and Power Development and Energy Research Appropriation Act, 1977, 90 Stat. 889, 899. 24 Thereafter, in the Court of Appeals, respondents argued that the District Court had abused its discretion by not issuing an injunction in the face of "a blatant statutory violation." Hill v. TVA, 549 F.2d 1064, 1069 (CA6 1977). The Court of Appeals agreed, and on January 31, 1977, it reversed, remanding "with instructions that a permanent injunction issue halting all activities incident to the Tellico Project which may destroy or modify the critical habitat of the snail darter." Id., at 1075. The Court of Appeals directed that the injunction "remain in effect until Congress, by appropriate legislation, exempts Tellico from compliance with the Act or the snail darter has been deleted from the list of endan ered species or its critical habitat materially redefined." Ibid. 25 The Court of Appeals accepted the District Court's finding that closure of the dam would result in the known population of snail darters being "significantly reduced if not completely extirpated." Id., at 1069. TVA, in fact, had conceded as much in the Court of Appeals, but argued that "closure of the Tellico Dam, as the last stage of a ten-year project, falls outside the legitimate purview of the Act if it is rationally construed." Id., at 1070. Disagreeing, the Court of Appeals held that the record revealed a prima facie violation of § 7 of the Act, namely that TVA had failed to take "such action . . . necessary to insure" that its "actions" did not jeopardize the snail darter or its critical habitat. 26 The reviewing court thus rejected TVA's contention that the word "actions" in § 7 of the Act was not intended by Congress to encompass the terminal phases of ongoing projects. Not only could the court find no "positive reinforcement" for TVA's argument in the Act's legislative history, but also such an interpretation was seen as being "inimical to . . . its objectives." 549 F.2d, at 1070. By was of illustration, that court pointed out that "the detrimental impact of a project upon an endangered species may not always be clearly perceived before construction is well underway." Id., at 1071. Given such a likelihood, the Court of Appeals was of the opinion that TVA's position would require the District Court, sitting as a chancellor, to balance the worth of an endangered species against the value of an ongoing public works measure, a result which the appellate court was not willing to accept. Emphasizing the limits on judicial power in this setting, the court stated: 27 "Current project status cannot be translated into a workable standard of judicial review. Whether a dam is 50% or 90% completed is irrelevant in calculating the social and scientific costs attributable to the disappearance of a unique form of life. Courts are ill-equipped to calculate how many dollars must be invested before the value of a dam exceeds that of the endangered species. Our responsibility under § 1540(g)(1)(A) is merely to preserve the status quo where endangered species are threatened, thereby guaranteeing the legislative or executive branches sufficient opportunity to grapple with the alternatives." Ibid. 28 As far as the Court of Appeals was concerned, it made no difference that Congress had repeatedly approved appropriations for Tellico, referring to such legislative approval as an "advisory opinio[n]" concerning the proper application of an existing statute. In that court's view, the only relevant legislation was the Act itself, "[t]he meaning and spirit" of which was "clear on its face." Id., at 1072. 29 Turning to the question of an appropriate remedy, the Court of Appeals ruled that the District Court had erred by not issuing an injunction. While recognizing the irretrievable loss of millions of dollars of public funds which would accompany injunctive relief, the court nonetheless decided that the Act explicitly commanded precisely that result: 30 "It is conceivable that the welfare of an endangered species may weigh more heavily upon the public conscience, as expressed by the final will of Congress, than the writeoff of those millions of dollars already expended for Tellico in excess of its present salvageable value." Id., at 1074. 31 Following the issuance of the permanent injunction, members of TVA's Board of Directors appeared before Subcommittees of the House and Senate Appropriations Committees to testify in support of continued appropriations for Tellico. The Subcommittees were apprised of all aspects of Tellico's status, including the Court of Appeals' decision. TVA reported that the dam stood "ready for the gates to be closed and the reservoir filled," Hearings on Public Works for Water and Power D velopment and Energy Research Appropriation Bill, 1978, before a Subcommittee of the House Committee on Appropriations, 95th Cong., 1st Sess., pt. 4, p. 234 (1977), and requested funds for completion of certain ancillary parts of the project, such as public use areas, roads, and bridges. As to the snail darter itself, TVA commented optimistically on its transplantation efforts, expressing the opinion that the relocated fish were "doing well and ha[d] reproduced." Id., at 235, 261-262. 32 Both Appropriations Committees subsequently recommended the full amount requested for completion of the Tellico Project. In its June 2, 1977, Report, the House Appropriations Committee stated: 33 "It is the Committee's view that the Endangered Species Act was not intended to halt projects such as these in their advanced stage of completion, and [the Committee] strongly recommends that these projects not be stopped because of misuse of the Act." H.R.Rep.No.95-379, p. 104. (Emphasis added.) 34 As a solution to the problem, the House Committee advised that TVA should cooperate with the Department of the Interior "to relocate the endangered species to another suitable habitat so as to permit the project to proceed as rapidly as possible." Id., at 11. Toward this end, the Committee recommended a special appropriation of $2 million to facilitate relocation of the snail darter and other endangered species which threatened to delay or stop TVA projects. Much the same occurred on the Senate side, with its Appropriations Committee recommending both the amount requested to complete Tellico and the special appropriation for transplantation of endangered species. Reporting to the Senate on these measures, the Appropriations Committee took a particularly strong stand on the snail darter issue: 35 "This committee has not viewed the Endangered Species Act as preventing the completion and use of these projects which were well under way at the time the affected species were listed as endangered. If the act has such an effect which is contrary to the Committee's understanding of the intent of Congress in enacting the Endangered Species Act, funds should be appropriated to allow these projects to be completed and their benefits realized in the public interest, the Endangered Species Act notwithstanding." S.Rep.No.95-301, p. 99 (1977). (Emphasis added.) 36 TVA's budget, including funds for completion of Tellico and relocation of the snail darter, passed both Houses of Congress and was signed into law on August 7, 1977. Public Works for Water and Power Development and Energy Research Appropriation Act, 1978, 91 Stat. 797. 37 We granted certiorari, 434 U.S. 954, 98 S.Ct. 478, 54 L.Ed.2d 312 (1977), to review the judgment of the Court of Appeals. II 38 We begin with the premise that operation of the Tellico Dam will either eradicate the known population of snail darters or destroy their critical habitat. Petitioner does not now seriously dispute this fact.17 In any event, under § 4(a)(1) of the Act, 87 Stat. 886, 16 U.S.C. § 1533(a)(1) (1976 ed.), the Secretary of the Interior is vested with exclusive authority to determine whether a species such as the snail darter is "endangered" or "threatened" and to ascertain the factors which have led to such a precarious existence. By § 4(d) Congress has authorized—indeed commanded—the Secretary to "issue such regulations as he deems necessary and advisable to provide for the conservation of such species." 16 U.S.C. § 1533(d) (1976 ed.). As we have seen, the Secretary promulgated regulations which declared the snail darter an endangered species whose critical habitat would be destroyed by creation of the Tellico Dam. Doubtless petitioner would prefer not to have these regulations on the books, but there is no suggestion that the Secretary exceeded his authority or abused his discretion in issuing the regulations. Indeed, no judicial review of the Secretary's determinations has ever been sought and hence the validity of his actions are not open to review in this Court. 39 Starting from the above premise, two questions are presented: (a) Would TVA be in violation of the Act if it completed and operated the Tellico Dam as planned? (b) If TVA's actions would offend the Act, is an injunction the appropriate remedy for the violation? For the reasons stated hereinafter, we hold that both questions must be answered in the affirmative. 40 (A) 41 It may seem curious to some that the survival of a relatively small number of three-inch fish among all the countless millions of species extant would require the permanent halting of a virtually completed dam for which Congress has expended more than $100 million. The paradox is not minimized by the fact that Congress continued to appropriate large sums of public money for the project, even after congressional Appropriations Committees were apprised of its apparent impact upon the survival of the snail darter. We conclude, however, that the explicit provisions of the Endangered Species Act require precisely that result. 42 One would be hard pressed to find a statutory provision whose terms were any plainer than those in § 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies "to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence" of an endangered species or "result in the destruction or modification of habitat of such species . . . ." 16 U.S.C. § 1536 (1976 ed.). (Emphasis added.) This language admits of no exception. Nonetheless, petitioner urges, as do the dissenters, that the Act cannot reasonably be interpreted as applying to a federal project which was well under way when Congress passed the Endangered Species Act of 1973. To sustain that position, however, we would be forced to ignore the ordinary meaning of plain language. It has not been shown, for example, how TVA can close the gates of the Tellico Dam without "carrying out" an action that has been "authorized" and "funded" by a federal agency. Nor can we understand how such action will "insure " that the snail darter's habitat is not disrupted.18 Accepting the Secretary's determinations, as we must, it is clear that TVA's proposed operation of the dam will have precisely the opposite effect, namely the eradication of an endangered species. 43 Concededly, this view of the Act will produce results requiring the sacrifice of the anticipated benefits of the project and of many millions of dollars in public funds.19 But examination of the language, history, and structure of the legislation under review here indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities. 44 When Congress passed the Act in 1973, it was not legislating on a clean slate. The first major congressional concern for the preservation of the endangered species had come with passage of the Endangered Species Act of 1966, 80 Stat. 926, repealed, 87 Stat. 903.20 In that legislation Congress gave the Secretary power to identify "the names of the species of native fish and wildlife found to be threatened with extinction," § 1(c), 80 Stat. 926, as well as authorization to purchase land for the conservation, protection, restoration, and propagation of "selected species" of "native fish and wildlife" threatened with extinction. §§ 2(a)-(c), 80 Stat. 926-927. Declaring the preservation of endangered species a national policy, the 1966 Act directed all federal agencies both to protect these species and "insofar as is practicable and consistent with the[ir] primary purposes," § 1(b), 80 Stat. 926, "preserve the habitats of such threatened species on lands under their jurisdiction." Ibid. (Emphasis added.) The 1966 statute was not a sweeping prohibition on the taking of endangered species, however, except on federal lands, § 4(c), 80 Stat. 928, and even in those federal areas the Secretary was authorized to allow the hunting and fishing of endangered species. § 4(d)(1), 80 Stat. 928. 45 In 1969 Congress enacted the Endangered Species Conservation Act, 83 Stat. 275, repealed, 87 Stat. 903, which continued the provisions of the 1966 Act while at the same time broadening federal involvement in the preservation of endangered species. Under the 1969 legislation, the Secretary was empowered to list species "threatened with worldwide extinction," § 3(a), 83 Stat. 275; in addition, the importation of any species so recognized into the United State was prohibited. § 2, 83 Stat. 275. An indirect approach to the taking of endangered species was also adopted in the Conservation Act by way of a ban on the transportation and sale of wildlife taken in violation of any federal, state, or foreign law. §§ 7(a)-(b), 83 Stat. 279.21 46 Despite the fact that the 1966 and 1969 legislation represented "the most comprehensive of its type to be enacted by any nation"22 up to that time, Congress was soon persuaded that a more expansive approach was needed if the newly declared national policy of preserving endangered species was to be realized. By 1973, when Congress held hearings on what would later become the Endangered Species Act of 1973, it was informed that species were still being lost at the rate of about one per year, 1973 House Hearings 306 (statement of Stephen R. Seater, for Defenders of Wildlife), and "the pace of disappearance of species" appeared to be "accelerating." H.R.Rep.No.93-412, p. 4 (1973). Moreover, Congress was also told that the primary cause of this trend was something other than the normal process of natural selection: 47 "[M]an and his technology has [sic] continued at any ever-increasing rate to disrupt the natural ecosystem. This has resulted in a dramatic rise in the number and severity of the threats faced by the world's wildlife. The truth in this is apparent when one realizes that half of the recorded extinctions of mammals over the past 2,000 years have occurred in the most recent 50-year period." 1973 House Hearings 202 (statement of Assistant Secretary of the Interior). 48 That Congress did not view these developments lightly was stressed by one commentator: 49 "The dominant theme pervading all Congressional discussion of the proposed [Endangered Species Act of 1973] was the overriding need to devote whatever effort and resources were necessary to avoid further diminution of national and worldwide wildlife resources. Much of the testimony at the hearings and much debate was devoted to the biological problem of extinction. Senators and Congressmen uniformly deplored the irreplaceable loss to aesthetics, science, ecology, and the national heritage should more species disappear." Coggins, Conserving Wildlife Resources: An Overview of the Endangered Species Act of 1973, 51 N.D.L.Rev. 315, 321 (1975). (Emphasis added.) 50 The legislative proceedings in 1973 are, in fact, replete with expressions of concern over the risk that might lie in the loss of any endangered species.23 Typifying these sentiments is the Report of the House Committee on Merchant Marine and Fisheries on H.R. 37, a bill which contained the essential features of the subsequently enacted Act of 1973; in explaining the need for the legislation, the Report stated: 51 "As we homogenize the habitats in which these plants and animals evolved, and as we increase the pressure for products that they are in a position to supply (usually unwillingly) we threaten their—and our own—genetic heritage. 52 "The value of this genetic heritage is, quite literally, incalculable. 53 * * * * * 54 "From the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations. The reason is simple: they are potential resources. They are keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned to ask. 55 "To take a homely, but apt, example: one of the critical chemicals in the regulation of ovulations in humans was found in a common plant. Once discovered, and analyzed, humans could duplicate it synthetically, but had it never existed—or had it been driven out of existence before we knew its potentialities—we would never have tried to synthesize it in the first place. 56 "Who knows, or can say, what potential cures for cancer or other scourges, present or future, may lie locked up in the structures of plants which may yet be undiscovered, much less analyzed? . . . Sheer self-interest impels us to be cautious. 57 "The institutionalization of that caution lies at the heart of H.R. 37 . . .." H.R.Rep.No.93-412, pp. 4-5 (1973). (Emphasis added.) 58 As the examples cited here demonstrate, Congress was concerned about the unknown uses that endangered species might have and about the unforeseeable place such creatures may have in the chain of life on this planet. 59 In shaping legislation to deal with the problem thus presented, Congress started from the finding that "[t]he two major causes of extinction are hunting and destruction of natural habitat." S.Rep.No.93-307, p. 2 (1973) U.S.Code Cong & Admin.News 1973, pp. 2989, 2990. Of these twin threats, Congress was informed that the greatest was destruction of natural habitats; see 1973 House Hearings 236 (statement of Associate Deputy Chief for National Forest System, Dept. of Agriculture); id., at 241 (statement of Director of Mich. Dept. of Natural Resources); id., at 306 (statement of Stephen R. Seater, Defenders of Wildlife); Lachenmeier, The Endangered Species Act of 1973: Preservation or Pandemonium?, 5 Environ. Law 29, 31 (1974). Witnesses recommended, among other things, that Congress require all land-managing agencies "to avoid damaging critical habitat for endangered species and to take positive steps to improve such habitat." 1973 House Hearings 241 (statement of Director of Mich. Dept. of Natural Resources). Virtually every bill introduced in Congress during the 1973 session responded to this concern by incorporating language similar, if not identical, to that found in the present § 7 of the Act.24 These provisions were designed, in the words of an administration witness, "for the first time [to] prohibit [a] federal agency from taking action which does jeopardize the status of endangered species," Hearings on S. 1592 and S. 1983 before the Subcommittee on Environment of the Senate Committee on Commerce, 93d Cong., 1st Sess., 68 (1973) (statement of Deputy Assistant Secretary of the Interior) (emphasis added); furthermore, the proposed bills would "direc[t] all . . . Federal agencies to utilize their authorities for carrying out programs for the protection of endangered animals." 1973 House Hearings 205 (statement of Assistant Secretary of the Interior). (Emphasis added.) 60 As it was finally passed, the Endangered Species Act of 1973 represented the most comprehensive legislation for the preservation of endangered species ever enacted by any nation. Its stated purposes were "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," and "to provide a program for the conservation of such . . . species . . . ." 16 U.S.C. § 1531(b) (1976 ed.). In furtherance of these goals, Congress expressly stated in § 2(c) that "all Federal departments and agencies shall seek to conserve endangered species and threatened species . . . ." 16 U.S.C. § 1531(c) (1976 ed.). (Emphasis added.) Lest there be any ambiguity as to the meaning of this statutory directive, the Act specifically defined "conserve" as meaning "to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary." § 1532(2). (Emphasis added.) Aside from § 7, other provisions indicated the seriousness with which Congress viewed this issue: Virtually all dealings with endangered species, including taking, possession, transportation, and sale, were prohibited, 16 U.S.C. § 1538 (1976 ed.), except in extremely narrow circumstances, see § 1539(b). The Secretary was also given extensive power to develop regulations and programs for the preservation of endangered and threatened species.25 § 1533(d). Citizen involvement was encouraged by the Act, with provisions allowing interested persons to petition the Secretary to list a species as endangered or threatened, § 1533(c)(2), see n. 11, supra, and bring civil suits in United States district courts to force compliance with any provision of the Act, §§ 1540(c) and (g). 61 Section 7 of the Act, which of course is relied upon by respondents in this case, provides a particularly good gauge of congressional intent. As we have seen, this provision had its genesis in the Endangered Species Act of 1966, but that legislation qualified the obligation of federal agencies by stating that they should seek to preserve endangered species only "insofar as is practicable and consistent with the[ir] primary purposes . . . ." Likewise, every bill introduced in 1973 contained a qualification similar to that found in the earlier statutes.26 Exemplary of these was the administration bill, H.R. 4758, which in § 2(b) would direct federal agencies to use their authorities to further the ends of the Act "insofar as is practicable and consistent with the[ir] primary purposes . . . ." (Emphasis added.) Explaining the idea behind this language, an administration spokesman told Congress that it "would further signal to all . . . agencies of the Government that this is the first priority, consistent with their primary objectives." 1973 House Hearings 213 (statement of Deputy Assistant Secretary of the Interior). (Emphasis added.) This type of language did not go unnoticed by those advocating strong endangered species legislation. A representative of th Sierra Club, for example, attacked the use of the phrase "consistent with the primary purpose" in proposed H.R. 4758, cautioning that the qualification "could be construed to be a declaration of congressional policy that other agency purposes are necessarily more important than protection of endangered species and would always prevail if conflict were to occur." 1973 House Hearings 335 (statement of the chairman of the Sierra Club's National Wildlife Committee); see id., at 251 (statement for the National Audubon Society). 62 What is very significant in this sequence is that the final version of the 1973 Act carefully omitted all of the reservations described above. In the bill which the Senate initially approved (S. 1983), however, the version of the current § 7 merely required federal agencies to "carry out such programs as are practicable for the protection of species listed . . .."27 S. 1983, § 7(a). (Emphasis added.) By way of contrast, the bill that originally passed the House, H.R. 37, contained a provision which was essentially a mirror image of the subsequently passed § 7—indeed all phrases which might have qualified an agency's responsibilities had been omitted from the bill.28 In explaining the expected impact of this provision in H.R. 37 on federal agencies, the House Committee's Report states: 63 "This subsection requires the Secretary and the heads of all other Federal departments and agencies to use their authorities in order to carry out programs for the protection of endangered species, and it further requires that those agencies take the necessary action that will not jeopardize the continuing existence of endangered species or result in the destruction of critical habitat of those species." H.R.Rep.No.93-412, p. 14 (1973). (Emphasis added.) 64 Resolution of this difference in statutory language, as well as other variations between the House and Senate bills, was the task of a Conference Committee. See 119 Cong.Rec. 30174-30175, 31183 (1973). The Conference Report, H.R. Conf.Rep. No. 93-740 (1973), U.S.Code Cong. & Admin.News 1973, p. 2989, basically adopted the Senate bill, S. 1983; but the conferees rejected the Senate version of § 7 and adopted the stringent, mandatory language in H.R. 37. While the Conference Report made no specific reference to this choice of provisions, the House manager of the bill, Representative Dingell, provided an interpretation of what the Conference bill would require, making it clear that the mandatory provisions of § 7 were not casually or inadvertently included: 65 "[Section 7] substantially amplifie[s] the obligation of [federal agencies] to take steps within their power to carry out the purposes of this act. A recent article . . . illustrates the problem which might occur absent this new language in the bill. It appears that the whooping cranes of this country, perhaps the best known of our endangered species, are being threatened by Air Force bombing activities along the gulf coast of Texas. Under existing law, the Secretary of Defense has some discretion as to whether or not he will take the necessary action to see that this threat disappears . . . . [O]nce the bill is enacted, [the Secretary of Defense] would be required to take the proper steps. . . . 66 "Another example . . . [has] to do with the continental population of grizzly bears which may or may not be endangered, but which is surely threatened. . . . Once this bill is enacted, the appropriate Secretary, whether of Interior, Agriculture or whatever, will have to take action to see that this situation is not permitted to worsen, and that these bears are not driven to extinction. The purposes of the bill included the conservation of the species and of the ecosystems upon which they depend, and every agency of government is committed to see that those purposes are carried out. . . . [T]he agencies of Government can no longer plead that they can do nothing about it. They can, and they must. The law is clear." 119 Cong.Rec. 42913 (1973). (Emphasis added.) 67 It is against this legislative background29 that we must measure TVA's claim that the Act was not intended to stop operation of a project which, like Tellico Dam, was near completion when an endangered species was discovered in its path. While there is no discussion in the legislative history of precisely this problem, the totality of congressional action makes it abundantly clear that the result we reach today is wholly in accord with both the words of the statute and the intent of Congress. The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally every section of the statute. All persons, including federal agencies, are specifically instructed not to "take" endangered species, meaning that no one is "to harass, harm,[30] pursue, hunt, shoot, wound, kill, trap, capture, or collect" such life forms. 16 U.S.C. §§ 1532(14), 1538(a)(1)(B) (1976 ed.). Agencies in particular are directed by §§ 2(c) and 3(2) of the Act to "use . . . all methods and procedures which are necessary" to preserve endangered species. 16 U.S.C. §§ 1531(c), 1532(2) (emphasis added) (1976 ed.). In addition, the legislative history undergirding § 7 reveals an explicit congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species. The pointed omission of the type of qualifying language previously included in endangered species legislation reveals a conscious decision by Congress to give endangered species priority over the "primary missions" of federal agencies. 68 It is not for us to speculate, much less act, on whether Congress would have altered it stance had the specific events of this case been anticipated. In any event, we discern no hint in the deliberations of Congress relating to the 1973 Act that would compel a different result than we reach here.31 Indeed, the repeated expressions of congressional concern over what it saw as the potentially enormous danger presented by the eradication of any endangered species suggest how the balance would have been struck had the issue been presented to Congress in 1973. 69 Furthermore, it is clear Congress foresaw that § 7 would, on occasion, require agencies to alter ongoing projects in order to fulfill the goals of the Act.32 Congressman Dingell's discussion of Air Force practice bombing, for instance, obviously pinpoints a particular activity—intimately related to the national defense—which a major federal department would be obliged to alter in deference to the strictures of § 7. A similar example is provided by the House Committee Report: 70 "Under the authority of [§ 7], the Director of the Park Service would e required to conform the practices of his agency to the need for protecting the rapidly dwindling stock of grizzly bears within Yellowstone Park. These bears, which may be endangered, and are undeniably threatened, should at least be protected by supplying them with carcasses from excess elk within the park, by curtailing the destruction of habitat by clearcutting National Forests surrounding the Park, and by preventing hunting until their numbers have recovered sufficiently to withstand these pressures." H.R.Rep.No.93-412, p. 14 (1973). (Emphasis added.) 71 One might dispute the applicability of these examples to the Tellico Dam by saying that in this case the burden on the public through the loss of millions of unrecoverable dollars would greatly outweigh the loss of the snail darter.33 But neither the Endangered Species Act nor Art. III of the Constitution provides federal courts with authority to make such fine utilitarian calculations. On the contrary, the plain language of the Act, buttressed by its legislative history, shows clearly that Congress viewed the value of endangered species as "incalculable." Quite obviously, it would be difficult for a court to balance the loss of a sum certain—even $100 million against a congressionally declared "incalculable" value, even assuming we had the power to engage in such a weighing process, which we emphatically do not. 72 In passing the Endangered Species Act of 1973, Congress was also aware of certain instances in which exceptions to the statute's broad sweep would be necessary. Thus, § 10, 16 U.S.C. § 1539 (1976 ed.), creates a number of limited "hardship exemptions," none of which would even remotely apply to the Tellico Project. In fact, there are no exemptions in the Endangered Species Act for federal agencies, meaning that under the maxim expressio unius est exclusio alterius, we must presume that these were the only "hardship cases" Congress intended to exempt. Cf. National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974).34 73 Notwithstanding Congress' expression of intent in 1973, we are urged to find that the continuing appropriations for Tellico Dam constitute an implied repeal of the 1973 Act, at least insofar as it applies to the Tellico Project. In support of this view, TVA points to the statements found in various House and Senate Appropriations Committees' Reports; as described in Part I, supra, those Reports generally reflected the attitude of the Committees either that the Act did not apply to Tellico or that the dam should be completed regardless of the provisions of the Act. Since we are unwilling to assume that these latter Committee statements constituted advice to ignore the provisions of a duly enacted law, we assume that these Committees believed that the Act simply was not applicable in this situation. But even under this interpretation of the Committees' actions, we are unable to conclude that the Act has been in any respect amended or repealed. 74 There is nothing in the appropriations measures, as passed, which states that the Tellico Project was to be completed irrespective of the requirements of the Endangered Species Act. These appropriations, in fact, represented relatively minor components of the lump-sum amounts for the entire TVA budget.35 To find a repeal of the Endangered Species Act under these circumstances would surely do violence to the " 'cardinal rule . . . that repeals by implication are not favored.' " Morton v. Mancari, 417 U.S. 535, 549, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974), quoting Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936). In Posadas this Court held, in no uncertain terms, that "the intention of the legislature to repeal must be clear and manifest." Ibid. See Georgia v. Pennsylvania R. Co., 324 U.S. 439, 456-457, 65 S.Ct. 716, 725-726, 89 L.Ed. 1051 (1945) ("Only a clear repugnancy between the old . . . and the new [law] results in the former giving way . . ."); United States v. Borden Co., 308 U.S. 188, 198-199, 60 S.Ct. 182, 188, 84 L.Ed. 181 (1939) ("[I]ntention of the legislature to repeal 'must be clear and manifest.' . . . '[A] positive repugnancy [between the old and the new laws]' "); Wood v. United States, 16 Pet. 342, 363, 10 L.Ed. 987 (1842) ("[T]here must be a positive repugnancy . . . "). In practical terms, this "cardinal rule" means that "[i]n the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable." Mancari, supra, 417 U.S., at 550, 94 S.Ct., at 2482. 75 The doctrine disfavoring repeals by implication "applies with full vigor when . . . the subsequent legislation is an appropriations measure." Committee for Nuclear Responsibility v. Seaborg, 149 U.S.App.D.C. 380, 382, 463 F.2d 783, 785 (1971) (emphasis added); Environmental Defense Fund v. Froehlke, 473 F.2d 346, 355 (CA8 1972). This is perhaps an understatement since it would be more accurate to say that the policy applies with evengreater force when the claimed repeal rests solely on an Appropriations Act. We recognize that both substantive enactments and appropriations measures are "Acts of Congress," but the latter have the limited and specific purpose of providing funds for authorized programs. When voting on appropriations measures, legislators are entitled to operate under the assumption that the funds will be devoted to purposes which are lawful and not for any purpose forbidden. Without such an assurance, every appropriations measure would be pregnant with prospects of altering substantive legislation, repealing by implication any prior statute which might prohibit the expenditure. Not only would this lead to the absurd result of requiring Members to review exhaustively the background of every authorization before voting on an appropriation, but it would flout the very rules the Congress carefully adopted to avoid this need. House Rule XXI(2), for instance, specifically provides: 76 "No appropriation shall be reported in any general appropriation bill, or be in order as an amendment thereto, for any expenditure not previously authorized by law, unless in continuation of appropriations for such public works as are already in progress. Nor shall any provision in any such bill or amendment thereto changing existing law be in order." (Emphasis added.) 77 See also Standing Rules of the Senate, Rule 16.4. Thus, to sustain petitioner's position, we would be obliged to assume that Congress meant to repeal pro tanto § 7 of the Act by means of a procedure expressly prohibited under the rules of Congress. 78 Perhaps mindful of the fact that it is "swimming upstream" against a strong current of well-established precedent, TVA argues for an exception to the rule against implied repealers in a circumstance where, as here, Appropriations Committees have expressly stated their "understanding" that the earlier legislation would not prohibit the proposed expenditure. We cannot accept such a proposition. Expressions of committees dealing with requests for appropriations cannot be equated with statutes enacted by Congress, particularly not in the circumstances presented by this case. First, the Appropriations Committees had no jurisdiction over the subject of endangered species, much less did they conduct the type of extensive hearings which preceded passage of the earlier Endangered Species Acts, especially the 1973 Act. We venture to suggest that the House Committee on Merchant Marine and Fisheries and the Senate Committee on Commerce would be somewhat surprised to learn that their careful work on the substantive legislation had been undone by the simple—and brief—insertion of some inconsistent language in Appropriations Committees' Reports. 79 Second, there is no indication that Congress as a whole was aware of TVA's position, although the Appropriations Committees apparently agreed with petitioner's views. Only recently in SEC v. Sloan, 436 U.S. 103, 98 S.Ct. 1702, 56 L.Ed.2d 148 (1978), we declined to presume general congressional acquiescence in a 34-year-old practice of the Securities and Exchange Commission, despite the fact that the Senate Committee having jurisdiction over the Commission's activities had long expressed approval of the practice. Mr. Justice REHNQUIST, speaking for the Court, observed that we should be "extremely hesitant to presume general congressional awareness of the Commission's construction based only upon a few isolated statements in the thousands of pages of legislative documents." Id., at 121, 98 S.Ct., at 1713. A fortiori, we should not assume that petitioner's views—and the Appropriations Committees' acceptance of them—were any better known, especially when the TVA is not the agency with primary responsibility for administering the Endangered Species Act. 80 Quite apart from the foregoing factors, we would still be unable to find that in this case "the earlier and later statutes are irreconcilable," iMancari, 417 U.S., at 551, 94 S.Ct., at 2483; here it is entirely possible "to regard each as effective." Id., at 550, 94 S.Ct., at 2482. The starting point in this analysis must be the legislative proceedings leading to the 1977 appropriations since the earlier funding of the dam occurred prior to the listing of the snail darter as an endangered species. In all successive years, TVA confidently reported to the Appropriations Committees that efforts to transplant the snail darter appeared to be successful; this surely gave those Committees some basis for the impression that there was no direct conflict between the Tellico Project and the Endangered Species Act. Indeed, the special appropriation for 1978 of $2 million for transplantation of endangered species supports the view that the Committees saw such relocation as the means whereby collision between Tellico and the Endangered Species Act could be avoided. It should also be noted that the Reports issued by the Senate and House Appropriations Committees in 1976 came within a month of the District Court's decision in this case, which hardly could have given the Members cause for concern over the possible applicability of the Act. This leaves only the 1978 appropriations, the Reports for which issued after the Court of Appeals' decision now before us. At that point very little remained to be accomplished on the project; the Committees understandably advised TVA to cooperate with the Department of the Interior "to relocate the endangered species to another suitable habitat so as to permit the project to proceed as rapidly as possible." H.R.Rep.No.95-379, p. 11 (1977). It is true that the Committees repeated their earlier expressed "view" that the Act did not prevent completion of the Tellico Project. Considering these statements in context, however, it is evident that they " 'represent only the personal views of these legislators,' " and "however explicit, [they] cannot serve to change the legislative intent of Congress expressed before the Act's passage." Regional Rail Reorganization Act Cases, 419 U.S. 102, 132, 95 S.Ct. 335, 353, 42 L.Ed.2d 320 (1974). 81 (B) 82 Having determined that there is an irreconcilable conflict between operation of the Tellico Dam and the explicit provisions of § 7 of the Endangered Species Act, we must now consider what remedy, if any, is appropriate. It is correct, of course, that a federal judge sitting as a chancellor is not mechanically obligated to grant an injunction for every violation of law. This Court made plain in Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 591, 88 L.Ed. 754 (1944), that "[a] grant of jurisdiction to issue compliance orders hardly suggests an absolute duty to do so under any and all circumstances." As a general matter it may be said that "[s]ince all or almost all equitable remedies are discretionary, the balancing of equities and hardships is appropriate in almost any case as a guide to the chancellor's discretion." D. Dobbs, Remedies 52 (1973). Thus, in Hecht Co. the Court refused to grant an injunction when it appeared from the District Court findings that "the issuance of an injunction would have 'no effect by way of insuring better compliance in the future' and would [have been] 'unjust' to [the] petitioner and not 'in the public interest.' " 321 U.S., at 326, 64 S.Ct., at 590. 83 But these principles take a court only so far. Our system of government is, after all, a tripartite one, with each branch having certain defined functions delegated to it by the Constitution. While "[i]t is emphatically the province and duty of the judicial department to say what the law is," Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803), it is equally—and emphatically—the exclusive province of the Congress not only to formulate legislative policies and mandate programs and projects, but also to establish their relative priority for the Nation. Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for the Executive to administer the laws and for the courts to enforce them when enforcement is sought. 84 Here we are urged to view the Endangered Species Act "reasonably," and hence shape a remedy "that accords with some modicum of common sense and the public weal." Post, at 196. But is that our function? We have no expert knowledge on the subject of endangered species, much less do we have a mandate from the people to strike a balance of equities on the side of the Tellico Dam. Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as "institutionalized caution." 85 Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power of veto. The lines ascribed to Sir Thomas More by Robert Bolt are not without relevance here: 86 "The law, Roper, the law. I know what's legal, not what's right. And I'll stick to what's legal. . . . I'm not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can't navigate, I'm no voyager. But in the thickets of the law, oh there I'm a forester. . . . What would you do? Cut a great road through the law to get after the Devil? . . . And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? . . . This country's planted thick with laws from coast to coast—Man's laws, not God's—and if you cut them down . . . d'you really think you could stand upright in the winds that would blow then? . . . Yes, I'd give the Devil benefit of law, for my own safety's sake." R. Bolt, A Man for All Seasons, Act I, p. 147 (Three Plays, Heinemann ed. 1967). 87 We agree with the Court of Appeals that in our constitutional system the commitment to the separation of powers is too fundamental for us to pre-empt congressional action by judicially decreeing what accords with "common sense and the public weal." Our Constitution vests such responsibilities in the political branches. 88 Affirmed. 89 Mr. Justice POWELL, with whom Mr. Justice BLACKMUN joins, dissenting. 90 The Court today holds that § 7 of the Endangered Species Act requires a federal court, for the purpose of protecting an endangered species or its habitat, to enjoin permanently the operation of any federal project, whether completed or substantially completed. This decision casts a long shadow over the operation of even the most important projects, serving vital needs of society and national defense, whenever it is determined that continued operation would threaten extinction of an endangered species or its habitat. This result is said to be required by the "plain intent of Congress" as well as by the language of the statute. 91 In my view § 7 cannot reasonably be interpreted as applying to a project that is completed or substantially completed1 when its threat to an endangered species is discovered. Nor can I believe that Congress could have intended this Act to produce the "absurd result"—in the words of the District Court—of this case. If it were clear from the language of the Act and its legislative history that Congress intended to authorize this result, this Court would be compelled to enforce it. It is not our province to rectify policy or political judgments by the Legislative Branch, however egregiously they may disserve the public interest. But where the statutory language and legislative history, as in this case, need not be construed to reach such a result, I view it as the du y of this Court to adopt a permissible construction that accords with some modicum of common sense and the public weal. 92 * Although the Court has stated the facts fully, and fairly presented the testimony and action of the Appropriations Committees relevant to this case, I now repeat some of what has been said. I do so because I read the total record as compelling rejection of the Court's conclusion that Congress intended the Endangered Species Act to apply to completed or substantially completed projects such as the dam and reservoir project that today's opinion brings to an end—absent relief by Congress itself. 93 In 1966, Congress authorized and appropriated initial funds for the construction by the Tennessee Valley Authority (TVA) of the Tellico Dam and Reservoir Project on the Little Tennessee River in eastern Tennessee. The Project is a comprehensive water resource and regional development project designed to control flooding, provide water supply, promote industrial and recreational development, generate some additional electric power within the TVA system, and generally improve economic conditions in an economically depressed area "characterized by underutilization of human resources and outmigration of young people."2 94 Construction began in 1967, and Congress has voted funds for the project in every year since. In August 1973, when the Tellico Project was half completed, a new species of fish known as the snail darter3 was discovered in the portion of the Little Tennessee River that would be impounded behind Tellico Dam. The Endangered Species Act was passed the following December. 87 Stat. 884, 16 U.S.C. § 1531 et seq. (1976 ed.). More than a year later, in January 1975, respondents joined others in petitioning the Secretary of the Interior to list the snail darter as an endangered species. On November 10, 1975, when the Tellico Project was 75% completed, the Secretary placed the snail darter on the endangered list and concluded that the "proposed impoundment of water behind the proposed Tellico Dam would result in total destruction of the snail darter's habitat." 40 Fed.Reg. 47506 (1975). In respondents' view, the Secretary's action meant that completion of the Tellico Project would violate § 7 of the Act, 16 U.S.C. § 1536 (1976 ed.): 95 "All . . . Federal departments and agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species . . . listed pursuant to section 1533 of this title and by taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat o such species which is determined by the Secretary . . . to be critical." 96 TVA nevertheless determined to continue with the Tellico Project in accordance with the prior authorization by Congress. In February 1976, respondents filed the instant suit to enjoin its completion. By that time the Project was 80% completed. 97 In March 1976, TVA informed the House and Senate Appropriations Committees about the Project's threat to the snail darter and about respondents' lawsuit. Both Committees were advised that TVA was attempting to preserve the fish by relocating them in the Hiwassee River, which closely resembles the Little Tennessee. It stated explicitly, however, that the success of those efforts could not be guaranteed.4 98 In a decision of May 25, 1976, the District Court for the Eastern District of Tennessee held that "the Act should not be construed as preventing completion of the project."5 419 F.Supp. 753, 755 n. 2. An opposite construction, said the District Court would be unreasonable: 99 "At some point in time a federal project becomes so near completion and so incapable of modification that a court of equity should not apply a statute enacted long after inception of the project to produce an unreasonable result. Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1331-32 (4th Cir.), cert. den. 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261 (1972). Where there has been an irreversible and irretrievable commitment of resources by Congress to a project over a span of almost a decade, the Court should proceed with a great deal of circumspection." Id., at 760. 100 Observing that respondents' argument, carried to its logical extreme, would require a court to enjoin the impoundment of water behind a fully completed dam if an endangered species were discovered in the river on the day before the scheduled impoundment, the District Court concluded that Congress could not have intended such a result.6 Accordingly, it denied the prayer for an injunction and dismissed the action. 101 In 1975, 1976, and 1977, Congress, with full knowledge of the Tellico Project's effect on the snail darter and the alleged violation of the Endangered Species Act, continued to appropriate money for the completion of the Project. In doing so, the Appropriations Committees expressly stated that the Act did not prohibit the Project's completion, a view that Congress presumably accepted in approving the appropriations each year. For example, in June 1976, the Senate Committee on Appropriations released a report noting the District Court decision and recommending approval of TVA's full budget request for the Tellico Project. The Committee observed further that it did "not view the Endangered Species Act as prohibiting the completion of the Tellico project at its advanced stage," and it directed "that this project be completed as promptly as possible in the public interest."7 The appropriations bill was passed by Congress and approved by the President. 102 The Court of Appeals for the Sixth Circuit nevertheless reversed the District Court in January 1977. It held that the Act was intended to create precisely the sort of dramatic conflict presented in this case: "Where a project is on-going and substantial resources have already been expended, the conflict between national incentives to conserve living things and the pragmatic momentum to complete the project on schedule is most incisive." 549 F.2d 1064, 1071. Judicial resolution of that conflict, the Court of Appeals reasoned, would represent usurpation of legislative power. It quoted the District Court's statement that respondents' reading of the Act, taken to its logical extreme, would compel a court to halt impoundment of water behind a dam if an endangered species were discovered in the river on the day before the scheduled impoundment. The Court of Appeals, however, rejected the District Court's conclusion that such a reading was unreasonable and contrary to congressional intent, holding instead that "[c]onscientious enforcement of the Act requires that it be taken to its logical extreme." Ibid. It remanded with instructions to issue a permanent injunction halting all activities incident to the Tellico Project that would modify the critical habitat of the snail darter. 103 In June 1977, and after being informed of the decision of the Court of Appeals, the Appropriations Committees in both Houses of Congress again recommended approval of TVA's full budget request for the Tellico Project. Both Committees again stated unequivocally that the Endangered Species Act was not intended to halt projects at an advanced stage of completion: 104 "[The Senate] Committee has not viewed the Endangered Species Act as preventing the completion and use of these projects which were well under way at the time the affected species were listed as endangered. If the act has such an effect, which is contrary to the Committee's understanding of the intent of Congress in enacting the Endangered Species Act, funds should be appropriated to allow these projects to be completed and their benefits realized in the public interest, the Endangered Species Act notwithstanding."8 105 "It is the [House] Committee's view that the Endangered Species Act was not intended to halt projects such as these in their advanced stage of completion, and [the Committee] strongly recommends that these projects not be stopped because of misuse of the Act."9 106 Once again, the appropriations bill was passed by both Houses and signed into law. II 107 Today the Court, like the Court of Appeals below, adopts a reading of § 7 of the Act that gives it a retroactive effect and disregards 12 years of consistently expressed congressional intent to complete the Tellico Project. With all due respect, I view this result as an extreme example of a literalist10 construction, not required by the language of the Act and adopted without regard to its manifest purpose. Moreover, it ignores established canons of statutory construction. A. 108 The starting point in statutory construction is, of course, the language of § 7 itself. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (POWELL, J., concurring). I agree that it can be viewed as a textbook example of fuzzy language, which can be read according to the "eye of the beholder."11 The critical words direct all federal agencies to take "such action [as may be] necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of . . . endangered species . . . or result in the destruction or modification of [a critical] habitat of such species . . . ." Respondents—as did the Sixth Circuit—read these words as sweepingly as possible to include all "actions" that any federal agency ever may take with respect to any federal project, whether completed or not. 109 The Court today embraces this sweeping construction. Ante, at 184-188. Under the Court's reasoning, the Act covers every existing federal installation, including great hydroelectric projects and reservoirs, every river and harbor project, and every national defense installation—however essential to the Nation's economic health and safety. The "actions" that an agency would be prohibited from "carrying out" would include the continued operation of such projects or any change necessary to preserve their continued usefulness.12 The only precondition, according to respondents, to thus destroying the usefulness of even the most important federal project in our country would be a finding by the Secretary of the Interior that a continuation of the project would threaten the survival or critical habitat of a newly discovered species of water spider or amoeba.13 110 "[F]requently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act." Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892).14 The result that will follow in this case by virtue of the Court's reading of § 7 makes it unreasonable to believe that Congress intended that reading. Moreover, § 7 may be construed in a way that avoids an "absurd result" without doing violence to its language. 111 The critical word in § 7 is "actions" and its meaning is far from "plain." It is part of the phrase: "actions authorized, funded or carried out." In terms of planning and executing various activities, it seems evident that the "actions" referred to are not all actions that an agency can ever take, but rather actions that the agency is deciding whether to authorize, to fund, or to carry out. In short, these words reasonably may be read as applying only to prospective actions, i. e., actions with respect to which the agency has reasonable decisionmaking alternatives still available, actions not yet carried out. At the time respondents brought this lawsuit, the Tellico Project was 80% complete at a cost of more than $78 million. The Court concedes that as of this time and for the purpose of deciding this case, the Tellico Dam Project is "completed" or "virtually completed and the dam is essentially ready for operation," ante, at 156, 157-158. See n. 1, supra. Thus, under a prospective reading of § 7, the action already had been "carried out" in terms of any remaining reasonable decisionmaking power. Cf. National Wildlife Federation v. Coleman, 529 F.2d 359, 363, and n. 5 (CA5), cert. denied sub nom. Boteler v. National Wildlife Federation, 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587 (1976). 112 This is a reasonable construction of the language and also is supported by the presumption against construing statutes to give them a retroactive effect. As this Court stated in United States Fidelity & Guaranty Co. v. United States ex rel. Struthers Wells Co., 209 U.S. 306, 314, 28 S.Ct. 537, 539, 52 L.Ed. 804 (1908), the "presumption is very strong that a statute was not meant to act retrospectively, and it ought never to receive such a construction if it is susceptible of any other." This is particularly true where a statute enacts a new regime of regulation. For example, the presumption has been recognized in cases under the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., holding that the requirement of filing an environmental impact statement cannot reasonably be applied to projects substantially completed. E. g., Pizitz, Inc. v. Volpe, 467 F.2d 208 (CA5 1972); Ragland v. Mueller, 460 F.2d 1196 (CA5 1972); Greene County Planning Board v. FPC, 455 F.2d 412, 424 (CA2), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972). The Court of Appeals for the Fourth Circuit explained these holdings. 113 "Doubtless Congress did not intend that all projects ongoing at the effective date of the Act be subject to the requirements of Section 102. At some stage of progress, the costs of altering or abandoning the project could so definitely outweigh whatever benefits that might accrue therefrom that it might no longer be 'possible' to change the project in accordance with Section 102. At some stage, federal action may be so 'complete' that applying the Act could be considered a 'retroactive' application not intended by the Congress." Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1331, cert. denied sub nom. Fugate v. Arlington Coalition on Transportation, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261 (1972). 114 Similarly under § 7 of the Endangered Species Act, at some stage of a federal project, and certainly where a project has been completed, the agency no longer has a reasonable choice simply to abandon it. When that point is reached, as it was in this case, the presumption against retrospective interpretation is at its strongest. The Court today gives no weight to that presumption. B 115 The Court recognizes that the first purpose of statutory construction is to ascertain the intent of the legislature. E. g., United States v. American Trucking Assns., 310 U.S. 534, 542, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940).15 The Court's opinion reviews at length the legislative history, with quotations from Committee Reports and statements by Members of Congress. The Court then ends this discussion with curiously conflicting conclusions. 116 It finds that the "totality of congressional action makes it abundantly clear that the result we reach today [justifying the termination or abandonment of any federal project] is wholly in accord with both the words of the statute and the intent of Congress." Ante, at 184. Yet, in the same paragraph, the Court acknowledges that "there is no discussion in the legislative history of precisely this problem." The opinion nowhere makes clear how the result it reaches can be "abundantly" self-evident from the legislative history when the result was never discussed. While the Court's review of the legislative history establishes that Congress intended to require governmental agencies to take endangered species into account in the planning and execution of their programs,16 there is not even a hint in the legislative history that Congress intended to compel the undoing or abandonment of any project or program later found to threaten a newly discovered species.17 117 If the relevant Committees that considered the Act, and the Members of Congress who voted on it, had been aware that the Act could be used to terminate major federal projects authorized years earlier and nearly completed, or to require the abandonment of essential and long-completed federal installations and edifices,18 we can be certain that there would have been hearings, testimony, and debate concerning consequences so wasteful, so inimical to purposes previously deemed important, and so likely to arouse public outrage. The absence of any such consideration by the Committees or in the floor debates indicates quite clearly that no one participating in the legislative process considered these consequences as within the amendment of the Act. 118 As indicated above, this view of legislative intent at the time of enactment is abundantly confirmed by the subsequent congressional actions and expressions. We have held, properly, that post-enactment statements by individual Members of Congress as to the meaning of a statute are entitled to little or no weight. See, e. g., Regional Rail Reorganization Act Cases, 419 U.S. 102, 132, 95 S.Ct. 335, 352, 42 L.Ed.2d 320 (1974). The Court also has recognized that subsequent Appropriations Acts themselves are not necessarily entitled to significant weight in determining whether a prior statute has been superseded. See United States v. Langston, 118 U.S. 389, 393, 6 S.Ct. 1185, 1186, 30 L.Ed. 164 (1886). But these precedents are inapposite. There was no effort here to "bootstrap" a post-enactment view of prior legislation by isolated statements of individual Congressmen. Nor is this a case where Congress, without explanation or comment upon the statute in question, merely has voted apparently inconsistent financial support in subsequent Appropriations Acts. Testimony on this precise issue was presented before congressional committees, and the Committee Reports for three consecutive years addressed the problem and affirmed their understanding of the original congressional intent. We cannot assume—as the Court suggests—that Congress, when it continued each year to approve the recommended appropriations, was unaware of the contents of the supporting Committee Reports. All this amounts to strong corroborative evidence that the interpretation of § 7 as not applying to completed or substantially completed projects reflects the initial legislative intent. See, e. g., Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116, 67 S.Ct. 1129, 1132, 91 L.Ed. 1129 (1947); Brooks v. Dewar, 313 U.S. 354, 61 S.Ct. 979, 85 L.Ed. 1399 (1941). III 119 I have little doubt that Congress will amend the Endangered Species Act to prevent the grave consequences made possible by today's decision. Few, if any, Members of that body will wish to defend an interpretation of the Act that requires the waste of at least $53 million, see n. 6, supra, and denies the people of the Tennessee Valley area the benefits of the reservoir that Congress intended to confer.19 There will be little sentiment to leave this dam standing before an empty reservoir, serving no purpose other than a conversation piece for incredulous tourists. 120 But more far reaching than the adverse effect on the people of this economically depressed area is the continuing threat to the operation of every federal project, no matter how important to the Nation. If Congress acts expeditiously, as may be anticipated, the Court's decision probably will have no lasting adverse consequences. But I had not thought it to be the province of this Court to force Congress into otherwise unnecessary action by interpreting a statute to produce a result no one intended. 121 Mr. Justice REHNQUIST, diss nting. 122 In the light of my Brother POWELL's dissenting opinion, I am far less convinced than is the Court that the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq. (1976 ed.), was intended to prohibit the completion of the Tellico Dam. But the very difficulty and doubtfulness of the correct answer to this legal question convinces me that the Act did not prohibit the District Court from refusing, in the exercise of its traditional equitable powers, to enjoin petitioner from completing the Dam. Section 11(g)(1) of the Act, 16 U.S.C. § 1540(g)(1) (1976 ed.), merely provides that "any person may commence a civil suit on his own behalf . . . to enjoin any person, including the United States and any other governmental instrumentality or agency . . ., who is alleged to be in violation of any provision of this chapter." It also grants the district courts "jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce any such provision." 123 This Court had occasion in Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754 (1944), to construe language in an Act of Congress that lent far greater support to a conclusion that Congress intended an injunction to issue as a matter of right than does the language just quoted. There the Emergency Price Control Act of 1942 provided that 124 "[u]pon a showing by the Administrator that [a] person has engaged or is about to engage in any [acts or practices violative of this Act] a permanent or temporary injunction, restraining order, or other order shall be granted without bond." 56 Stat. 33 (emphasis added). 125 But in Hecht this Court refused to find even in such language an intent on the part of Congress to require that a district court issue an injunction as a matter of course without regard to established equitable considerations, saying: 126 "Only the other day we stated that 'An appeal to the equity jurisdiction conferred on federal district courts is an appeal to the sound discretion which guides the determinations of courts of equity.' . . . The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims. We do not believe that such a major departure from that long tradition as is here proposed should be lightly implied. . . . [I]f Congress desired to make such an abrupt departure from traditional equity practice as is suggested, it would have made its desire plain." 321 U.S., at 329-330, 64 S.Ct., at 592. 127 Only by sharply retreating from the principle of statutory construction announced in Hecht Co. could I agree with the Court of Appeals' holding in this case that the judicial enforcement provisions contained in § 11(g)(1) of the Act require automatic issuance of an injunction by the district courts once a violation is found. I choose to adhere to Hecht Co.'s teaching: 128 "[A] grant of jurisdiction to issue compliance orders hardly suggests an absolute duty to do so under any and all circumstances. We cannot but think that if Congress had intended to make such a drastic departure from the traditions of equity practice, an unequivocal statement of its purpose would have been made." 321 U.S., at 329, 64 S.Ct., at 591. 129 Since the District Court possessed discretion to refuse injunctive relief even though it had found a violation of the Act, the only remaining question is whether this discretion was abused in denying respondents' prayer for an injunction. Locomotive Engineers v. Missouri, K. & T. R. Co., 363 U.S. 528, 535, 80 S.Ct. 1326, 1330, 4 L.Ed.2d 1379 (1960). The District Court denied respondents injunctive relief because of the significant public and social harms that would flow from such relief and because of the demonstrated good faith of petitioner. As the Court recognizes, ante, at 193, such factors traditionally have played a central role in the decisions of equity courts whether to deny an injunction. See also 7 J. Moore, Federal Practice ¶ 65.18[3] (1972); Yakus v. United States, 321 U.S. 414, 440-441, 64 S.Ct. 660, 674-675, 88 L.Ed. 834 (1944). This Court has specifically held that a federal court can refuse to order a federal official to take specific action, even though the action might be required by law, if such an order "would work a public injury or embarrassment" or otherwise "be prejudicial to the public interest." United States ex rel. Greathouse v. Dern, 289 U.S. 352, 360, 53 S.Ct. 614, 617, 77 L.Ed. 1250 (1933). Here the District Court, confronted with conflicting evidence of congressional purpose, was on even stronger ground in refusing the injunction. 130 Since equity is "the instrument for nice adjustment and reconciliation between the public interest and private needs," Hecht Co., supra, 321 U.S., at 329-330, 64 S.Ct., at 592, a decree in one case will seldom be the exact counterpart of a decree in another. See, e. g., Eccles v. People's Bank, 333 U.S. 426, 68 S.Ct. 641, 92 S.Ct. 784 (1948); Penn Mutual Life Ins. Co. v. Austin, 168 U.S. 685, 18 S.Ct. 223, 42 L.Ed. 626 (1898). Here the District Court recognized that Congress, when it enacted the Endangered Species Act, made the preservation of the habitat of the snail darter an important public concern. But it concluded that this interest on one side of the balance was more than outweighed by other equally significant factors. These factors, further elaborated in the dissent of my Brother POWELL, satisfy me that the District Court's refusal to issue an injunction was not an abuse of its discretion. I therefore dissent from the Court's opinion holding otherwise. 1 This description is taken from the opinion of the District Judge in the first litigation involving the Tellico Dam and Reservoir Project. Environmental Defense Fund v. TVA, 339 F.Supp. 806, 808 (ED Tenn.1972). In his opinion, "all of these benefits of the present Little Tennessee River Valley will be destroyed by impoundment of the river . . . ." Ibid. The District Judge noted that "[t]he free-flowing river is the likely habitat of one or more of seven rare or endangered fish species." Ibid. 2 See Brief for the Eastern Band of Cherokee Indians as Amicus Curiae 2. See also Mooney, Myths of the Cherokee, 19 Bureau of American Ethnology Ann. Rep. 11 (1900); H. Timberlake, Memoirs, 1756-1765 (Watauga Press 1927); A. Brewer & C. Brewer, Valley So Wild: A Folk History (East Tenn. Historical Soc. 1975). 3 Public Works Appropriation Act, 1967, 80 Stat. 1002, 1014. 4 Tellico Dam itself will contain no electric generators; however, an interreservoir canal connecting Tellico Reservoir with a nearby hydroelectric plant will augment the latter's capacity. 5 The NEPA injunction was in effect some 21 months; when it was entered TVA had spent some $29 million on the project. Most of these funds have gone to purchase land, construct the concrete portions of the dam, and build a four-lane steel span bridge to carry a state highway over the proposed reservoir. 339 F.Supp., at 808. 6 The snail darter was scientifically described by Dr. Etnier in the Proceedings of the Biological Society of Washington, Vol. 88, No. 44, pp. 469-488 (Jan. 22, 1976). The scientific merit and content of Dr. Etnier's paper on the snail darter were ch cked by a panel from the Smithsonian Institution prior to publication. See App. 111. 7 In Tennessee alone there are 85 to 90 species of darters, id., at 131, of which upward to 45 live in the Tennessee River system. Id., at 130. New species of darters are being constantly discovered and classified—at the rate of about one per year. Id., at 131. This is a difficult task for even trained ichthyologists since species of darters are often hard to differentiate from one another. Ibid. 8 An "endangered species" is defined by the Act to mean "any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming and overriding risk to man." 16 U.S.C. § 1532(4) (1976 ed.). " 'The act covers every animal and plant species, subspecies, and population in the world needing protection. There are approximately 1.4 million full species of animals and 600,000 full species of plants in the world. Various authorities calculate as many as 10% of them—some 200,000—may need to be listed as Endangered or Threatened. When one counts in subspecies, not to mention individual populations, the total could increase to three to five times that number.' " Keith Shreiner, Associate Director and Endangered Species Program Manager of the U.S. Fish and Wildlife Service, quoted in a letter from A. J. Wagner, Chairman, TVA, to Chairman, House Committee on Merchant Marine and Fisheries, dated Apr. 25, 1977, quoted in Wood, On Protecting an Endangered Statute: The Endangered Species Act of 1973, 37 Federal B. J. 25, 27 (1978). 9 The Act does not define "critical habitat," but the Secretary of the Interior has administratively construed the term: " 'Critical habitat' means any air, land, or water area (exclusive of those existing man-made structures or settlements which are not necessary to the survival and recovery of a listed species) and constituent elements thereof, the loss of which would appreciably decrease the likelihood of the survival and recovery of a listed species or a distinct segment of its population. The constituent elements of critical habitat include, but are not limited to: physical structures and topography, biota, climate, human activity, and the quality and chemical content of land, water, and air. Critical habitat may represent any portion of the present habitat of a listed species and may include additional areas for reasonable population expansion." 43 Fed.Reg. 874 (1978) (to be codified as 50 CFR § 402.02). 10 Respondents are a regional association of biological scientists, a Tennessee conservation group, and individuals who are citizens or users of the Little Tennessee Valley area which would be affected by the Tellico Project. 11 The Act authorizes "interested person[s]" to petition the Secretary of the Interior to list a species as endangered. 16 U.S.C. § 1533(c)(2) (1976 ed.); see 5 U.S.C. § 553(e) (1976 ed.). 12 Searches by TVA in more than 60 watercourses have failed to find other populations of snail darters. App. 36, 410-412. The Secretary has noted that "more than 1,000 collections in recent years and additional earlier collections from central and east Tennessee have not revealed the presence of the snail darter outside the Little Tennessee River." 40 Fed.Reg. 47505 (1975). It is estimated, however, that the snail darter's range once extended throughout the upper main Tennessee River and the lower portions of its major tributaries above Chattanooga—all of which are now the sites of dam impoundments. See Hearings on Public Works for Water and Power Development and Energy Research Appropriation Bill, 1978, before a Subcommittee of the House Committee on Appropriations, 95th Cong., 1st Sess., pt. 4, pp. 240-241 (1977) (statement of witness for TVA); Hearings on Endangered Species Act Oversight, before the Subcommittee on Resource Protection of the Senate Committee on Environment and Public Works, 95th Cong., 1st Sess., 291 (1977); App. 139. 13 The Fish and Wildlife Service and Dr. Etnier have stated that it may take from 5 to 15 years for scientists to determine whether the snail darter can successfully survive and reproduce in this new environment. See General Accounting Office, The Tennessee Valley Authority's Tellico Dam Project—Costs, Alternatives, and Benefits 4 (Oct. 14, 1977). In expressing doubt over the long-term future of the Hiwassee transplant, the Secretary noted: "That the snail darter does not already inhabit the Hiwassee River, despite the fact that the fish has had access to it in the past, is a strong indication that there may be biological and other factors in this river that negate a successful transplant." 40 Fed.Reg. 47506 (1975). 14 TVA projects generally are authorized by the Authority itself and are funded—without the need for specific congressional authorization—from lump-sum appropriations provided in yearly budget grants. See 16 U.S.C. §§ 831c(j) and 831z (1976 ed.). 15 Section 11(g) allows "any person" to commence a civil action in a United States District Court to, inter alia, "enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision" of the Act "or regulation issued under the authority thereof . . . ." 16 The District Court made the following findings with respect to the dam's effect on the ecology of the snail darter: "The evidence introduced at trial showed that the snail darter requires for its survival a clear, gravel substrate, in a large-to-medium, flowing river. The snail darter has a fairly high requirement for oxygen and since it tends to exist in the bottom of the river, the flowing water provides the necessary oxygen at greater depths. Reservoirs, unlike flowing rivers, tend to have a low oxygen content at greater depths. "Reservoirs also tend to have more silt on the bottom than flowing rivers, and this factor, combined with the lower oxygen content, would make it highly probable that snail darter eggs would smother in such an environment. Furthermore, the adult snail darters would probably find this type of reservoir environment unsuitable for spawning. "Another factor that would tend to make a reservoir habitat unsuitable for snail darters is that their primary source of food, snails, probably would not survive in such an environment." 419 F.Supp. 753, 756 (ED Tenn. 1976). 17 The District Court findings are to the same effect and are unchallenged here. 18 In dissent, Mr. Justice POWELL argues that the meaning of "actions" in § 7 is "far from 'plain,' " and that "it seems evident that the 'actions' referred to are not all actions that an agency can ever take, but rather actions that the agency is deciding whether to authorize, to fund, or to carry out." Post, at 205. Aside from this bare assertion, however, no explanation is given to support the proffered interpretation. This recalls Lewis Carroll's class advice on the construction of language: " 'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean—neither more nor less.' " Through the Looking Glass, in The Complete Works of Lewis Carroll 196 (1939). Aside from being unexplicated, the dissent's reading of § 7 is flawed on several counts. First, under its view, the words "or carry out" in § 7 would be superfluous since all prospective actions of an agency remain to be "authorized" or "funded." Second, the dissent's position logically means that an agency would be obligated to comply with § 7 only when a project is in the planning stage. But if Congress had meant to so limit the Act, it surely would have used words to that effect, as it did in the National Environmental Policy Act, 42 U.S.C. §§ 4332(2)(A), (C). 19 The District Court determined that failure to complete the Tellico Dam would result in the loss of some $53 million in nonrecoverable obligations; see supra, at 166. Respondents dispute this figure, and point to a recent study by the General Accounting Office, which suggests that the figure could be considerably less. See GAO Study, n. 13, supra, at 5-14; see also Cook, Cook, & Gove, The Snail Darter & the Dam, 51 National Parks & Conservation Magazine 10 (1977); Conservation Foundation Letter 1-2 (Apr. 1978). The GAO study also concludes that TVA and Congress should explore alternatives to impoundment of the reservoir, such as the creation of a regional development program based on a free-flowing river. None of these considerations are relevant to our decision, however; they are properly addressed to the Executive and Congress. 20 Prior federal involvement with endangered species had been quite limited. For example, the Lacey Act of 1900, 31 Stat. 187, partially codified in 16 U.S.C. §§ 667e and 701 (1976), and the Black Bass Act of 1926, 16 U.S.C. § 851 et seq. (1976), prohibited the transportation in interstate commerce of fish or wildlife taken in violation of national, state, or foreign law. The effect of both of these statutes was constrained, however, by the fact that prior to passage of the Endangered Species Act of 1973, there were few laws regulating these creatures. See Coggins, Conserving Wildlife Resources: An Overview of the Endangered Species Act of 1973, 51 N.D.L.Rev. 315, 317-318 (1975). The Migratory Bird Treaty Act, passed in 1918, 40 Stat. 755, as amended, 16 U.S.C. § 703 et seq. (1976 ed.), was more extensive, giving the Secretary of the Interior power to adopt regulations for the protection of migratory birds. Other measures concentrated on establishing refuges for wildlife. See, e. g., Land and Water Conservation Fund Act of 1965, 78 Stat. 897, 16 U.S.C. § 460l-4 et seq. (1976 ed.). See generally Environmental Law Institute, The Evolution of National Wildlife Law (1977). 21 This approach to the problem of taking, of course, contained the same inherent limitations as the Lacey and Black Bass Acts, discussed, n. 20, supra. 22 Hearings on Endangered Species before a Subcommittee of the House Committee on Merchant Marine and Fisheries, 93d Cong., 1st Sess., 202 (1973) (statement of Assistant Secretary of the Interior) (hereinafter cited as 1973 House Hearings). 23 See, e. g., 1973 House Hearings 280 (statement of Rep. Roe); id., at 281 (statement of Rep. Whitehurst); id., at 301 (statement of Friends of the Earth); id., at 306-307 (statement of Defenders of Wildlife). One statement, made by the Assistant Secretary of the Interior, particularly deserves notice: "[I] have watched in my lifetime a vast array of mollusks in southern streams totally disappear as a result of damming, channelization, and pollution. It is often asked of me, 'what is the importance of the mollusks for example in Alabama.' I do not know, and I do not know whether any of us will ever have the insight to know exactly why these mollusks evolved over millions of years or what their importance is in the total ecosystem. However, I have great trouble bein party to their destruction without ever having gained such knowledge." Id., at 207. One member of the mollusk family existing in these southern rivers is the snail, see 12 Encyclopedia Britannica 326 (15th ed. 1974), which ironically enough provides the principal food for snail darters. See supra, at 162, 165-166, n. 16. 24 For provisions in the House bills, see § (d) of H.R. 37, 470, 471, 1511, 2669, 3696, and 3795; § 3(d) of H.R. 1461 and 4755; § 5(d) of H.R. 2735; § 3(d) of H.R. 4758. For provisions in the Senate bills, see § 3(d) of S. 1592; § 5(d) of S. 1983. The House bills are collected in 1973 House Hearings 87-185; the Senate bills are found in the Hearings on S. 1592 and S. 1983 before the Subcommittee on Environment of the Senate Committee on Commerce, 93d Cong., 1st Sess. 3-49 (1973). 25 A further indication of the comprehensive scope of the 1973 Act lies in Congress' inclusion of "threatened species" as a class deserving federal protection. Threatened species are defined as those which are "likely to become an endangered species within the foreseeable future throughout all or a significant portion of [their] range." 16 U.S.C. § 1532(15) (1976 ed.). 26 For provisions in the House bills, see §§ 2(c) and 5(d) of H.R. 37, 470, 471, 1511, 2669, 3310, 3696, and 3795; § 3(d) of H.R. 1461 and 4755; § 5(d) of H.R. 2735; § 2(b) of H.R. 4758; one other House bill, H.R. 2169, imposed no requirements on federal agencies. For provisions in the Senate bills, see § 2(b) of S. 1592; §§ 2(b) and 5(d) of S. 1983. 27 We note, however, that in the version of S. 1983 which was sent to the floor of the Senate by the Senate Committee on Commerce, the qualifying language "wherever practicable" had been omitted from one part of the bill, that being § 2(b). See 119 Cong.Rec. 25663 (1973). Section 2(b) was the portion of S. 1983 that stated the "purposes and policy" of Congress. But the Committee's version of S. 1983—which was reported to the full Senate—retained the limitation on § 7 that we note here. 119 Cong.Rec. 25664 (1973). 28 See id., at 30157-30162. 29 When confronted with a statute which is plain and unambiguous on its face, we ordinarily do not look to legislative history as a guide to its meaning. Ex parte Collett, 337 U.S. 55, 61, 69 S.Ct. 944, 947, 93 L.Ed. 1207 (1949), and cases cited therein. Here it is not necessary to look beyond the words of the statute. We have undertaken such an analysis only to meet Mr. Justice POWELL's suggestion that the "absurd" result reached in this case, post, at 196, is not in accord with congressional intent. 30 We do not understand how TVA intends to operate Tellico Dam without "harming" the snail darter. The Secretary of the Interior has defined the term "harm" to mean "an act or omission which actually injures or kills wildlife, including acts which annoy it to such an extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding or sheltering; significant environmental modification or degradation which has such effects is included within the meaning of 'harm.' " 50 CFR § 17.3 (1976) (emphasis added); see S.Rep.No.93-307, p. 7 (1973). 31 The only portion of the legislative history which petitioner cites as being favorable to its position consists of certain statements made by Senator Tunney on the floor of the Senate during debates on S. 1983; see 119 Cong.Rec. 25691-25692 (1973). Senator Tunney was asked whether the proposed bill would affect the Army Corps of Engineers' decision to build a road through a particular area of Kentucky. Responding to this question, Senator Tunney opined that § 7 of S. 1983 would require consultation among the agencies involved, but that the Corps of Engineers "would not be prohibited from building such a road if they deemed it necessary to do so." 119 Cong.Rec. 25689 (1973). Petitioner interprets these remarks to mean that an agency, after balancing the respective interests involved, could decide to take action which would extirpate an endangered species. If that is what Senator Tunney meant, his views are in distinct contrast to every other expression in the legislative history as to the meaning of § 7. For example, when the Kentucky example was brought up in the Senate hearings, an Administration spokesman interpreted an analogous provision in S. 1592 as "prohibit[ing] [a] federal agency from taking action which does jeopardize the status of endangered species." Supra, at 179. Moreover, we note that the version of S. 1983 being discussed by Senator Tunney contained the "as practicable" limitation in § 7(a) which we have previously mentioned. See supra, at 182. Senator Tunney's remarks perhaps explain why the Conference Committee subsequently deleted all such qualifying expressions. We construe the Senator's remarks as simply meaning that under the 1973 Act the agency responsible for the project would have the "final decision," 119 Cong.Rec. 25690 (1973), as to whether the action should proceed, notwithstanding contrary advice from the Secretary of the Interior. The Secretary's recourse would be to either appeal to higher authority in the administration, or proceed to federal court under the relevant provisions of the Act; citizens may likewise seek enforcement under 16 U.S.C. § 1540(g) (1976 ed.), as has been done in this case. 32 Mr. Justice POWELL characterizes the result reached here as giving "retroactive" effect to the Endangered Species Act of 1973. We cannot accept that contention. Our holding merely gives effect to the plain words of the statute, namely, that § 7 affects all projects which remain to be authorized, funded, or carried out. Indeed, under the Act there could be no "retroactive" application since, by definition, any prior action of a federal agency which would have come under the scope of the Act must have already resulted in the destruction of an endangered species or its critical habitat. In that circumstance the species would have already been extirpated or its habitat destroyed; the Act would then have no subject matter to which it might apply. 33 Mr. Justice POWELL's dissent places great reliance on Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892), post, at 204, to support his view of the 1973 Act's legislative history. This Court, however, later explained Holy Trinity as applying only in "rare and exceptional circumstances. . . . And there must be something to make plain the intent of Congress that the letter of the statute is not to prevail." Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50, 75 L.Ed. 156 (1930). As we have seen from our explication of the structure and history of the 1973 Act, there is nothing to support the assertion that the literal meaning of § 7 should not apply in this case. 34 Mr. Justice POWELL's dissent relies on cases decided under the National Environmental Policy Act to support its position that the 1973 Act should only apply to prospective actions of an agency. Post, at 205-206. The NEPA decisions, however, are completely inapposite. First, the two statutes serve different purposes. NEPA essentially imposes a procedural requirement on agencies, requiring them to engage in an extensive inquiry as to the effect of federal actions on the environment; by way of contrast, the 1973 Act is substantive in effect, designed to prevent the loss of any endangered species, regardless of the cost. Thus, it would make sense to hold NEPA inapplicable at some point in the life of a project, because the agency would no longer have a meaningful opportunity to weigh the benefits of the project versus the detrimental effects on the environment. Section 7, on the other hand, compels agencies not only to consider the effect of their projects on endangered species, but to take such actions as are necessary to insure that species are not extirpated as a result of federal activities. Second, even he NEPA cases have generally required agencies to file environmental impact statements when the remaining governmental action would be environmentally "significant." See, e. g., Environmental Defense Fund v. TVA, 468 F.2d 1164, 1177 (CA6 1972). Under § 7, the loss of any endangered species has been determined by Congress to be environmentally "significant." See supra, at 177-179. 35 The Appropriations Acts did not themselves identify the projects for which the sums had been appropriated; identification of these projects requires reference to the legislative history. See n. 14, supra. Thus, unless a Member scrutinized in detail the Committee proceedings concerning the appropriations, he would have no knowledge of the possible conflict between the continued funding and the Endangered Species Act. 1 Attorney General Bell advised us at oral argument that the dam had been completed, that all that remains is to "[c]lose the gate," and to complete the construction of "some roads and bridges." The "dam itself is finished. All the landscaping has been done . . . . [I]t is completed." Tr. of Oral Arg. 18. 2 Hearings on Public Works for Water and Power Development and Energy Research Appropriation Bill, 1977, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, p. 261 (1976). 3 Although the snail darter is a distinct species, it is hardly an extraordinary one. Even icthyologists familiar with the snail darter have difficulty distinguishing it from several related species. App. 107, 131. Moreover, new species of darters are discovered in Tennessee at the rate of about 1 a year; 8 to 10 have been discovered in the last five years. Id., at 131. All told, there are some 130 species of darters, 85 to 90 of which are found in Tennessee, 40 to 45 in the Tennessee River System, and 11 in the Little Tennessee itself. Id., at 38 n. 7, 130-131. 4 Hearings on Public Works for Water and Power Development and Energy Research Appropriations Bill, 1977, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, pp. 261-262 (1976); Hearings on Public Works for Water and Power Development and Energy Research Appropriations for Fiscal Year 1977, before a Subcommittee of the Senate Committee on Appropriations, 94th Cong., 2d Sess., pt. 4, pp. 3096-3099 (1976). 5 The Court of Appeals interpreted the District Court opinion as holding that TVA's continuation of the Tellico Project would violate the Act but that the requested injunction should be denied on equitable grounds. 549 F.2d 1064, 1069-1070 (CA6 1977). This interpretation of the District Court opinion appears untenable in light of that opinion's conclusion that the Act could "not be construed as preventing completion of the project," 419 F.Supp. 753, 755 n. 2 (1976) (emphasis added). Moreover, the District Court stated the issue in the case as whether "[it is] reasonable to conclude that Congress intended the Act to halt the Tellico Project at its present stage of completion." Id., at 760. It concluded that the "Act should be construed in a reasonable manner to effectuate the legislative purpose," ibid., and "that the Act does not operate in such a manner as to halt the completion of this particular project," id., at 763. From all this, together with the District Court's reliance on cases interpreting the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., as inapplicable to substantially completed projects, see 419 F.Supp., at 760-761, it seems clear that District Judge Taylor correctly interpreted § 7 as inapplicable to the Tellico Project. 6 The District Court found that $53 million out of more than $78 million then expended on the Project would be unrecoverable if completion of the dam were enjoined. 419 F.Supp., at 760. As more than $110 million has now been spent on the Project, it seems probable that abandonment of the dam would entail an even greater waste of tax dollars. 7 S.Rep.No.94-960, p. 96 (1976). 8 S.Rep.No.95-301, p. 99 (1977). 9 H.R.Rep.No.95-379, p. 104 (1977). 10 See Frank, Words and Music: some Remarks on Statutory Interpretation, 47 Colum.L.Rev. 1259, 1263 (1947); Hand, The Speech of Justice, 29 Harv.L.Rev. 617, 620 (1916). 11 The purpose of this Act is admirable. Protection of endangered species long has been neglected. This unfortunate litigation—wasteful for taxpayers and likely in the end to be counterproductive in terms of respondents' purpose—may have been invited by careless draftsmanship of otherwise meritorious legislation. 12 Ante, at 184-188. At oral argument, respondents clearly stated this as their view of § 7: "QUESTION: . . . Do you think—it is still your position, as I understand it, that this Act, Section 7, applies to completed projects? I know you don't think it occurs very often that there'll be a need to apply it. But does it apply of the need exists? "MR. PLATER: To the continuation— "QUESTION: To completed projects. Take the Grand Coulee dam— "MR. PLATER: Right. Your Honor, if there were a species there— * * * * * "—it wouldn't be endangered by the dam. "QUESTION: I know that's your view. I'm asking you not to project your imagination— "MR. PLATER: I see, your Honor. "QUESTION: —beyond accepting my assumption. "MR. PLATER: Right. "QUESTION: And that was that an endangered species might turn up at Grand Coulee. Does Section 7 apply to it? "MR. PLATER: I believe it would, Your Honor. The Secretary of the Interior— "QUESTION: That answers my question. "MR. PLATER: Yes, it would." Tr. of Oral Arg. 57-58. 13 Under the Court's interpretation, the prospects for such disasters are breathtaking indeed, since there are hundreds of thousands of candidates for the endangered list: " 'The act covers every animal and plant species, subspecies, and population in the world needing protection. There are approximately 1.4 million full species of animals and 600,000 full species of plants in the world. Various authorities calculate as many as 10% of them—some 200,000—may need to be listed as Endangered or Threatened. When one counts in subspecies, not to mention individual populations, the total could increase to three to five times that number.' " Keith Shreiner, Associate Director and Endangered Species Program Manager of the U. S. Fish and Wildlife Service, quoted in a letter from A. J. Wagner, Chairman, TVA, to Chairman, House Committee on Merchant Marine and Fisheries, dated Apr. 25, 1977, quoted in Wood, On Protecting an Endangered Statute: The Endangered Species Act of 1973, 37 Federal B. J. 25, 27 (1978). 14 Accord, e. g., United States v. American Trucking Assns., 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940); Armstrong Co. v. Nu-Enamel Corp., 305 U.S. 315, 333, 59 S.Ct. 191, 200, 83 L.Ed. 195 (1938); Sorrells v. United States, 287 U.S. 435, 446-448, 53 S.Ct. 210, 214, 215, 77 L.Ed. 413 (1932) (collecting cases); United States v. Ryan, 284 U.S. 167, 175, 52 S.Ct. 65, 68, 76 L.Ed. 224 (1931). The Court suggests, ante, at 187 n. 33, that the precept stated in Church of the Holy Trinity was somehow undermined in Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50, 75 L.Ed. 156 (1930). Only a year after the decision in Crooks, however, the Court declared that a "literal application of a statute which would lead to absurd consequences is to be avoided whenever a reasonable application can be given which is consistent with the legislative purpose." Ryan, supra, 284 U.S., at 175, 52 S.Ct., at 68. In the following year, the Court expressly relied upon Church of the Holy Trinity on this very point. Sorrells, supra, 287 U.S., at 448, 53 S.Ct., at 215. The real difference between the Court and myself on this issue arises from our perceptions of the character of today's result. The Court professes to find nothing particularly remarkable about the result produced by its decision in this case. Because I view it as remarkable indeed, and because I can find no hint that Congress actually intended it, see infra, at 207-210, I am led to conclude that the congressional words cannot be given the meaning ascribed to them by the Court. 15 Landis, A Note on "Statutory Interpretation," 43 Harv.L.Rev. 886 (1930). 16 The quotations from the legislative history relied upon by the Court are reasonably viewed as demonstrating that Congress was thinking about agency action in prospective situations, rather than actions requiring abandonment of completed projects. For example, the Court quotes Representative Dingell's statement as a highly pertinent interpretation of what the Conference bill intended. In the statement relied upon, ante, at 183-184, Representative Dingell said that Air Force bombing activities along the gulf coast of Texas, if found to endanger whooping cranes, would have to be discontinued. With respect to grizzly bears, he noted that they may or may not be endangered, but under the Act it will be necessary "to take action to see . . . that these bears are not driven to extinction." The Court also predicates its holding as to legislative intent upon the provision in the Act that instructs federal agencies not to "take" endangered species, meaning that no one is "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect" such life forms. Ante, at 184-185. The Court quotes, ante, at 184-185, n. 30, the Secretary of the Interior's definition of the term "harm" to mean—among other things—any act which "annoy[s wild life] to such an extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding or sheltering; significant environmental modification or degradation which has such effects is included within the meaning of 'harm.' " 50 CFR § 17.3 (1976). Two observations are pertinent. First, the reach of this regulation—which the Court accepts as authorized by the Act—is virtually limitless. All one would have to find is that the "essential behavioral patterns" of any living species as to breeding, feeding, or sheltering are significantly disrupted by the operation of an existing project. I cannot believe that Congress would have gone this far to imperil every federal project, however important, on behalf of any living species however unimportant, without a clear declaration of that intention. The more rational interpretation is consistent with Representative Dingell's obvious thinking: The Act is addressed to prospective action where reasonable options exist; no thought was given to abandonment of completed projects. 17 The Senate sponsor of the bill, Senator Tunney, apparently thought that the Act was merely precatory and would not withdraw from the agency the final decision on completion of the project: "[A]s I understand it, after the consultation process took place, the Bureau of Public Roads, or the Corps of Engineers, would not be prohibited from building a road if they deemed it necessary to do so. "[A]s I read the language, there has to be consultation. However, the Bureau of Public Roads or any other agency would have the final decision as to whether such a road should be built. That is my interpretation of the legislation at any rate." 119 Cong. Rec. 25689-25690 (1973). See also Sierra Club v. Froehlke, 534 F.2d 1289, 1303-1304 (CA8 1976). 18 The initial proposed rulemaking under the Act made it quite clear that such an interpretation was not intended: "Neither [the Fish and Wildlife Service of the Department of the Interior] nor [the National Marine Fisheries Service of the Department of Commerce] intends that section 7 bring about the waste that can occur if an advanced project is halted. . . . The affected agency must decide whether the degree of completion and extent of public funding of particular projects justify an action that may be otherwise inconsistent with section 7." 42 Fed.Reg. 4869 (1977). After the decision of the Court of Appeals in this case, however, the quoted language was withdrawn, and the agencies adopted the view of the court. 43 Fed.Reg. 870, 872, 875 (1978). 19 The Court acknowledges, as it must, that the permanent injunction it grants today will require "the sacrifice of the anticipated benefits of the project and of many millions of dollars in public funds." Ante, at 174.

78

437 U.S. 267 98 S.Ct. 2340 57 L.Ed.2d 197 MOORMAN MANUFACTURING COMPANY, Appellant,v.G. D. BAIR, etc. No. 77-454. Argued March 21, 1978. Decided June 15, 1978. Rehearing Denied Oct. 2, 1978. See 439 U.S. 885, 99 S.Ct. 233. Syllabus An Iowa statute prescribes a so-called single-factor sales formula for apportioning an interstate corporation's income for state income tax purposes. Under this formula, the part of income from such a corporation's sale of tangible personal property attributable to business within the State and hence subject to the state income tax is deemed to be in that proportion which the corporation's gross sales made within the State bear to its total gross sales. Appellant, an Illinois corporation that sells animal feed it manufactures in Illinois to Iowa customers through Iowa salesmen and warehouses, brought an action in an Iowa court challenging the constitutionality of the single-factor form la. The trial court held the formula invalid under the Due Process Clause of the Fourteenth Amendment and the Commerce Clause, but the Iowa Supreme Court reversed. Held : 1. Iowa's single-factor formula is not invalid under the Due Process Clause. Pp. 271-275. (a) Any assumption that at least some portion of appellant's income from Iowa sales was generated by Illinois activities is too speculative to support a claim that Iowa in fact taxed profits not attributable to activities within the State. P. 272. (b) An apportionment formula, such as the single-factor formula, that is necessarily employed as a rough approximation of a corporation's income reasonably related to the activities conducted within the taxing State will only be disturbed when the taxpayer has proved by "clear and cogent evidence" that the income attributed to the State is in fact "out of all reasonable proportion to the business transacted . . . in that State," Hans Rees' Sons v. North Carolina ex rel. Maxwell, 283 U.S. 123, 135, 51 S.Ct. 385, 389, 75 L.Ed. 879 or has "led to a grossly distorted result," Norfolk & western R. Co. v. State Tax Comm'n, 390 U.S. 317, 326, 88 S.Ct. 995, 1001, 19 L.Ed.2d 1201. Here, the Iowa statute afforded appellant an opportunity to demonstrate that the single-factor formula produced an arbitrary result in its case, but the record contains no such showing. Pp. 272-275. 2. Nor is Iowa's single-factor formula invalid under the Commerce Clause. Pp. 276-281. (a) On this record, the existence of duplicative taxation as between Iowa and Illinois (which uses the so-called three-factor property, payroll, and sales—formula) is speculative, but even assuming some overlap, appellant's argument that Iowa, rather than Illinois, was necessarily at fault in a constitutional sense cannot be accepted. Where the record does not reveal the sources of appellant's profits, its Commerce Clause claim cannot rest on the premise that profits earned in Illinois were included in its Iowa taxable income and therefore the Iowa formula was at fault for whatever overlap may have existed. Pp. 276-277. (b) The Commerce Clause itself, without implementing legislation by Congress, does not require, as appellant urges, that Iowa compute corporate net income under the Illinois three-factor formula. If the Constitution were read to mandate a prohibition against any overlap in the computation of taxable income by the States, the consequences would extend far beyond this particular case and would require extensive judicial lawmaking. Pp. 277-281. 254 N.W.2d 737, affirmed. Donald K. Barnes, Detroit, Mich., for appellant. Harry M. Griger, Des Moines, Iowa, for appellee. Mr. Justice STEVENS delivered the opinion of the Court. 1 The question in this case is whether the single-factor sales formula employed by Iowa to apportion the income of an interstate business for income tax purposes is prohibited by the Federal Constitution. 2 * Appellant, Moorman Manufacturing Co., is an Illinois corporation engaged in the manufacture and sale of animal feeds. Although the products it sells to Iowa customers are manufactured in Illinois, appellant has over 500 salesmen in Iowa and it owns six warehouses in the State from which deliveries are made to Iowa customers. Iowa sales account for about 20% of appellant's total sales. 3 Corporations, both foreign and domestic, doing business in Iowa are subject to the State's income tax. The taxable income for federal income tax purposes, with certain adjustments, is treated as the corporation's "net income" under the Iowa statute. If a corporation's business is not conducted entirely within Iowa, the statute imposes a tax only on the portion of its income "reasonably attributable" to the business within the State. 4 There are essentially two steps in computing the share of a corporation's income "reasonably attributable" to Iowa. First, certain income, "the geographical source of which is easily identifiable," is attributed entirely to a particular State.1 Second, if the remaining income is derived from the manufacture or sale of tangible personal property, "the part thereof attributable to business within the state shall be in that proportion which the gross sales made within the state bear to the total gross sales."2 This is the single-factor formula that appellant challenges in this case. 5 If the taxpayer believes that application of this formula subjects it to taxation on a greater portion of its net income than is "reasonably attributable" to business within the State, it may file a statement of objections and submit an alternative method of apportionment. If the evidence submitted by the taxpayer persuades the Director of Revenue that the statute is "inapplicable and inequitable" as applied to it, he may recalculate the corporation's taxable income. 6 During the fiscal years 1949 through 1960, the State Tax Commission allowed appellant to compute its Iowa income on the basis of a formula consisting of three, equally weighted factors property, payroll, and sales—rather than the formula prescribed by statute.3 For the fiscal years 1961 through 1964, appellant complied with a directive of the State Tax Commission to compute its income in accordance with the statutory formula. Since 1965, however, appellant has resorted to the three-factor formula without the consent of the commission. 7 In 1974, the Iowa Director of Revenue revised appellant's tax assessment for the fiscal years 1968 through 1972. This assessment was based on the statutory formula, which produced a higher percentage of taxable income than appellant, using the three-factor formula, had reported on its return in each of the disputed years.4 The higher percentages, of course produced a correspondingly greater tax obligation for those years.5 8 After the Tax Commission had rejected Moorman's appeal from the revised assessment, appellant challenged the constitutio ality of the single-factor formula in the Iowa District Court for Polk County. That court held the formula invalid under the Due Process Clause of the Fourteenth Amendment and the Commerce Clause. The Supreme Court of Iowa reversed, holding that an apportionment formula that is necessarily only a rough approximation of the income properly attributable to the taxing State is not subject to constitutional attack unless the taxpayer proves that the formula has produced an income attribution "out of all proportion to the business transacted" within the State. The court concluded that appellant had not made such a showing. 9 We noted probable jurisdiction of Moorman's appeal, 434 U.S. 953, 98 S.Ct. 478, 54 L.Ed.2d 311 and now affirm. II 10 Appellant contends that Iowa's single-factor formula results in extraterritorial taxation in violation of the Due Process Clause. This argument rests on two premises: first, that appellant's Illinois operations were responsible for some of the profits generated by sales in Iowa; and, second, that a formula that reaches any income not in fact earned within the borders of the taxing State violates due process. The first premise is speculative and the second is foreclosed by prior decisions of this Court. 11 Appellant does not suggest that it has shown that a significant portion of the income attributed to Iowa in fact was generated by its Illinois operations; the record does not contain any separate accounting analysis showing what portion of appellant's profits was attributable to sales, to manufacturing, or to any other phase of the company's operations. But appellant contends that we should proceed on the assumption that at least some portion of the income from Iowa sales was generated by Illinois activities. 12 Whatever merit such an assumption might have from the standpoint of economic theory or legislative policy, it cannot support a claim in this litigation that Iowa in fact taxed profits not attributable to activities within the State during the years 1968 through 1972. For all this record reveals, appellant's manufacturing operations in Illinois were only marginally profitable during those years and the high-volume sales to Iowa customers from Iowa warehouses were responsible for the lion's share of the income generated by those sales. Indeed, a separate accounting analysis might have revealed that losses in Illinois operations prevented appellant from earning more income from exploitation of a highly favorable Iowa market. Yet even were we to assume that the Illinois activities made some contribution to the profitability of the Iowa sales, appellant's claim that the Constitution invalidates an apportionment formula whenever it may result in taxation of some income that did not have its source in the taxing State is incorrect. 13 The Due Process Clause places two restrictions on a State's power to tax income generated by the activities of an interstate business. First, no tax may be imposed, unless there is some minimal connection between those activities and the taxing State. National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753, 756, 87 S.Ct. 1389, 1390, 18 L.Ed.2d 505. This requirement was plainly satisfied here. Second, the income attributed to the State for tax purposes must be rationally related to "values connected with the taxing State." Norfolk & Western R. Co. v. State Tax Comm'n, 390 U.S. 317, 325, 88 S.Ct. 995, 1001, 19 L.Ed.2d 1201. 14 Since 1934 Iowa has used the formula method of computing taxable income. This method, unlike separate accounting, does not purport to identify the precise geographical source of a corporation's profits; rather, it is employed as a rough approximation of a corporation's income that is reasonably related to the activities conducted within the taxing State. The single-factor formula used by Iowa, therefore, generally will not produce a figure that represents the actual profits earned within the State. But the same is true of the Illinois three-factor formula. Both will occasionally over-reflect or under-reflect income attributable to the taxing State. Yet despite this imprecision, the Court has refused to impose strict constitutional restraints on a State's selection of a particular formula.6 15 Thus, we have repeatedly held that a single-factor formula is presumptively valid. In Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 41 S.Ct. 45, 65 L.Ed. 165, for example, the taxpayer challenged Connecticut's use of such a formula to apportion its net income. Underwood's manufacturing operations were conducted entirely within Connecticut. Its main office, however was in New York City and it had branch offices in many States where its typewriters were sold and repaired. Applying a single-factor property formula, Connecticut taxed 47% of the company's net income. Claiming that 97% of its profits were generated by transactions in tangible personal property outside Connecticut, Underwood contended that the formula taxed "income arising from business conducted beyond the boundaries of the State" in violation of the Due Process Clause. Id., at 120, 41 S.Ct., at 46. 16 Rejecting this claim, the Court noted that Connecticut "adopted a method of apportionment which, for all that appears in this record, reached, and was meant to reach, only the profits earned within the State," id., at 121, 41 S.Ct., at 47, and held that the taxpayer had failed to carry its burden of proving that "the method of apportionment adopted by the state was inherently arbitrary, or that its application to this corporation produced an unreasonable result." Ibid. (footnote omitted).7 17 In individual cases, it is true, the Court has found that the application of a single-factor formula to a particular taxpayer violated due process. See Hans Rees' Sons, Inc. v. North Carolina ex rel. Maxwell, 283 U.S. 123, 51 S.Ct. 385, 75 L.Ed. 879; Norfolk & Western R. Co. v. State Tax Comm'n, supra. In Hans Rees', for example, the Court concluded that proof that the formula produced a tax on 83% of the taxpayer's income when only 17% of that income actually had its source in the State would suffice to invalidate the assessment under the Due Process Clause. But in neither Hans Rees' nor Norfolk & Western did the Court depart from the basic principles that the States have wide latitude in the selection of apportionment formulas and that a formula-produced assessment will only be disturbed when the taxpayer has proved by "clear and cogent evidence" that the income attributed to the State is in fact "out of all appropriate proportion to the business transacted . . . in that State," 283 U.S., at 135, 51 S.Ct., at 389, or has "led to a grossly distorted result," 390 U.S., at 326, 88 S.Ct., at 1002. 18 General Motors Corp. v. District of Columbia, 380 U.S. 553, 85 S.Ct. 1156, 14 L.Ed.2d 68 on which appellant relies, does not suggest a contrary result. In that case the Court held that a regulation prescribing a single-factor sales formula was not authorized by the District of Columbia Code. It concluded that the formula violated the statutory requirement that the net income of a corporation doing business both inside and outside the District must be deemed to arise from "sources" both inside and outside the District. But that statutory requirement has no counterpart in the Constitution, and the Court in General Motors made clear that it did "not mean to take any position on the constitutionality of a state income ax based on the sales factor alone." Id., at 561, 85 S.Ct., at 1161.8 19 The Iowa statute afforded appellant an opportunity to demonstrate that the single-factor formula produced an arbitrary result in its case. But this record contains no such showing and therefore the Director's assessment is not subject to challenge under the Due Process Clause.9 III 20 Appellant also contends that during the relevant years Iowa and Illinois imposed a tax on a portion of the income derived from the Iowa sales that was also taxed by the other State in violation of the Commerce Clause.10 Since most States use the three-factor formula that Illinois adopted in 1970, appellant argues that Iowa's longstanding single-factor formula must be held responsible for the alleged duplication and declared unconstitutional. We cannot agree. 21 In the first place, this record does not establish the essential factual predicate for a claim of duplicative taxation. Appellant's net income during the years in question was approximately $9 million. Since appellant did not prove the portion derived from sales to Iowa customers, rather than sales to customers in other States, we do not know whether Illinois and Iowa together imposed a tax on more than 100% of the relevant net income. The income figure that appellant contends was subject to duplicative taxation was computed by comparing gross sales in Iowa to total gross sales. As already noted, however, this figure does not represent actual profits earned from Iowa sales. Obviously, all sales are not equally profitable. Sales in Iowa, although only 20% of gross sales, may have yielded a much higher percentage of appellant's profits. Thus, profits from Iowa sales may well have exceeded the $2.5 million figure that appellant contends was taxed by the two States. If so, there was no duplicative taxation of the net income generated by Iowa sales. In any event, on this record its existence is speculative.11 22 Even assuming some overlap, we could not accept appellant's argument that Iowa, rather than Illinois, was necessarily at fault in a constitutional sense. It is, of course, true that if Iowa had used Illinois' three-factor formula, a risk of duplication in the figures computed by the two States might have been avoided. But the same would be true had Illinois used the Iowa formula. Since the record does not reveal the sources of appellant's profits, its Commerce Clause claim cannot rest on the premise that profits earned in Illinois were included in its Iowa taxable income and therefore the Iowa formula was at fault for whatever overlap may have existed. Rather, the claim must be that even if the presumptively valid Iowa formula yielded no profits other than those properly attributable to appellant's activities within Iowa, the importance of avoiding any risk of duplication in the taxable income of an interstate concern justifies invalidation of the Iowa statute. 23 Appellant contends that, to the extent this overlap is permitted, the corporation that does business in more than one State shoulders a tax burden not shared by those operating entirely within a State.12 To alleviate the burden, appellant invites us to hold that the Commerce Clause itself, without implementing legislation by Congress, requires Iowa to compute corporate net income under the Illinois equally weighted, three-factor formula. For the reasons that follow, we hold that the Constitution does not require such a result. 24 The only conceivable constitutional basis for invalidating the Iowa statute would be that the Commerce Clause prohibits any overlap in the computation of taxable income by the States. If the Constitution were read to mandate such precision in interstate taxation, the consequences would extend far beyond this particular case. For some risk of duplicative taxation exists whenever the States in which a corporation does business do not follow identical rules for the division of income. Accepting appellant's view of the Constitution, therefore, would require extensive judicial lawmaking. Its logic is not limited to a prohibition on use of a single-factor apportionment formula. The asserted constitutional flaw in that formula is that it is different from that presently employed by a majority of States and that difference creates a risk of duplicative taxation. But a host of other division-of-income problems create precisely the same risk and would similarly rise to constitutional proportions. 25 Thus, it would be necessary for this Court to prescribe a uniform definition of each category in the three-factor formula. For if the States in which a corporation does business have different rules regarding where a "sale" takes place, and each includes the same sale in its three-factor computation of the corporation's income, there will be duplicative taxation despite the apparent identity of the formulas emp oyed.13 A similar risk of multiple taxation is created by the diversity among the States in the attribution of "nonbusiness" income, generally defined as that portion of a taxpayer's income that does not arise from activities in the regular course of its business.14 Some States do not distinguish between business and nonbusiness income for apportionment purposes. Other States, however, have adopted special rules that attribute nonbusiness income to specific locations. Moreover, even among the latter, there is diversity in the definition of nonbusiness income and in the designation of the locations to which it is deemed attributable. The potential for attribution of the same income to more than one State is plain.15 26 The prevention of duplicative taxation, therefore, would require national uniform rules for the division of income. Although the adoption of a uniform code would undeniably advance the policies that underlie the Commerce Clause, it would require a policy decision based on political and economic considerations that vary from State to State. The Constitution, however, is neutral with respect to the content of any uniform rule. If division-of-income problems were to be constitutionalized, therefore, they would have to be resolved in the manner suggested by appellant for resolution of formula diversity—the prevalent practice would be endorsed as the constitutional rule. This rule would at best be an amalgam of independent state decisions, based on considerations unique to each State. Of most importance, it could not reflect the national interest, because the interests of those States whose policies are subordinated in the quest for uniformity would be excluded from the calculation.16 27 While the freedom of the States to formulate independent policy in this area may have to yield to an overriding national interest in uniformity, the content of any uniform rules to which they must subscribe should be determined only after due consideration is given to the interests of all affected States. It is clear that the legislative power granted to Congress by the Commerce Clause of the Constitution would amply justify the enactment of legislation requiring all States to adhere to uniform rules for the division of income. It is to that body, and not this Court, that the Constitution has committed such policy decisions. 28 Finally, it would be an exercise in formalism to declare appellant's income tax assessment unconstitutional based on speculative concerns with multiple taxation. For it is evident that appellant would have had no basis for complaint if, instead of an income tax, Iowa had imposed a more burdensome gross-receipts tax o the gross receipts from sales to Iowa customers. In Standard Pressed Steel Co. v. Washington Revenue Dept., 419 U.S. 560, 95 S.Ct. 706, 42 L.Ed.2d 719, the Court sustained a tax on the entire gross receipts from sales made by the taxpayer into Washington State. Because receipts from sales made to States other than Washington were not included in Standard Pressed Steel's taxable gross receipts, the Court concluded that the tax was " 'apportioned exactly to the activities taxed.' " Id., at 564, 95 S.Ct. at 709. 29 In this case appellant's actual income tax obligation was the rough equivalent of a 1% tax on the entire gross receipts from its Iowa sales. Thus, the actual burden on interstate commerce would have been the same had Iowa imposed a plainly valid gross-receipts tax instead of the challenged income tax. Of more significance, the gross-receipts tax sustained in Standard Pressed Steel and General Motors Corp. v. Washington, 377 U.S. 436, 84 S.Ct. 1564, 12 L.Ed.2d 430, is inherently more burdensome than the Iowa income tax. It applies whether or not the interstate concern is profitable and its imposition may make the difference between profit and loss. In contrast, the income tax is only imposed on enterprises showing a profit and the tax obligation is not heavy unless the profits are high. 30 Accordingly, until Congress prescribes a different rule, Iowa is not constitutionally prohibited from requiring taxpayers to prove that application of the single-factor formula has produced arbitrary results in a particular case. 31 The judgment of the Iowa Supreme Court is affirmed. 32 So ordered. 33 Mr. Justice BRENNAN, dissenting. 34 I agree with the Court that, for purposes of constitutional review, there is no distinction between a corporate income tax and a gross-receipts tax. I do not agree, however, that Iowa's single-factor sales apportionment formula meets the Commerce Clause requirement that a State's taxation of interstate business must be "fairly apportioned to the commerce carried on within the taxing state." Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 256, 58 S.Ct. 546, 549, 82 L.Ed. 823 (1938). As I have previously explained: 35 "[Where a sale] exhibits significant contacts with more than one State . . . it is the commercial activity within the State, and not the sales volume, which determines the State's power to tax, and by which the tax must be apportioned. While the ratio of in-state to out-of-state sales is often taken into account as one factor among others in apportioning a firm's total net income, see, e. g., the description of the 'Massachusetts Formula' in Note, 75 Harv.L.Rev. 953, 1011 (1962), it nevertheless remains true that if commercial activity in more than one State results in a sale in one of them, that State may not claim as all its own the gross receipts to which the activity within its borders has contributed only a part. Such a tax must be apportioned to reflect the business activity within the taxing State." General Motors Corp. v. Washington, 377 U.S. 436, 450-451, 84 S.Ct. 1564, 1573, 12 L.Ed.2d 430 (1964) (dissenting opinion). 36 I would therefore reverse. 37 Mr. Justice BLACKMUN, dissenting. 38 The unspoken, but obvious, premise of the majority opinion is the fear that a Commerce Clause invalidation of Iowa's single-factor sales formula will lead the Court into problems and difficulties in other cases yet to come. I reject that premise. 39 I agree generally with the content of Mr. Justice POWELL'S opinion in dissent. I join that opinion because I, too, feel that the Court has a duty to resolve, not to avoid, these problems of "delicate adjustment," Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318, 329, 97 S.Ct. 599, 606, 50 L.Ed.2d 514 (1977), and because the opinion well demonstrates that Iowa's now anachronistic single-factor sales formula runs headlong into overriding Commerce Clause considerations and demands. 40 Today's decision § bound to be regressive.1 Single-factor formulas are relics of the early days of state income taxation.2 The three-factor formulas were inevitable improvements and, while not perfect, reflect more accurately the realities of the business and tax world. With their almost universal adoption by the States, the Iowa system's adverse and parochial im pact on commerce comes vividly into focus. But with its single-factor formula now upheld by the Court, there is little reason why other States, perceiving or imagining a similar advantage to local interests, may not go back to the old ways. The end result, in any event, is to exacerbate what the Commerce Clause, absent governing congressional action, was devised to avoid. 41 Mr. Justice POWELL, with whom Mr. Justice BLACKMUN joins, dissenting. 42 It is the duty of this Court "to make the delicate adjustment between the national interest in free and open trade and the legitimate interest of the individual States in exercising their taxing powers." Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318, 329, 97 S.Ct. 599, 606, 50 L.Ed.2d 514 (1977). This duty must be performed with careful attention to the settings of particular cases and consideration of their special facts. See Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 447-448 n. 25, 98 S.Ct. 787, 797, 54 L.Ed.2d 664 (1978). Consideration of all the circumstances of this case leads me to conclude that Iowa's use of a single-factor sales formula to apportion the net income of multistate corporations results in the imposition of "a tax which discriminates against interstate commerce . . . by providing a direct commercial advantage to local business." Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 458, 79 S.Ct. 357, 362, 3 L.Ed.2d 421 (1959). I therefore dissent. 43 * Iowa's use of a single-factor sales-apportionment formula though facially neutral—operates as a tariff on goods manufactured in other States (including the District of Columbia), and as a subsidy to Iowa manufacturers selling their goods outside of Iowa. Because 44 of the 45 other States which impose corporate income taxes use a three-factor formula involving property, payroll, and sales,1 Iowa's practice insures that outof-state businesses selling in Iowa will have higher total tax payments than local businesses. This result follows from the fact that Iowa attributes to itself all of the income derived from sales in Iowa, while other taxing States—using the three-factor formula—are also taxing some portion of the same income through attribution to property or payroll in those States. 44 This surcharge on Iowa sales increases to the extent that a business' plant and labor force are located outside Iowa. It can be avoided altogether only by locating all property and pay oll in Iowa; an Iowa manufacturer selling only in Iowa will never have any portion of its income attributed to any other State. And to the extent that an Iowa manufacturer makes its sales in States other than Iowa, its overall state tax liability will be reduced. Assuming comparable tax rates, its liability to other States, in which sales constitute only one-third of the apportionment formula, will be far less than the amount it would have owed with a comparable volume of sales in Iowa, where sales are the exclusive mode of apportioning income. The effect of Iowa's formula, then, is to penalize out-of-state manufacturers for selling in Iowa and to subsidize Iowa manufacturers for selling in other States.2 45 This appeal requires us to determine whether these economic effects of the Iowa apportionment formula violate either the Due Process Clause or the Commerce Clause. I now turn to those questions. II 46 For the reasons given by the Court, ante, at 271-275, I agree that application of Iowa's formula does not violate the Due Process Clause. The decisions of this Court m ke it clear that arithmetical perfection is not to be expected from apportionment formulae. International Harvester Co. v. Evatt, 329 U.S. 416, 67 S.Ct. 444, 91 L.Ed. 390 (1947). It has been said that the "apportionment theory is a mongrel one, a cross between desire not to interfere with state taxation and desire at the same time not utterly to crush out interstate commerce." Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 306, 64 S.Ct. 950, 957, 88 L.Ed. 1283 (1944) (Jackson, J., concurring). It owes its existence to the fact that with respect to a business earning income through a series of transactions beginning with manufacturing in one State and ending with a sale in another, a precise—or even wholly logical—determination of the State in which any specific portion of the income was earned is impossible. Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 120-121, 41 S.Ct. 45, 46-47, 65 L.Ed. 165 (1920). 47 Hence, the fact that a particular formula—like the one at issue here—may permit a State to tax some income actually "located" in another State is not in and of itself a basis for finding a due process violation.3 Were it otherwise, any formula deviating in the smallest detail from that used in other States would be invalid. Because there is no ideal means of "locating" any State's rightful share, such uniformity cannot be dictated by this Court. Hence, the decisions of this Court properly require the taxpayer claiming a due process violation to show that the apportionment is "out of all appropriate proportion to the business transacted." Hans Rees' Sons, Inc. v. North Carolina ex rel. Maxwell, 283 U.S. 123, 135, 51 S.Ct. 385, 389, 75 L.Ed.2d 879 (1931). As appellant has failed to make any such showing, I agree with the Court that no due process violation has been made out here. 48 This conclusion does not ipso facto mean that Commerce Clause strictures are satisfied as well. This Court's decisions dealing with state levies that discriminate against out-of-state business, as Iowa's formula does, compel a more detailed inquiry. III A. 49 It is a basic principle of Commerce Clause jurisprudence that "[n]either the power to tax nor the police power may be used by the state of destination with the aim and effect of establishing an economic barrier against competition with the products of another state or the labor of the residents." Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 527, 55 S.Ct. 497, 502, 79 L.Ed. 1032 (1935); accord, H. P. Hood & Sons v. Du Mond, 336 U.S. 525, 532, 69 S.Ct. 657, 662, 93 L.Ed. 865 (1949); Boston Stock Exchange, 429 U.S., at 335-336, and n. 14, 97 S.Ct., at 610. Those barriers would constitute "an unreasonable clog upon the mobility of comme ce." Baldwin, supra, 294 U.S., at 527, 55 S.Ct., at 502. 50 One form of such unreasonable restrictions is "discriminating State legislation." Welton v. Missouri, 91 U.S. 275, 280, 23 L.Ed. 347 (1876). This Court consistently has struck down state and local taxes which unjustifiably benefit local businesses at the expense of out-of-state businesses. Ibid.; accord, Boston Stock Exchange; Halliburton Oil Well Co. v. Reily, 373 U.S. 64, 83 S.Ct. 1201, 10 L.Ed.2d 202 (1963); Nippert v. Richmond, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760 (1946); Hale v. Bimco Trading, Inc., 306 U.S. 375, 59 S.Ct. 526, 83 L.Ed. 771 (1939); I. M. Darnell & Son v. Memphis, 208 U.S. 113, 28 S.Ct. 247, 52 L.Ed. 413 (1908); Guy v. Baltimore, 100 U.S. 434, 25 L.Ed. 743 (1880). 51 This ban applies not only to state levies that by their terms are limited to products of out-of-state business, or which explicitly tax out-of-state sellers at higher rates than local sellers. It also reaches those taxes that "in their practical operation [work] discriminatorily against interstate commerce to impose upon it a burden, either in fact or by the very threat of its incidence." Nippert v. Richmond, supra, 327 U.S., at 425, 66 S.Ct., at 590. For example, this Court has invalidated a facially neutral fixed-fee license tax collected from all local and out-of-state "drummers," where it appeared the tax fell far more heavily upon out-of-state businesses, since local businesses had little or no occasion to solicit sales in that manner. Robbins v. Shelby County Taxing District, 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694 (1887). See also West Point Wholesale Grocery Co. v. Opelika, 354 U.S. 390, 77 S.Ct. 1096, 1 L.Ed.2d 1420 (1957); Memphis Steam Laundry Cleaner, Inc. v. Stone, 342 U.S. 389, 72 S.Ct. 424, 96 L.Ed. 436 (1952); Best & Co. v. Maxwell, 311 U.S. 454, 61 S.Ct. 334, 85 L.Ed. 275 (1940); Real Silk Hosiery Mills v. Portland, 268 U.S. 325, 45 S.Ct. 525, 69 L.Ed. 982 (1925); Corson v. Maryland, 120 U.S. 502, 7 S.Ct. 655, 30 L.Ed. 699 (1887). Thus, the constitutional inquiry relates not simply to the form of the particular tax, but to its effect on competition in the several States. 52 As indicated in Part I above, application of Iowa's single factor-sales apportionment formula, in the context of general use of three-factor formulae, inevitably handicaps out-of-state businesses competing for sales in Iowa. The handicap will diminish to the extent that the corporation locates its plant and labor force in Iowa, but some competitive disadvantage will remain unless all of the corporate property and payroll are relocated in Iowa.4 In the absence of congressional action, the Commerce Clause constrains us to view the State's interest in retaining this particular levy as against the constitutional preference for an open economy. See, e. g., Raymond Motor Transp., Inc. v. Rice, 434 U.S., at 440-442, 98 S.Ct., at 793-794; Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970); Di Santo v. Pennsylvania, 273 U.S. 34, 44, 47 S.Ct. 267, 271, 71 L.Ed. 524 (1927) (Stone, J., dissenting); Dowling, Interstate Commerce and State Power, 27 Va.L.Rev. 1, 14-15, and n. 20 (1940). B 53 Iowa's interest in any particular level of tax revenues is not affected by the use of the single-factor sales formula. It cannot be predicted with certainty that its application will result in higher revenues than any other formula.5 If Iowa needs more revenue, it can adjust its tax rates. That adjustment would not have the discriminatory impact necessarily flowing from the choice of the single-factor sales formula.6 Hence, if Iowa's choice is to be sustained, it cannot be by virtue of the State's interest in protecting its fisc or its power to tax. No other justification is offered. If we are to uphold Iowa's apportionment formula, it must be because no consistent principle can be developed that could account for the invalidation of the Iowa formula, yet support application of other States' imprecise formulae. C 54 It is argued that since this Court on several occasions has upheld the use of single-factor formulae, Iowa's scheme cannot be regarded as suspect simply because it does not embody the prevalent three-factor theory. Consideration of the decisions dealing with single-factor formulae, however, reveals that each is distinguishable. 55 In Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 41 S.Ct. 113, 65 L.Ed. 165 (1920), this Court upheld Connecticut's use of a single-factor property formula to apportion the net profits of a foreign corporation. Such a formula is not clearly discriminatory in Commerce Clause terms. The only competitive disadvantage inevitably resulting from it would attend a decision to locate a plant or office in the taxing State. The Commerce Clause does not concern itself with a State's decision to place local business at a disadvantage. Cf. Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528, 79 S.Ct. 437, 441, 3 L.Ed.2d 480 (1959). 56 Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm'n, 266 U.S. 271, 45 S.Ct. 82, 69 L.Ed. 282 ( 924), is similarly distinguishable. In Bass, New York apportioned the net income of foreign corporations using a single-factor property formula that comprised real and tangible personal property, bills and accounts receivable, and stock in other corporations. This Court upheld that formula, observing that plaintiff in error had not shown that "application of the statutory method of apportionment has produced an unreasonable result." Id., at 283, 45 S.Ct. at 84. As in Underwood Typewriter, however, the single-factor property formula did not necessarily discriminate against businesses carried on out of State; indeed, its impact would tend to increase to the extent that corporate business was carried on within the State. Cf. National Leather Co. v. Massachusetts, 277 U.S. 413, 48 S.Ct. 534, 72 L.Ed. 935 (1928); accord, e. g., International Shoe Co. v. Shartel, 279 U.S. 429, 49 S.Ct. 429, 73 L.Ed. 781 (1929); New York v. Latrobe, 279 U.S. 421, 50 S.Ct. 79, 73 L.Ed. 776 (1929); Hump Hairpin Co. v. Emmerson, 258 U.S. 290, 42 S.Ct. 305, 66 L.Ed. 622 (1922); United States Glue Co. v. Oak Creek, 247 U.S. 321, 38 S.Ct. 499, 62 L.Ed. 1135 (1918). 57 Somewhat more troublesome is Ford Motor Co. v. Beauchamp, 308 U.S. 331, 60 S.Ct. 273, 84 L.Ed. 640 (1939). In that case, the Court sustained Texas' use of a single-factor sales formula to apportion the outstanding capital stock, surplus, undivided profits, and long-term obligations of corporations subject to the state franchise tax. While this case may be seen as standing for the proposition that single-factor sales formulae are not per se illegal, it is not controlling in the present case.7 In Ford Motor Co., as in Underwood Typewriter and Bass, there was no showing of virtually universal use of a conflicting type of formula for determining the same tax. Thus, it could not be said that the Texas formula inevitably imposed a competitive disadvantage on out-of-state corporations. Discrimination not being shown, there was no basis for invalidating the Texas scheme under the Commerce Clause. 58 The opposite is true here. In the context of virtually universal use of the basic three-factor formula, Iowa's use of the single-factor sales formula necessarily discriminates against out-of-state manufacturers. The only remaining question, then, is whether Iowa's scheme may be saved by the fact that its discriminatory nature depends on context: If other States were not virtually unanimous in their use of an opposing formula, past decisions would make it difficult to single out Iowa's scheme as more offensive than any other. D 59 On several occasions, this Court has compared a state statutory requirement against the practice in other States in determining the statute's validity under the Commerce Clause. In Southern Pacific Co. v. Arizona ex el. Sullivan, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945), the Court struck down a state statute limiting passenger trains to 14 cars and freight trains to 70 cars. Noting that only one State other than Arizona enforced a restriction on train lengths,8 the Southern Pacific Court specifically considered the Arizona law against the background of the activities in other States: 60 "Enforcement of the law in Arizona, while train lengths remain unregulated or are regulated by varying standards in other states, must inevitably result in an impairment of uniformity of efficient railroad operation because the railroads are subjected to regulation which is not uniform in its application. Compliance with a state statute limiting train lengths requires interstate trains of a length lawful in other states to be broken up and reconstituted as they enter each state according as it may impose varying limitations upon train lengths. The alternative is for the carrier to conform to the lowest train limit restriction of any of the states through which its trains pass, whose laws thus control the carriers' operations both within and without the regulating state." Id., at 773, 65 S.Ct., at 1522. (Emphasis added.) 61 The clear implication is that the Court's view of the Arizona length limit might have been different if practices in other States had been other than as the Court found them. Had other States adopted the Arizona rule, there might have been no basis for holding it unconstitutional. See also Morgan v. Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317 (1946); Hall v. DeCuir, 95 U.S. 485, 24 L.Ed. 547 (1878). 62 The Court also looked to the practices of other States in holding unconstitutional Illinois' mudguard requirement in Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959). The type of mudguard banned on trucks operating in Illinois was required in Arkansas and permitted in 45 other States. The Court pointed out the conflict between the Illinois and Arkansas regulations and went on to consider the relevance of other States' rules: 63 "A State which insists on a design out of line with the requirements of almost all the other States may sometimes place a great burden of delay and inconvenience on those interstate motor carriers entering or crossing its territory. Such a new safety device—out of line with the requirements of the other States—may be so compelling that the innovating State need not be the one to give way. But the present showing—balanced against the clear burden on commerce—is far too inconclusive to make this mudguard meet that test." Id., at 529-530, 79 S.Ct., at 968. 64 It seems clear from the Bibb Court's discussion that the conflict between the Illinois regulation and that of Arkansas would not have led to the latter's invalidation had it been the one before the Court. The Arkansas regulation merely required what was permitted in nearly all the other States. After looking to that virtually uniform practice opposed to that of Illinois, the conclusion that the Illinois requirement was "out of line" was a relatively simple one. Since it was not justified by any interest in increased safety, it was held unconstitutional. See also Raymond Motor Transp., Inc. v. Rice, 434 U.S., at 444-446, 98 S.Ct., at 795-797. 65 Most nearly in point is General Motors Corp. v. District of Columbia, 380 U.S. 553, 85 S.Ct. 1156, 114 L.Ed.2d 68 (1965). In that case, this Court held unlawful the District's use of a single-factor sales apportionment formula under the District of Columbia Income and Franchise Tax Act of 1947. Although the decision turned on a question of statutory interpretation, the Court's analysis is equally applicable to a Commerce Clause inquiry: 66 "The great majority of States imposing corp rate income taxes apportion the total income of a corporation by application of a three-factor formula which gives equal weight to the geographical distribution of plant, payroll, and sales. The use of an apportionment formula based wholly on the sales factor, in the context of general use of the three-factor approach, will ordinarily result in multiple taxation of corporate net income . . . . In any case, the sheer inconsistency of the District formula with that generally prevailing may tend to result in the unhealthy fragmentation of enterprise and an uneconomic pattern of plant location, and so presents an added reason why this Court must give proper meaning to the relevant provisions of the District Code." Id., at 559-560, 85 S.Ct., at 1160 (footnote omitted). 67 The General Motors Court, then, expressly evaluated the single-factor sales formula in the context of general use of the three-factor method and concluded that the former created dangers for interstate commerce. 68 These cases lead me to believe that it is not only proper but essential to determine the validity of the Iowa formula against the background of practices in the other States. If one State's regulatory or taxing statute is significantly "out of line" with other States' rules, Bibb, supra, 359 U.S., at 530, 79 S.Ct., at 968, and if by virtue of that departure from the general practice it burdens or discriminates against interstate commerce, Commerce Clause scrutiny is triggered, and this Court must invalidate it unless it is justified by a legitimate local purpose outweighing the harm to interstate commerce, Pike v. Bruce Church, Inc., 397 U.S., at 142, 90 S.Ct., at 847; accord, Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 804, 96 S.Ct. 2488, 2495, 49 L.Ed.2d 220 (1976). There probably can be no fixed rule as to how nearly uniform the countervailing state policies must be; that is, there can be no rule of 26 States, of 35, or of 45. Commerce Clause inquiries generally do not run in such precise channels. The degree of conflict and its resulting impact on commerce must be weighed in the circumstances of each case. But the difficulty of engaging in that weighing process does not permit this Court to avoid its constitutional duty and allow an individual State to erect "an unreasonable clog upon the mobility of commerce," Baldwin v. G. A. F. Seelig, Inc., 294 U.S., at 527, 55 S.Ct. at 502, by taking advantage of the other States' commendable trend toward uniformity. 69 Such is the case before us. Forty-four of the forty-five States (including the District of Columbia), other than Iowa, that impose a corporate income tax utilize a similar three-factor apportionment formula.9 The 45th State, West Virginia, uses a two-factor formula based on property and payroll. See n. 1, supra. Those formulae individually may be no more rational as means of apportioning the income of a multistate business than Iowa's single-factor sales formula. But see General Motors Corp. v. District of Columbia, supra, 380 U.S., at 561, 85 S.Ct. at 1161. Past decisions upheld differing formulae because of this inability to determine that any of the various methods of apportionment in use was the best; so long as a State's choice was not shown to be grossly unfair, it would be upheld. Compare Underwood Typewriter with Hans Rees' Sons. The more recent trend toward uniformity, however, permits identification of Iowa's formula, like the mudguard requirement in Bibb, as "out of line," if not per se irrational. Since Iowa's formula inevitably discriminates against out-of-state sellers, and since it has not been justified on any fiscal or administrative basis, I would hold it invalid under the Commerce Clause. 1 The statute provides: "Interest, dividends, rents, and royalties (less related expenses) received in connection with business in the state, shall be allocated to the state, and where received in connection with business outside the state, shall be allocated outside of the state." Iowa Code § 422.33(1)(a) (1977). In describing this section, the Iowa Supreme Court stated that "certain income, the geographical source of which is easily identifiable, is allocated to the appropriate state." 254 N.W.2d 737, 739. Thus, for example, rental income would be attributed to the State where the property was located. And in appellant's case, this section operated to exclude its investment income from the tax base. 2 Iowa Code § 422.33(1)(b) (1977). 3 The operation of the two formulas may be briefly described. The single-factor sales formula yields a percentage representing a ratio of gross sales in Iowa to total gross sales. The three-factor formula yields a percentage representing an average of three ratios: property within the State to total property, payroll within the State to total payroll, and sales within the State to total sales. These percentages are multiplied by the adjusted total net income to arrive at Iowa taxable net income. This net income figure is then multiplied by the tax rate to compute the actual tax obligation of the taxpayer. 4 For those years the two formulas resulted in the following percentages: Fiscal Year Sales Factor Three-Factor Ended Percentage Percentage ---------- ----------- ----------- 3/31/68 21.8792% 14.1088% 3/31/69 21.2134% 14.3856% 3/31/70 19.9492% 14.0200% 3/31/71 18.9544% 13.2186% 3/31/72 18.6713% 12.2343% For a description of how these percentages are computed, see n.3, supra. 5 Thus, in 1968, for example, Moorman's three-factor computation resulted in a tax of $81,466, whereas the Director's single-factor computation resulted in a tax of $121,363. 6 See, e. g., Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 41 S.Ct. 45, 65 L.Ed. 165; Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm'n, 266 U.S. 271, 45 S.Ct. 82, 69 L.Ed. 282; Ford Motor Co. v. Beauchamp, 308 U.S. 331, 60 S.Ct. 273, 84 L.Ed. 640. 7 See also Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm'n, supra; Norfolk & Western R. Co. v. North Carolina ex rel. Maxwell, 297 U.S. 682, 56 S.Ct. 625, 80 L.Ed. 977. 8 The Court, it is true, expressed doubts about the wisdom of the economic assumptions underlying the challenged formula and noted that its use in the context of the more prevalent three-factor formula would not advance the policies underlying the Commerce Clause. But these considerations were deemed relevant to the question of legislative intent, not constitutional interpretation. 9 In his concurring opinion, Justice McCormick of the Iowa Supreme Court made this point: "In the present case, Moorman did not attempt to prove the amount of its actual net income from Iowa activities in the years involved. Therefore no basis was presented for comparison of the corporation's Iowa income and the income apportioned to Iowa under the formula. In this era of sophisticated accounting techniques, it should not be impossible for a unitary corporation to prove its actual income from activities in a particular state. However, Moorman showed only that its tax liability would be substantially less if Iowa employed a three-factor apportionment formula. We have no basis to assume that the three-factor formula produced a result equivalent to the corporation's actual income from Iowa activities. Having failed to establish a basis for comparison of its actual income in Iowa with the income apportioned to Iowa under the single-factor formula, Moorman did not demonstrate that the single-factor formula produced a grossly unfair result. Thus it did not prove unconstitutionality of the formula as applied." 254 N.W.2d, at 757. 10 Since Illinois did not adopt its income tax until 1970, there was no possibility of any overlap until that year. The alleged overlap in the three years following Illinois' enactment of an income tax was 34.38% in 1970, 34.51% in 1971, and 37.01% in 1972. 11 Since there is no evidence in the record regarding the percentages of its total net income taxed in the other States in which it did business during those years, any claim that appellant was taxed on more than 100% of its total net income would als be speculative. 12 Appellant also contends that the Iowa formula discriminates against interstate commerce in violation of the Commerce Clause and the Equal Protection Clause, because an Illinois corporation doing business in Iowa must pay tax on a greater portion of its income than a local Iowa company, and an Iowa company doing business in Illinois will pay tax on less of its income than an Illinois corporation doing business in Iowa. The simple answer, however, is that whatever disparity may have existed is not attributable to the Iowa statute. It treats both local and foreign concerns with an even hand; the alleged disparity can only be the consequence of the combined effect of the Iowa and Illinois statutes, and Iowa is not responsible for the latter. Thus, appellant's "discrimination" claim is simply a way of describing the potential consequences of the use of different formulas by the two States. These consequences, however, could be avoided by the adoption of any uniform rule; the "discrimination" does not inhere in either State's formula. 13 Thus, while some States such as Iowa assign sales by destination, "sales can be assigned to the state . . . of origin, the state in which the sales office is located, the state where an employee of the business making the sale carries on his activities or where the order is first accepted, or the state in which an interstate shipment is made." Note, State Taxation of Interstate Businesses and the Multistate Tax Compact: The Search for a Delicate Uniformity, 11 Colum.J.Law & Soc.Prob. 231, 237 n.20 (1975) (citation omitted). 14 See, e. g., Uniform Division of Income for Tax Purposes Act § 1(a). 15 Thus, one State in which a corporation does business may consider a particular type of income business income and simply include it in its apportionment formula; a second State may deem that same income nonbusiness income and attribute it to itself as the "commercial domicile" of the company; and a third State, though also considering it nonbusiness income, may attribute it to itself as the "legal domicile" of the company. See Note, supra n.13, at 239. 16 This process is especially unsettling if a longstanding tax policy in one State, such as Iowa's, becomes the object of constitutional attack simply because it is different from the recently adopted practice of its neighbor. 1 Iowa is not a member of the Multistate Tax Commission. Tr. of Oral Arg. 33. See United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 98 S.Ct. 799, 54 L.Ed.2d 682 (1978). 2 Iowa's income tax was first adopted in 1934. 1933-1934 Iowa Acts, Ex.Sess., ch. 82; Tr. of Oral Arg. 29. Its single-factor sales formula was embraced in § 28 of that original Act. 1 Those 44 States are as follows: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Virginia, and Wisconsin. West Virginia, the 45th State, uses a two-factor formula which omits the sales component. Colorado also has a two-factor property and sales formula, and Missouri a one-factor sales formula, which are available to taxpayers at their option as alternatives to the three-factor formula. 2 A simplified example demonstrates the economic effect of the Iowa formula on out-of-state corporations. Iowa Corp. is domiciled in Iowa, and its total property and payroll are located there. Illinois Corp. is domiciled in Illinois, with all its property and payroll in that State. Both corporations have $1 million in net income, and both make half their sales in Iowa and half in Illinois. A 5% corporate income tax is levied in both States. If both States use a single-factor sales apportionment formula, both would go through the following calculation in determining the tax liability of both corporations: Sales in States --------------- = 1/2; 1/2 X $1,000,000 X 0.05 = $25,000 Total Sales The pattern of payments and receipts would be as follows: Total Taxes Taxes Paid Taxes Paid Paid by each to Iowa to Illinois Corporation ------------------------------------------------------------------- ------------------------------------------------------------------ Illinois Corp. $25,000 $25,000 $50,000 Iowa Corp. 25,000 25,000 50,000 ------------------------------------------------------------------- ------------------------------------------------------------------ TOTAL 50,000 50,000 If both Iowa and Illinois again levy the same 5% income tax but use the three-factor formula, which is: Sales in Property in Payroll in State + State + State ---------- + ---------- + ---------- Total Sales Total Property Total Payroll ------------------------------------------------------------------- ----------------------------------------, 3 then each corporation's payment to its state of domicile would be 0.5 + 1 + 1 ------------ X $1,000,000 X 0.05 = $41,667, and 3 its payment to the state in which it is a foreign corporation would be 0.5 + 0 + 0 ------------ X $1,000,000 X 0.05 = $8,333. 3 The pattern of tax payments and receipts would be as follows: Total Taxes Taxes Paid Taxes Paid Paid by each to Iowa to Illinois Corporation ------------------------------------------------------------------- ------------------------------------------------------------------ Iowa Corp. $41,667 $ 8,333 $50,000 Illinois Corp. 8,333 41,667 50,000 ------------------------------------------------------------------- ------------------------------------------------------------------ TOTAL 50,000 50,000 But where Iowa uses a single-factor sales formula and Illinois uses the three-factor method, Illinois Corp. faces an increase in its overall state tax liability not encountered by Iowa Corp.: Total Taxes Taxes Paid Taxes Paid Paid by each to Iowa to Illinois Corporation ------------------------------------------------------------------- ------------------------------------------------------------------ Iowa Corp. $25,000 $ 8,333 $33,333 Illinois Corp. 25,000 41,667 66,667 ------------------------------------------------------------------- ------------------------------------------------------------------ TOTAL 50,000 50,000 These differences will be smaller or larger, depending upon the actual tax rates of the various States involved, and upon the actual proportions of domestic to foreign sales, the payrolls, and the properties of individual corporations. Only the magnitudes will change with these factors, however, and not the direction of the impact. The general principle will apply in all cases. 3 This does not mean, as the Court suggests, ante, at 277-280, that this Court is disabled from ever determining whether a particular apportionment formula imposes multiple burdens upon or discriminates against interstate commerce. See General Motors Corp. v. District of Columbia, 380 U.S. 553, 85 S.Ct. 1156, 14 L.Ed.2d 68 (1965); Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm'n, 266 U.S. 271, 45 S.Ct. 82, 69 L.Ed. 282 (1924); Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 41 S.Ct. 45, 65 L.Ed. 165 (1920). Regardless of which formula more accurately locates the State in which any particular segment of income is earned, it is a mathematical fact that the use of different formulae may result in taxation on more than 100% of the corporation's income under the State's own definitions, as well as in skewed tax effects. See n. 2, supra. When this result has a predictably burdensome or discriminatory effect, Commerce Clause scrutiny is triggered. See Part III, infra. The effects of the challenged formula upon the particular corporation's income is strictly related only to inquiry under the Due Process Clause, since Commerce Clause analysis focuses on the impact upon commerce in general. 4 The clog on commerce present here is similar to the risk of imposing "multiple burdens" on interstate commerce against which the Court has warned in various decisions. See, e. g., Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 255-256, 58 S.Ct. 546, 548-549, 82 L.Ed. 823 (1938); J. D. Adams Mfg. Co. v. Storen, 304 U.S. 307, 311-312, 58 S.Ct. 913, 915-916, 82 L.Ed. 1365 (1938); Gwin, White & Prince, Inc. v. Henneford, 305 U.S. 434, 439, 59 S.Ct. 325, 83 L.Ed. 272 (1939); Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 458, 79 S.Ct. 357, 362, 3 L.Ed.2d 421 (1959). Compare Evco v. Jones, 409 U.S. 91, 93 S.Ct. 349, 34 L.Ed.2d 325 (1972), with General Motors Corp. v. Washingto , 377 U.S. 436, 84 S.Ct. 1564, 12 L.Ed.2d 430 (1964). In this case, Iowa corporations will not risk additional burdens when they make out-of-state sales. Cf. Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 351, 97 S.Ct. 2434, 2445, 53 L.Ed.2d 383 (1977). Indeed, to the extent that they shift sales out of Iowa, their overall state tax liability will decrease. Out-of-state corporations selling in Iowa, however, do face the prospect of multiple burdens. Hence, there is clear discrimination against out-of-state corporations, which is the consequence of the particular multiple burden imposed. 5 For example, if Iowa switched to a three-factor formula and retained the same rates, revenues from out-of-state corporations would decrease, since Iowa would no longer be attributing to itself all of the income earned by Iowa sales of such corporations. Revenues from corporations located in Iowa, however, would increase, since Iowa would now be attributing to itself some portion of the income earned by those corporations' out-of-state sales. See also n. 2, supra. 6 Given the nearly infinite variety of taxes, rates, and apportionment formulae, it might be possible for Iowa to alter its entire tax structure to effect a similar discrimination, and perhaps to do it in a way that avoids Commerce Clause scrutiny. See Barrett, "Substance" vs. "Form" in the Application of the Commerce Clause to State Taxation, 101 U.Pa.L.Rev. 740, 748 (1953). That speculative possibility cannot deter us from striking down an obvious discrimination against interstate commerce when one is presented. The Court has never shrunk from that duty in the past. To do so would be to abandon any effort of applying Commerce Clause principles to state tax measures. This is not to say that States are always forbidden to offer tax incentives to encourage local industry or to achieve other valid state goals. See, e. g., Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976). Such programs, and the interests being served, must be considered on a case-by-case basis. 7 Although overruling Ford Motor Co. would not be necessary in this case, the time may be ripe for its reconsideration. See, e. g., J. Hellerstein, State and Local Taxation 324 (3d ed. 1969). As suggested in General Motors Corp. v. District of Columbia, 380 U.S. 553, 561, 85 S.Ct. 1156, 1161, 14 L.Ed.2d 68 (1965), a sales-only formula is probably the most illogical of all apportionment methods, since "the geographic distribution of a corporation's sales is, by itself, of dubious significance in indicating the locus of either" a corporation's sources of income or the social costs it generates. The Court's willingness to uphold the sales-only formula in Ford Motor Co. may have been the result of its view that it was dealing solely with the "measure" of the tax rather than its "subject." See 308 U.S., at 336, 60 S.Ct. at 276. This Court no longer adheres to the use of those formalistic labels, looking instead to "economic realities" in determining the constitutionality of state taxing schemes. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S.Ct. 1076, 1079, 51 L.Ed.2d 326 (1977). 8 That State was Oklahoma. Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S., at 773-774, n. 3, 65 S.Ct., at 1522. 9 There are differences in definitions of the three factors among the States that use a three-factor formula. See, e. g., J. Hellerstein, State and Local Taxation 309-310, and n. 7 (3d ed. 1969); Note, State Taxation of Interstate Businesse and the Multistate Tax Compact: The Search for a Delicate Uniformity, 11 Colum.J. of Law & Soc.Prob. 231, 235-238 (1975). Such differences may tend in less dramatic fashion to impose burdens on out-of-state businesses not entirely dissimilar to the one presented here. It may be that any such effects do not work inevitably in one direction, as does the burden imposed here, or they may be de minimis in Commerce Clause terms. In any event, they are not presently before us. It suffices to dispose of this case that nearly all the other States use a basic three-factor formula, while Iowa clings to its sales-only method.

78

57 L.Ed.2d 239 98 S.Ct. 2370 437 U.S. 322 The GREYHOUND CORPORATION et al., Petitioners,v.MT. HOOD STAGES, INC., etc. No. 77-598. Argued April 24, 1978. Decided June 1 , 1978. Syllabus On October 7, 1964, respondent motor carrier instituted a proceeding before the Interstate Commerce Commission in which it asked the ICC to reopen proceedings in which the ICC, over respondent's opposition, had approved petitioner's acquisition of several bus companies, alleging that petitioner had not lived up to representations that the acquisitions would not adversely affect respondent. On December 14, 1964, the United States petitioned for leave (and later was allowed) to intervene in the ICC proceeding, stating that respondent's allegations made "a serious charge" but that it did not know whether they were "true or false." After extensive hearings, the ICC decided against petitioner. In the meantime on July 5, 1968, respondent filed an action in District Court alleging, inter alia, violations of the federal antitrust laws, and the jury found violations of the Sherman Act and fraudulent concealment of such violations. The court held that the Government's petition to intervene in the ICC proceeding served to toll the statute of limitations under § 5(i) of the Clayton Act (which provides that "[w]henever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, . . . the running of the statute of limitations in respect of every private . . . right of action arising under said laws and based in whole or in part on any matter complained of in said proceeding shall be suspended during the pendency thereof and for one year thereafter"), with the result that the Act's four-year period of limitations extended back to December 14, 1960, when it was combined with fraudulent concealment to create a 20-year damages period. The Court of Appeals affirmed, holding that the literal wording of § 5(i) was not controlling and that § 5(i)'s purpose in furthering effective enforcement of the antitrust laws by permitting private litigants to benefit from governmental antitrust enforcement efforts would be advanced by treating the United States' petition to intervene as the "functional equivalent of a direct action" by the United States. Held : The Clayton Act's statute of limitations was not tolled under § 5(i) by the filing of the Government's petition to intervene in the ICC proceeding. Pp. 330-337. (a) The ICC proceeding was plainly not "instituted by the United States" within the meaning of § 5(i). It strains accepted usage to argue that a party who intervenes in a proceeding instituted by someone else has also "instituted that proceeding." In fact, the United States not only did not institute the ICC proceeding but was not in a position to do so, since in view of its statement that it did not know whether respondent's allegations were "true or false," it could not in good faith have made the charging allegations necessary to institute the proceeding. Pp. 330-331. (b) Neither had the United States, within the meaning of § 5(i), "complained of" anything on which the District Court action was based, since in the ICC proceeding its petition to intervene charged petitioner with no wrongdoing, took no position on the merits, sought no relief, and disclaimed any knowledge of the relevant facts, seeking only an opportunity for respondent to establish its allegations. Pp. 331-332. (c) What is now § 5(i) was enacted to ensure that private litigants would have the benefit of prior Government antitrust efforts, and this purpose would not be served by construing § 5(i) as applicable to the facts of this case, where respondent is seeking to benefit not from a Government antitrust action, but from an ICC proceeding respondent itself in tituted. Pp. 332-334. (d) Application of § 5(i) to this case would also fail to give weight to Congress' purpose in amending the Clayton Act to provide a uniform four-year period of limitations and thus eliminate the prior confusion caused by determining the period of limitations by state law. P. 334. 555 F.2d 687, vacated and remanded. John R. Reese, San Francisco, Cal., for petitioners. Eugene C. Crew, San Francisco, Cal., for respondent. Mr. Justice BLACKMUN delivered the opinion of the Court. 1 This case presents the issue whether § 5(i) of the Clayton Act, as amended, 88 Stat. 1706, 90 Stat. 1396, 15 U.S.C. § 16(i) (1976 ed.),1 operates to toll the running of the Act's statute of limitations2 from the date on which the United States filed a petition for leave to intervene in an Interstate Commerce Commission proceeding previously instituted by the plaintiff. 2 * Petitioner Greyhound3 and respondent Mt. Hood Stages, Inc. (doing business as Pacific Trailways), are motor common carriers of passengers and package express and are subject to regulation by the Interstate Commerce Commission (ICC). Greyhound is the largest common carrier by bus in the United States. Mt. Hood is one of Greyhound's comparatively small competitors; it operates over routes in Oregon, Idaho, and Utah. Its principal routes are between Portland, Eugene, and Albany, Ore., in the west, and Salt Lake City, in the east, and between Klamath Falls, Ore., in the south, and Biggs and The Dalles, Ore., in the north. Greyhound's route authority surrounds that of Mt. Hood. 3 During the period from 1947 to 1956, Greyhound acquired control of eight bus companies operating in the Western United States. See Mt. Hood Stages, Inc., 104 M.C.C. 449, 450, and n. 1 (1968). In the proceedings before the ICC, Mt. Hood opposed four of those acquisitions,4 alleging that, if the acquisitions were approved, Greyhound could route traffic around Mt. Hood's operat ons and thereby deprive the public of the most convenient service and jeopardize Mt. Hood's continued existence.5 4 Greyhound successfully contended, however, that the acquisitions were not intended to, and would not, have such consequences. Greyhound represented to the ICC that the acquisitions 5 "would not adversely affect connecting carriers; that arrangements with such carriers, including interchange of traffic and open gateways, would be maintained; that it was not the policy of Greyhound to route passengers over circuitous routes; that its agents were instructed to quote the direct route as well as the Greyhound route and give passengers their choice; and that Greyhound had always carried MH's schedules in its folders and cooperated in every way to acquaint the public with its service and thus promote additional traffic and business for their lines."6 6 Greyhound also represented to the Commission that it would continue the joint through-bus arrangement with Mt. Hood.7 As Greyhound had anticipated, the ICC relied on these representations in determining that the proposed acquisitions were in the public interest. Id., at 454-457, 461. 7 In July 1964, Greyhound terminated the through-bus arrangement with Mt. Hood. On October 7 of that year, Mt. Hood filed a petition with the Commission, pursuant to § 5(10) (formerly § 5(9)) of the Interstate Commerce Act,8 alleging that Greyhound had not lived up to various representations it had made to the ICC and asking the Commission to reopen the acquisition proceedings "for further hearing to consider the necessity of attaching certain terms, conditions and limitations to the privileges therein granted" or, in the alternative, to order Greyhound to divest itself of operations acquired in those proceedings. App. 4. The allegations in Mt. Hood's petition to the Commission were essentially the same as those Mt. Hood made later in this antitrust suit, that is, that Greyhound had canceled the through-bus connection, had scheduled connecting service so as to preclude reasonable connections with Mt. Hood, had directed Greyhound's agents and independent joint ticket agents to send traffic around Mt. Hood's routes through use of longer all-Greyhound routes, and had interfered in various ways with the distribution of Mt. Hood's schedules and the quotation of Mt. Hood's rates and services, all with the intent of injuring Mt. Hood. Id., at 10-11. 8 Slightly more than two months later, on December 14, 1964, the United States petitioned for leave to intervene in the ICC proceeding. Id., at 36. In its petition, the United States stated it had an interest in the proceeding and it urged that the Commission hold a hearing on Mt. Hood's allegations. The Government's petition observed that Mt. Hood's allegations "make a serious charge," id., at 37, but added: "We have no way of knowing whether those of Mt Hood's allegations which Greyhound denies are true or false; resolution of such controversies is a typical function of a hearing."9 Id., at 37-38. 9 On May 27, 1965, the United States and others were granted permission to intervene in the ICC proceeding. Id., at 43. Such permission, however, was on condition that it "shall not be construed to allow intervenors to introduce evidence which will unduly broaden the issues raised in this proceeding." Ibid. 10 After an extensive evidentiary hearing, the examiner resolved all factual issues against Greyhound and recommended entry of an order requiring Greyhound to abide by the representations it had made in the acquisition proceedings. Mt. Hood Stages, Inc., 104 M.C.C., at 464-496. On April 5, 1968, Division 3 of the ICC sustained the examiner's findings but deferred entry of a supplemental order to allow voluntary negotiations between the parties. Id., at 462-463. 11 On July 5, 1968, Mt. Hood filed this action in the United States District Court for the District of Oregon for damages and injunctive relief, alleging violations of the antitrust laws and common-law and statutory unfair competition. App. 46. Mt. Hood's complaint alleged, as to the antitrust violations, that, beginning before 1947 and continuing to the date of the complaint, Greyhound had restrained and monopolized commerce in the carriage by motorcoach of passengers and their luggage between points in the Western United States, including Oregon, Idaho, and Utah, by means essentially the same as those that were the subject of the ICC proceeding. Id., at 49-52. 12 In the Commission proceeding, meanwhile, the efforts of the parties to agree upon an order failed. The entire Commission therefore entered an order requiring Greyhound to restore the practices and traffic patterns existing when the acquisitions at issue were authorized and, specifically, to eliminate the anticompetitive practices of which Mt. Hood had complained. See Greyhound Lines, Inc. v. United States, 308 F.Supp. 1033, 1037 (N.D.Ill.1970). A three-judge United States District Court denied Greyhound's motion to set aside the Commission's order and granted the counterclaim of the United States and the ICC by the issuance of its own order in similar terms, thus granting injunctive relief. Id., at 1040-1041. Following entry of the District Court's order enforcing the ICC decision, Mt. Hood amended its complaint in this antitrust suit to eliminate its prayer for injunctive relief.10 App. 57. 13 In the present action, interrogatories were submitted to the jury. By its special verdict returned in May 1973, the jury found that, as alleged by Mt. Hood, Greyhound had violated both §§ 1 and 2 of the Sherman Act; that Greyhound had fraudulently concealed these antitrust violations during the period from January 1, 1953, to July 4, 1964; but that Mt. Hood knew or should have known of the violation on December 14, 1960. App. 82. The trial court held that the Government's petition to intervene in the ICC modification proceeding on December 14, 1964, served to toll the statute of limitations under § 5(i) of the Clayton Act. App. 80. The result was that the Act's four-year period of limitations extended back to December 14, 1960, where it was combined with the fraudulent concealment to create a 20-year damages period.11 Damages of $13,146,090 (after trebling) were awarded Mt. Hood, plus attorneys' fees of $1,250,000 and costs. Id., at 83, 104, 106. 14 On appeal, the United States Court of Appeals for the Ninth Circuit affirmed. 555 F.2d 687 (1977). We granted certiorari limited to the issue of the correctness of the interpretation of § 5(i) by the District Court and the Court of Appeals.12 434 U.S. 1008, 98 S.Ct. 716, 54 L.Ed.2d 750 (1978). II 15 In holding that the United States' intervention in the ICC proceeding served to toll, by reason of § 5(i), the Clayton Act's period of limitations, the Court of Appeals stated that "[t]he literal wording of section [5(i)] is not controlling." 555 F.2d, at 699. The court, therefore, sought to identify the congressional purpose behind § 5(i) and to effectuate that purpose. 555 F.2d, at 699. In the court's view, the purpose of § 5(i) "is to further effective enforcement of the antitrust laws by permitting private litigants to have the benefits that may flow from governmental antitrust enforcement efforts." 555 F.2d, at 699. The Court of Appeals, quoting the District Court (App. 80), declared that this purpose would be advanced by " 'treating intervention by Antitrust Division lawyers as the functional equivalent of a direct action by them.' " 555 F.2d, at 700. 16 We find this reasoning unpersuasive. In particular, we are unable to agree that the language of § 5(i) is so unhelpful. Neither do we agree that the congressional purpose behind § 5(i) is advanced by the holdings of the District Court and the Court of Appeals. A. 17 Logic and precedent dictate that " '[t]he starting point in every case involving construction of a statute is the language itself.' " Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 472, 97 S.Ct. 1292, 1300, 51 L.Ed.2d 480 (1977), and Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S.Ct. 1375, 1383, 47 L.Ed.2d 668 (1976), each quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (POWELL, J., concurring). Examination of the language of § 5(i) prevents acceptance of respondent's position. 18 Section 5(i) begins: "Whenever any civil or criminal proceeding is instituted by the United States . . . ." (Emphasis added.) The ICC proceeding at issue here plainly was not one instituted by the United States. As the foregoing statement of facts demonstrates, and as the Court of Appeals acknowledged, "Mt. Hood rather than the United States instituted the proceedings." 555 F.2d, at 699. It strains accepted usage to argue that a party who intervenes in a proceeding instituted by someone else has also "instituted" t at proceeding. This Court has observed: 19 "When the term [to intervene] is used in reference to legal proceedings, it covers the right of one to interpose in, or become a party to, a proceeding already instituted . . . ." Rocca v. Thompson, 223 U.S. 317, 330, 32 S.Ct. 207, 210, 56 L.Ed. 453 (1912) (emphasis added). 20 In truth, the United States not only did not institute the proceeding, but also was not in a position to do so. As its petition to intervene stated, the Government had "no way of knowing" whether Mt. Hood's allegations, which Greyhound denied, were "true or false," and thus it could not in good faith have made the charging allegations necessary to institute the proceeding. At least in this case, therefore, the question is not primarily one of form, that is, who reached the ICC first; it is one of substance, that is, who investigated the facts enabling it to make charging allegations and seek relief and thereby to "institute" the proceeding. 21 Just as the United States cannot be said to have "instituted" the ICC proceeding, neither had it "complained of," within the meaning of § 5(i), anything on which the present action is based. The cases in which the applicability of § 5(i) has been considered establish that the determination of whether a private action is based on matters "complained of" in a prior Government action "[i]n general . . . must be limited to a comparison of the two complaints on their face." Leh v. General Petroleum Corp., 382 U.S. 54, 65, 86 S.Ct. 203, 210, 15 L.Ed.2d 134 (1965); accord, Luria Steel & Trading Corp. v. Ogden Corp., 484 F.2d 1016, 1022 (C.A.3 1973), cert. denied, 414 U.S. 1158, 94 S.Ct. 917, 39 L.Ed.2d 110 (1974); Rader v. Balfour, 440 F.2d 469, 473 (C.A.7), cert. denied sub nom. Alpha Chi Omega v. Rader, 404 U.S. 983, 92 S.Ct. 444, 30 L.Ed.2d 367 (1971). In the ICC proceeding here in question, the United States' petition for leave to intervene charged Greyhound with no wrongdoing, took no position on the merits, sought no relief, and, indeed, disclaimed any knowledge of the relevant facts. It sought only an opportunity for Mt. Hood to establish its allegations. This case, therefore, simply cannot be viewed as one based on any matter "complained of" by the United States.13 B 22 Moreover, the language of § 5(i) that we rely upon accurately manifests Congress' intent in enacting the section. As the Court previously has noted, the original § 5 of the Clayton Act, 38 Stat. 731, was adopted in response to the request of President Wilson and consisted of material that now constitutes §§ 5(a)14 and 5(i).15 In a speech to Congress on January 20, 1914, the President urged that a statute be enacted that would permit victims of antitrust violations to have "redress upon the facts and judgments proved and entered in suits by the Government" and that "the statute of limitations shall be suffered to run against such litigants only from the date of the conclusion of the Government's action. It is not fair that the private litigant should be obliged to set up and establish again the facts which the Government has proved."16 51 Cong.Rec. 1964 (1914). This very language of the President was quoted in part in Minnesota Mining & Mfg. Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 318, 85 S.Ct. 1473, 1477, 14 L.Ed.2d 405 (1965). Congress acceded to the President's request. What is now § 5(i) was enacted to ensure that private litigants would have the benefit of prior Government antitrust enforcement efforts. 381 U.S., at 317, 85 S.Ct., at 1476. Here, however, as already has been pointed out, Mt. Hood is seeking to benefit not from a Government antitrust action but from an ICC proceeding that Mt. Hood itself initiated. 23 Accordingly, construing § 5(i) as applicable to the facts of this case would not serve Congress' most obvious purpose. It would also fail to give any weight to another related and important congressional purpose. A Ninth Circuit panel very recently emphasized: "Although the plaintiff is correct in asserting that [§ 5(i)] serves the broad and beneficent purpose of aiding private antitrust litigants . . . it is also true that it is a statute of repose." Dungan v. Morgan Drive-Away, Inc., 570 F.2d 867, 869 (1978). This is clear upon examination of the 1955 amendments to the Clayton Act. 69 Stat. 282. Before these amendments, the period of limitations under the Clayton Act was determined by state law. This bred confusion in the computation of the period within which a private suit was required to be brought, especially when the Act's tolling provision (what is now § 5(i)) came into play. In order to eliminate this onfusion, the amendments established a uniform period of limitations of four years17 and declared that the suspension of the statute would extend "during the pendency" of the federal proceeding and "for one year thereafter." Finally, the amendments mandated, in what is now the proviso to § 5(i), that, in the event the statute of limitations is tolled, any private right of action based on the matter complained of in the action by the Government "shall be forever barred unless commenced . . . within four years after the cause of action accrued."18 24 The Senate Report accompanying the 1955 amendments reflects congressional policy against "undue prolongation of [antitrust] proceedings" by extending the limitations period. It noted: 25 "While the committee believes it important to safeguard the rights of plaintiffs by tolling the statute during the pendency of Government antitrust actions, it recognizes that in many instances the long duration of such proceedings taken in conjunction with a lengthy statute of limitations may tend to prolong stale claims, unduly impair efficient business operations, and overburden the calendars of courts. The committee believes the provision of this bill will tend to shorten the period over which private treble-damage actions will extend by requiring that the plaintiff bring his suit within 4 years after it accrued or within 1 year after the Government's case has been concluded. 26 "While the committee considers it highly desirable to toll the statute of limitations during a Government antitrust action and to grant plaintiff a reasonable time thereafter in which to bring suit, it does not believe that the undue prolongation of proceedings is conducive to effective and efficient enforcement of the antitrust laws." S.Rep.No. 619, 84th Cong., 1st Sess., 6 (1955), U.S.Code Cong. & Admin.News 1955, pp. 2328, 2332.19 27 In view of the congressional emphasis on certainty and predictability in the application of § 5(i), the Court of Appeals' conclusion that the United States' petition to intervene should be treated as the "functional equivalent of a direct action" by the United States, 555 F.2d, at 700, is unacceptable. A functional-equivalence standard, applied this loosely, resurrects the very confusion and uncertainty concerning the application of the statute of limitations that Congress sought to eliminate in the 1955 amendments. In a case such as this, in which the Government took no position in its initial petition, a functional-equivalence test would require a detailed review of the record in each proceeding to see what position the Government ultimately took and whether its participation was or was not the "functional equivalent of a direct action." The Government, of course, may well change its position. For example, in Denver & R. G. W. R. Co. v. United States, 387 U.S. 485, 87 S.Ct. 1754, 18 L.Ed.2d 905 (1967), the Government intervened in an ICC proceeding with one position, adopted another in the District Court, and then "completely reversed" itself in this Court. Id., at 490-492, 87 S.Ct., at 1758-1759. Thus, endorsement of the suggested functional-equivalence test would mean that it might be impossible to determine whether Government proceedings would toll the statute until those proceedings were finally resolved. As the Court of Appeals seems to have acknowledged, such an approach would lead to serious problems. 555 F.2d, at 699 n. 31. See also Dungan v.Morgan Drive-Away, Inc., 570 F.2d, at 870-871; cf. Leh v. General Petroleum Corp., 382 U.S., at 65, 86 S.Ct., at 210. To be sure, one way around these problems would be to say that the statute is tolled anytime the United States participates in any regulatory proceeding, regardless of what it contends or does in that pro eeding. Even respondent, however, appears to recognize the undesirability of this result, and that such an interpretation has no support in the language or history of the statute.20 III 28 We conclude, in sum, that the Clayton Act's statute of limitations was not tolled, under § 5(i), by the filing of the Government's petition to intervene in the ICC proceeding. The judgment of the Court of Appeals is therefore vacated, and the case is remanded for further proceedings consistent with this opinion.21 29 It is so ordered. 30 Mr. Chief Justice BURGER, concurring. 31 I concur fully in the Court's opinion, but with great reluctance; in my view respondent is entitled to the award of treble damages ordered by the District Court. Given the Court's analysis of the legal issues involved here, the opinion today has no occasion to focus on Greyhound's egregious behavior toward Mt. Hood Stages—aimed at total destruction of a competitor. In the present case the jury found Greyhound not only to be in violation of the Sherman Act, but that it had fraudulently concealed its antitrust violations for more than a decade. Moreover, the Interstate Commerce Commission found that petitioner's actions were "inspired by a desire to stifle competition," in particular an intent to "injure or destroy" respondent. Mount Hood Stages, Inc., 104 M.C.C. 449, 461 (1968). Beyond its unlawful conduct, Greyhound took the added step of willfully disobeying the enforcement order of the United States District Court. In assessing criminal fines of $600,000 against Greyhound, the District Court, in a careful and detailed opinion, observed that Greyhound had "displayed a contemptuous reluctance to even commence compliance" with the court's order. United States v. Greyhound iCorp., 370 F.Supp. 881, 884 (N.D.Ill.1974). The District Court went on to note: 32 "In determining the extent of Greyhound's willful defiance of the order, the court recognizes Greyhound's record of purposeful non-action, protracted resistance, and emasculating interpretations of the order. The court also notes Greyhound's 'paper compliance' program and the reluctance with which Greyhound's top management became actively involved in securing compliance with the order. All of this suggests that Greyhound's failure to comply with certain parts of the order was deliberate." Ibid. 33 These determinations by the District Court were upheld in every respect by the Court of Appeals. United States v. Greyhound Corp., 508 F.2d 529 (CA7 1974). 34 There is no question that Mount Hood has been injured substantially by Greyhound. Moreover, were it not for the statute of limitations in the Clayton Act, respondent would clearly receive the full measure of treble damages. However I am bound to agree with the Court's opinion that the explicit language of § 5(i) of the Clayton Act, as amended, 15 U.S.C. § 16(i) (1976 ed.), precludes a statutory tolling of the statute of limitations. But as the Court carefully stresses, ante, at 337 n. 21, we expressly do not reach respondent's claim that the limitations period should be tolled on equitable grounds. The Court of Appeals explicitly left this question open, 555 F.2d 687, 701 n. 34, and the Court's opinion today leaves it free to re-examine the issue on remand.* 35 Since the Court's remand allows for an inquiry into the issue of equitable tolling, the Court of Appeals may apply traditional equitable principles in reaching its decision. See, e. g., 2 J. Pomeroy, Equity Jurisprudence 90-143 (5th ed.1941). 1 Section 5(i), as set forth in 15 U.S.C. § 16(i) (1976 ed.), provides: "Whenever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, but not including an action under section 15a of this title, the running of the statute of limitations in respect to every private or State right of action arising under said laws and based in whole or in part on any matter complained of in said proceeding shall be suspended during the pendency thereof and for one year thereafter: Provided, however, That whenever the running of the statute of limitations in respect of a cause of action arising under section 15 or 15c of this title is suspended hereunder, any action to enforce such cause of action shall be forever barred unless commenced either within the period of suspension or within four years after the cause of action accrued." 2 Section 4B, 69 Stat. 283, as amended, 15 U.S.C. § 15b (1976 ed.). It provides: "Any action to enforce any cause of action under sections 15, 15a, or 15c of this title shall be forever barred unless commenced within four years after the cause of action accrued. No cause of action barred under existing law on the effective date of this [Act] shall be revived by this [Act]." 3 Petitioner The Greyhound Corporation is a Delaware corporation that now is a diversified holding company owning, among other assets, all the issued and outstanding capital stock of petitioner Greyhound Lines, Inc., a California corporation. On December 31, 1963, The Greyhound Corporation discontinued its operation of scheduled common carrier bus service and transferred its motor carrier operating rights and properties to Greyhound Lines, Inc., App. 68; cf. Mt. Hood Stages, Inc., 104 M.C.C. 449, 465 (1968). For convenience, we refer to the two corporations collectively as "Greyhound." The formal transfer of rights and properties at the end of 1963 has no significance for purposes of this litigation. 4 Mt. Hood, however, withdrew its opposition to one of these. See id., at 452. 5 See 555 F.2d 687, 689 (C.A.9 1977). 6 This quoted material is from the opinion in the subsequent ICC proceeding instituted by Mt. Hood to reopen the eight acquisition proceedings. Mt. Hood Stages, Inc., 104 M.C.C., at 452. Greyhound's representations in those eight proceedings were so summarized. 7 This arrangement, initiated in 1949, provided for a through bus from San Francisco to Spokane, using Mt. Hood's bridge route between Klamath Falls and Biggs. The route was shorter by 110 miles and several hours than the all-Greyhound route via Portland. It provided better service to travelers and was profitable for both companies. 555 F.2d, at 689 n. 3. 8 Section 5(10) of the Interstate Commerce Act, as amended, 90 Stat. 63, 66, 49 U.S.C. § 5(10) (1976 ed.), provides: "The Commission may from time to time, for good cause shown, make such orders, supplemental to any order made under paragraph (1), (2), or (8), of this section, as it may deem necessary or appropriate." 9 Reiterating this point, the United States' petition stated: "Mt. Hood's grave allegations, whether true or false, as well as Greyhound's answer raise issues too serious and important to be disposed of summarily without a full adversary hearing in which allegation and denial can be put to the test of proof and cross-examination." App. 38. 10 Greyhound thereafter disobeyed the three-judge District Court's order and was adjudged in criminal contempt. Certain of its officers were adjudged in civil contempt. Fines aggregating $600,000 were imposed. United States v. Greyhound Corp., 363 F.Supp. 525 (N.D.Ill.1973), and 370 F.Supp. 881 (N.D.Ill.1974), aff'd, 508 F.2d 529 (C.A.7 1974). 11 The four-year period of limitations, as already noted, n. 2, supra, is contained in § 4B of the Clayton Act, 15 U.S.C. § 15b (1976 ed.). Tolling of the statute was essential to the award of all damages beyond the normal four-year period, that is, back beyond July 5, 1964, the date four years prior to the date of filing of the antitrust complaint. The sum of $5,194,617, after trebling, is involved in the tolling issue. 12 Other issues advanced by Greyhound in its petition for certiorari, review of which was not granted, were (a) whether § 5(12) of the Interstate Commerce Act, 49 U.S.C. § 5(12), and applicable antitrust principles permitted the treble-damages award by the jury's application of antitrust standards to acquisitions approved by the ICC and to the manner of operation of the acquired companies which is subject to the Commission's "exclusive and plenary" regulatory authority; (b) whether § 5(a) of the Clayton Act, as amended, 15 U.S.C. § 16(a) (1976 ed.), permitted the jury to base a finding of violation of the Sherman Act on consent decrees that expressly denied any antitrust violation and were entered before any testimony was taken; and (c) whether § 4B of the Clayton Act was tolled by fraudulent concealment. 13 The Government's petition to intervene is clearly distinguishable from the Federal Trade Commission's complaint that this Court, in Minnesota Mining & Mfg. Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 85 S.Ct. 1473, 14 L.Ed.2d 405 (1965), held to have tolled the Clayton Act's period of limitations under the predecessor of § 5(i), 15 U.S.C. § 16(b) (1964 ed.). There the FTC had filed a proceeding against the subsequent antitrust defendant under § 7 of the Clayton Act, 15 U.S.C. § 18 (1964 ed.). It was clear that the Government had actually charged the defendant with violations of the antitrust laws. The subsequent private antitrust action was directly based on the Government's allegations (which had resulted in a consent order). 381 U.S., at 313, 322-323, 85 S.Ct., at 1474, 1479-1480. The petition to intervene in question here is also distinguishable from cases (the correctness of which we do not address) holding the Clayton Act's period of limitations to have been tolled by § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45 (1976 ed.). See, e. g., Luria Steel & Trading Corp. v. Ogden Corp., 484 F.2d 1016 (C.A.3 1973), cert. denied, 414 U.S. 1158, 94 S.Ct. 917, 39 L.Ed.2d 110 (1974); Rader v. Balfour, 440 F.2d 469 (C.A. 7), cert. denied sub nom. Alpha Chi Omega v. Rader, 404 U.S. 983, 92 S.Ct. 444, 30 L.Ed.2d 367 (1971); Lippa's, Inc. v. Lenox, Inc., 305 F.Supp. 182 (Vt.1969). In each of these cases the Government actually had charged the defendant with, and sought the prevention or punishment of, specific anticompetitive conduct or antitrust violations, and a comparison of the Government's charges with the private litigant's compla nt showed that the private action was based on the matter complained of by the Government. 14 15 U.S.C. § 16(a) (1976 ed.). This section provides: "A final judgment or decree heretofore or hereafter rendered in any civil or c[r]iminal proceeding brought by or on behalf of the United States under the antitrust laws to the effect that a defendant has violated said laws shall be prima facie evidence against such defendant in any action or proceeding brought by any other party against such defendant under said laws or by the United States under section 15a of this title, as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto: Provided, That this section shall not apply to consent judgments or decrees entered before any testimony has been taken or to judgments or decrees entered in actions under section 15a of this title." 15 The original version of what is now § 5(i) provided: "Whenever any suit or proceeding in equity or criminal prosecution is instituted by the United States to prevent, restrain or punish violations of any of the antitrust laws, the running of the statute of limitations in respect of each and every private right of action arising under said laws and based in whole or in part on any matter complained of in said suit or proceeding shall be suspended during the pendency thereof." 38 Stat. 731. 16 President Wilson's message was quoted frequently during the course of the congressional debates to explain the purpose of the amendments. See, e. g., 51 Cong.Rec. 9090, 9488 (1914). 17 69 Stat. 283, now § 4B of the Clayton Act, as amended, 15 U.S.C. § 15b (1976 ed.). 18 69 Stat. 283. 19 See also H.R.Rep.No. 422, 84th Cong., 1st Sess., 8-9 (1955). 20 We do not mean to suggest that no rational distinctions concerning the Government's participation in regulatory proceedings can be drawn. It may be appropriate, in a given case, to apply § 5(i) where the Government's petition to intervene in fact charged a violation of the antitrust laws and demanded relief to prevent, restrain, or enjoin that violation. That, however, is not this case, and we expressly decline to offer any view as to the applicability vel non of § 5(i) in such a context. 21 As already stated, supra, at 329, we limited our grant of certiorari to the issue of the applicability of § 5(i). Respondent nevertheless argues that even if § 5(i) is not applicable, the Clayton Act's statute of limitations was tolled under equitable principles. Pursuant to the terms of our grant of certiorari, we see no compulsion—indeed, no justification—for our reaching this distinct issue. It will be for the Court of Appeals, on remand, to determine whether respondent may argue this point and, if so, its merits. Similarly, we express no view on what other issues may be raised on remand. * The authority of a federal court, sitting as a chancellor, to toll a statute of limitations on equitable grounds is a well-established part of our jurisprudence. See, e. g., American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974); Burnett v. New York Central R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965); Telegraphers v. Railway Express Agency, 321 U.S. 342, 347-349, 64 S.Ct. 582, 585-586, 88 L.Ed. 788 (1944). With respect to the limitations period of the Clayton Act, equitable tolling is particularly appropriate since the addition of a federal limitations period in the Act was essentially a "procedural" change in the statute. American Pipe, supra, 414 U.S., at 558 n. 29, 94 S.Ct., at 768.

78

57 L.Ed.2d 253 98 S.Ct. 2380 437 U.S. 340 OPPENHEIMER FUND, INC., et al., Petitioners,v.Irving SANDERS et al. No. 77-335. Argued Feb. 28-March 1, 1978. Decided June 19, 1978. Syllabus Respondents brought a class action under Fed.Rule Civ.Proc. 23(b)(3) on behalf of themselves and a class of purchasers against petitioners (including an open-end investment fund, its management corporation, and a brokerage firm), seeking to recover the amount by which the allegedly artificially inflated price respondents paid for fund shares exceeded their value. Respondents sought to require petitioners to help compile a list of the names and addresses of the members of the plaintiff class from records kept by the fund's transfer agent so that the individual notice required by Rule 23(c)(2) could be sent. The class proposed by respondents numbered about 121,000 persons, of whom about 103,000 still held shares, and, since 171,000 persons currently held shares, approximately 68,000 were not members of the class. To compile a list of the class members' names and addresses, the transfer agent's employees would have had to sort manually through many records, keypunch 150,000 to 300,000 computer cards, and create several new computer programs, all for an estimated cost of over $16,000. Respondents' proposed redefinition of the plaintiff class, opposed by petitioners, to include only those persons who bought fund shares during a specified period and who still held shares was rejected by the District Court as involving an arbitrary reduction in the class, but the court held that the cost of sorting out the list of class members was the petitioners' responsibility, while also rejecting respondents' proposal, opposed by petitioners, that the class notice be included in a regular fund mailing, because it would reach the 68,000 shareholders who were not class members. On petitioners' appeal, the Court of Appeals affirmed, holding that the federal discovery rules authorized the District Court to order petitioners to assist in compiling the class list and to bear the $16,000 expense incident thereto. Held: 1. Federal Rule Civ.Proc. 23(d), which empowers district courts to enter appropriate orders in the handling of class actions, not the discovery rules, is the appropriate source of authority for the District Court's order directing petitioners to help compile the list of class members. The information as to such members is sought to facilitate the sending of notice rather than to define or clarify issues in the case, as is the function of the discovery rules, and thus cannot be forced into the concept of relevancy reflected in Fed.Rule Civ.Proc. 26(b)(1), which permits discovery "regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." Pp. 350-356. 2. Where a defendant in a class action can perform one of the tasks necessary to send notice, such as identification, more efficiently than the representative plaintiff, the district court has discretion to order him to perform the task under Rule 23(d), and also has some discretion in allocating the cost of complying with such an order, although as a general rule the representative plaintiff should bear all costs relating to the sending of notice because it is he who seeks to maintain the suit as a class action. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732. Pp. 356-359. 3. Here, however, the District Court abuse its discretion in requiring petitioners to bear the expense of identifying class members and in not requiring respondents to pay the transfer agent, where respondents can obtain the information sought by paying the transfer agent the same amount that petitioners would have to pay, the information must be obtained to comply with respondents' obligation to provide notice to their class, and no special circumstances have been shown to warrant requiring petitioners to bear the expense. Pp. 359-364. (a) Petitioners' opposition to respondents' proposed redefinition of the class and to the method of sending notice is an insufficient reason for requiring petitioners to pay the transfer agent, because it is neither fair nor good policy to penalize a defendant for prevailing on an argument against a representative plaintiff's proposals. Pp. 360-361. (b) Nor is the fact that $16,000 is a "relatively modest" sum in comparison to the fund's assets a sufficient reason for requiring petitioners to bear the expenses, since the proper test is normally whether the cost is substantial, not whether it is "modest" in relation to ability to pay. Pp. 361-362. (c) The District Court's order cannot be justified on the ground that part of the records in question were kept on computer tapes rather than in less modern forms. P. 362. (d) And petitioners should not be required to bear the identification expense simply because they are alleged to have breached a fiduciary duty to respondents and their class, since a bare allegation of wrongdoing, whether by breach of fiduciary duty or otherwise, is not a fair reason for requiring a defendant to undertake financial burdens and risks to further a plaintiff's case. P. 363. 558 F.2d 636, reversed and remanded. Donald N. Ruby, New York City, for respondents. Alfred Berman, New York City, for petitioners; Norman L. Greene, Gerald Gordon, John F. Davidson, and Daniel E. Kirsch, New York City, on the briefs. Mr. Justice POWELL delivered the opinion of the Court. 1 Respondents are the representative plaintiffs in a class action brought under Fed.Rule Civ.Proc. 23(b)(3). They sought to require petitioners, the defendants below, to help compile a list of the names and addresses of the members of the plaintiff class from records kept by the transfer agent for one of petitioners so that the individual notice required by Rule 23(c)(2) could be sent. The Court of Appeals for the Second Circuit held that the federal discovery rules, Fed.Rules Civ.Proc. 26-37, authorize the District Court to order petitioners to assist in compiling the list and to bear the $16,000 expense incident thereto. We hold that Rule 23(d), which concerns the conduct of class actions, not the discovery rules, empowers the District Court to direct petitioners to help compile such a list. We further hold that, although the District Court has some discretion in allocating the cost of complying with such an order, that discretion was abused in this case. We therefore reverse and remand. 2 * Petitioner Oppenheimer Fund, Inc. (Fund), is an open-end diversified investment fund registered under the Investment Company Act of 1940, 15 U.S.C. § 80a-1 et seq. (1976 ed.). The Fund and its agents sell shares to the public at their net asset value plus a sales charge. Petitioner Oppenheimer Management Corp. (Management Corp.) manages the Fund's investment portfolio. Pursuant to an investment advisory agreement, the Fund pays Management Corp. a fee which is computed in part as a percentage of the Fund's net asset value. Petitioner Oppenheimer & Co. is a brokerage firm that owns 82% of the stock of Management Corp., including all of its voting stock. The individual petitioners are directors or officers of the Fund or Management Corp., or partners in Oppenheimer & Co. 3 Respondents bought shares in the Fund at various times in 1968 and 1969. On March 26, May 12, and June 18, 1969, they filed three separate complaints, later consolidated, which alleged that the petitioners, other than the Fund, had violated federal securities laws in 1968 and 1969 by issuing or causing to be issued misleading prospectuses and annual reports about the Fund.1 In particular, respondents alleged that the prospectuses and reports failed to disclose the fact that the Fund invested in "restricted" securities,2 the risks involved in such investments, and the method used to value the restricted securities on the Fund's books. They also alleged that the restricted securities had been overvalued on the Fund's books, causing the Fund's net asset value, and thus the price of shares in the Fund, to be inflated artificially. On behalf of themselves and a class of purchasers, respondents sought to recover from petitioners, other than the Fund, the amount by which the price they paid for Fund shares exceeded the shares' value.3 4 In April 1973, respondents moved pursuant to Fed.Rule Civ.Proc. 23(b)(3) for an order allowing them to represent a class of plaintiffs consisting of all persons who bought shares in the Fund between March 28, 1968, and April 24, 1970.4 Relying on Eisen v. Carlisle & Jacquelin, 54 F.R.D. 565 (S.D.N.Y.1972), respondents also sought an order directing petitioners to pay for the notice to absent class members required by Fed.Rule Civ.Proc. 23(c)(2). On May 1, 1973, however, the Court of Appeals for the Second Circuit held that the District Court in Eisen erre in ordering the defendants to pay 90% of the cost of notifying members of a Rule 23(b)(3) plaintiff class. Eisen v. Carlisle & Jacquelin (Eisen III), 479 F.2d 1005. Respondents thereupon deposed employees of the Fund's transfer agent, which kept records from which the class members' names and addresses could be derived, in order to develop information relevant to issues of manageability, identification, and methods of notice upon which the District Court would have to pass. These employees' statements, together with information supplied by the Fund, established that the class proposed by respondents numbered about 121,000 persons. About 103,000 still held shares in the Fund, while some 18,000 had sold their shares after the end of the class period. Since about 171,000 persons currently held shares in the Fund, it appeared that approximately 68,000 current Fund shareholders were not members of the class. 5 The transfer agent's employees also testified that in order to compile a list of the class members' names and addresses, they would have to sort manually through a considerable volume of paper records, keypunch between 150,000 and 300,000 computer cards, and create eight new computer programs for use with records kept on computer tapes that either are in existence or would have to be created from the paper records. See App. 163-212. The cost of these operations was estimated in 1973 to exceed $16,000. 6 Having learned all this, and in the face of Eisen III, respondents moved to redefine the class to include only those persons who had bought Fund shares between March 28, 1968, and April 24, 1970, and who still held shares in the Fund. Respondents also proposed that the class notice be inserted in one of the Fund's periodic mailings to its current shareholders, and they offered to pay the cost of printing and inserting the notices, which was about $5,000. App. 146. These proposals would have made it unnecessary to compile a separate list of the members of the redefined class in order to notify them. Petitioners opposed redefinition of the class on the ground that it arbitrarily would exclude about 18,000 former Fund shareholders who had bought shares during the relevant period, possibly to their prejudice. They also opposed including the class notice in a Fund mailing which would reach the 68,000 current shareholders who were not class members. This, petitioners feared, could set off a wave of selling to the detriment of the Fund.5 7 On May 15, 1975, more than six years after the litigation began, the District Court ruled on the motions then pending. Sanders v. Levy, 20 Fed.Rules Serv.2d 1218 (SDNY 1975). The court first held that the suit met the requirements for class-action treatment under Rule 23(b)(3). Id., at 1220-1221. It then rejected respondents' proposed redefinition of the class because it "would involve an arbitrary reduction in the class." Id., at 1221.6 At the same time, however, the court held that "the cost of culling out the list of class members . . . is the responsibility of defendants." Ibid. The only explanation given was that "the expense is relatively m dest and it is defendants who are seeking to have the class defined in a manner which appears to require the additional expense." Ibid. Finally, the court rejected respondents' proposal that the class notice be included in a regular Fund mailing. Noting that the mailing would reach many current Fund shareholders who were not members of the class, the District Judge said that his "solution to this problem starts with my earlier ruling that it is the responsibility of defendants to cull out from their records a list of all class members and provide this list to plaintiffs. Plaintiffs will then have the responsibility to prepare the necessary notice and mail it at their expense." Id., at 1222.7 8 On petitioners' appeal, a divided panel of the Court of Appeals reversed the District Court's order insofar as it required petitioners to bear the cost required for the transfer agent to compile a list of the class members' names and addresses. Sanders v. Levy, 558 F.2d 636 (C.A.2 1976).8 The majority thought that Eisen IV, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), which had affirmed Eisen III in pertinent part, required respondents to pay this cost because the identification of class members is an integral step in the process of notifying them. 558 F.2d, at 642.9 On rehearing en banc, however, the Court of Appeals reversed the panel's decision and affirmed the District Court's order by a vote of seven to three. Id., at 646.10 It thought that Eisen IV did not control this case because respondents might obtain the class members' names and addresses under the federal discovery rules, Fed.Rules Civ.Proc. 26-37. The en banc court further held that although Rule 26(c) protects parties from "undue burden or expense" in complying with discovery requests, the District Court did not abuse its discretion under that Rule in requiring petitioners to bear this expense. 558 F.2d, at 649-650. 9 By holding that the discovery rules apply to this case, the en banc court brought itself into conflict with the Court of Appeals for the Fifth Circuit, which recently had held: 10 "The time and expense of gathering [class members'] names and addresses is a necessary predicate to providing each with notice of the action's pendency without which the action may not proceed [citing Eisen IV ]. Viewed in this context, it becomes strikingly clear that rather than being controlled by the federal civil discovery rules, identification of absentee class members' names and addresses is part and parcel of rule 23(c)(2)'s mandate that the class members receive 'the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.' " In re Nissan Motor Corp. Antitrust Litigation, 552 F.2d 1088, 1102 (1977). 11 In the Fifth Circuit's view, Rule 23(d), which empowers district courts to enter appropriate orders in the handling of class actions, is the procedural device by which a district court may enlist the aid of a defendant in identifying class members to whom notice must be sent. The Nissan court found it unnecessary to decide whether Eisen IV requires a representative plaintiff always to bear the cost of identifying class members. Since the representative plaintiffs could perform the required search through the defendants' records as readily as the defendants themselves, and since the search had to be performed in order to advance the representative plaintiffs' case, they were required to perform it and thus to bear its cost. See 552 F.2d, at 1102-1103. 12 We granted certiorari in the instant case to resolve the conflict that thus has arisen and to consider the underlying cost-allocation problems. 434 U.S. 919, 98 S.Ct. 391, 54 L.Ed.2d 275 (1977). II 13 The issues in this case arise because of the notice requirement of Fed.Rule Civ.Proc. 23(c)(2), which provides in part: 14 "In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." 15 In Eisen IV, the Court held that the plain language of this Rule "requires that individual notice be sent to all class members who can be identified with reasonable effort." 417 U.S., at 177, 94 S.Ct., at 2152. The Court also found no authority for a district court to hold a preliminary hearing on the merits of a suit in order to decide which party should bear the cost required to prepare and mail the class notice. Id., at 177-178, 94 S.Ct., at 2152. Instead, it held: 16 "In the absence of any support under Rule 23, [the representative plaintiff's] effort to impose the cost of notice on [defendants] must fail. The usual rule is that a plaintiff must initially bear the cost of notice to the class. . . . Where, as here, the relationship between the parties is truly adversary, the plaintiff must pay for the cost of notice as part of the ordinary burden of financing his own suit." Id., at 178-179, 94 S.Ct., at 2153. 17 In Eisen IV, the defendants had offered to provide a list of many of the class members' names and addresses at their own expense in the first instance, if the representative plaintiff would prepare and mail individual notice to these class members.11 Eisen IV therefore did not present issues concerning either the procedure by w ich a representative plaintiff might require a defendant to help identify class members, or whether costs may be allocated to the defendant in such a case. The specific holding of Eisen IV is that where a representative plaintiff prepares and mails the class notice himself, he must bear the cost of doing so. 18 The parties in the instant case center much of their argument on the questions whether the discovery rules authorize a district court to order a defendant to help identify the members of a plaintiff class so that individual notice can be sent and, if so, which rule applies in this case. For the reasons stated in Part A below, we hold that Rule 23(d), not the discovery rules, is the appropriate source of authority for such an order. This conclusion, however, is not dispositive of the cost-allocation question. As we explain in Part B, we think that where a defendant can perform one of the tasks necessary to send notice, such as identification, more efficiently than the representative plaintiff, the district court has discretion to order him to perform the task under Rule 23(d). In such cases, the district court also has some discretion in allocating the cost of complying with its order. In Part C, however, we conclude that the district court abused its discretion in this case. A. 19 Although respondents' request resembles discovery in that it seeks to obtain information, we are convinced that it more properly is handled under Rule 23(d). The critical point is that the information is sought to facilitate the sending of notice rather than to define or clarify issues in the case. 20 The general scope of discovery is defined by Fed.Rule Civ.Proc. 26(b)(1) as follows: 21 "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." 22 The key phrase in this definition—"relevant to the subject matter involved in the pending action"—has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case. See Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 388, 91 L.Ed. 451 (1947).12 Consistently with the notice-pleading system established by the Rules, discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues. Id., at 500-501, 67 S.Ct. at 388. Nor is discovery limited to the merits of a case, for a variety of fact-oriented issues may arise during litigation that are not related to the merits.13 23 At the same time, "discovery, like all matters of procedure, has ultimate and necessary boundaries." Id., at 507, 67 S.Ct., at 392. Discovery of matter not "reasonably calculated to lead to the discovery of admissible evidence" is not within the scope of Rule 26(b)(1). Thus, it is proper to deny discovery of matter that is relevant only to claims or defenses that have been stricken,14 or to events that occurred before an applicable limitations period, unless the information sought is otherwise relevant to issues in the case.15 For the same reason, an amendment to Rule 26(b) was required to bring within the scope of discovery the existence and contents of insurance agreements under which an insurer may be liable to satisfy a judgment against a defendant, for that information ordinarily cannot be considered, and would not lead to information that could be considered, by a court or jury in deciding any issues.16 24 Respondents' attempt to obtain the class members' names and addresses cannot be forced into the concept of "relevancy" described above. The difficulty is that respondents do not seek this information for any bearing that it might have on issues in the case. See 558 F.2d, at 653 (en banc dissent).17 If respondents had sought the information because of its relevance to the issues, they would not have been willing, as they were, to abandon their request if the District Court would accept their proposed redefinition of the class and method of sending notice. Respondents argued to the District Court that they desired this information to enable them to send the class notice, and not for any other purpose. Taking them at their word, it would appear that respondents' request is not within the scope of Rule 26(b)(1).18 25 The en banc majority avoided holding that the class members' names and addresses are "relevant to the subject matter involved in the pending action" within the meaning of Rule 26(b)(1) simply because respondents need this information in order to send the class notice. Tacitly acknowledging that discovery must be aimed at illuminating issues in the case, the court instead hypothesized that there is "a potential issue in all [Rule 23(b)(3) class-action] litigation whether the required notice has properly been sent. A list of the names and addresses of the class members would of course be essential to the resolution of that issue." 558 F.2d, at 648. But aside from the fact that respondents themselves never pretended to be anticipating this "potential issue," it is apparent that the "potential issue" cannot arise until respondents already have obtained the very information they seek.19 Nor do we perceive any other "potential issues" that could bring respondents' request within the scope of legitimate discovery. In short, we do not think that the discovery rules are the right tool for this job.20 26 Rule 23, on the other hand, deals comprehensively with class actions, and thus is the natural place to look for authority for orders regulating the sending of notice. It is clear that Rule 23(d) vests power in the district court to order one of the parties to perform the tasks necessary to send notice.21 Moreover, district courts sometimes have found it appropriate to order a defendant, rather than a representative plaintiff, to perform tasks other than identification that are necessary to the sending of notice.22 Since identification simply is another task that must be performed in order to send notice, we agree with the Court of Appeals for the Fifth Circuit that Rule 23(d) also authorizes a district court in appropriate circumstances to require a defendant's cooperation in identifying the class members to whom notice must be sent.23 We therefore turn to a consideration of the circumstances in which such an order is a propriate and of how the cost of the defendant's complying with such an order should be allocated. B 27 Although the Fifth Circuit held that Rule 23(d), not the discovery rules, authorizes a district court to order a defendant to provide information needed to identify class members to whom notice must be sent, it also suggested that principles embodied in the discovery rules for allocating the performance of tasks and payment of costs might be relevant to a district court's exercise of discretion under Rule 23(d). See Nissan, 552 F.2d, at 1102. Petitioners and the en banc dissent, on the other hand, argue that Eisen IV always requires a representative plaintiff to pay all costs incident to sending notice, whether he or the defendant performs the required tasks. Eisen IV does not compel this latter conclusion, for it did not involve a situation where a defendant properly was ordered under Rule 23(d) to perform any of the tasks necessary to sending the notice. 28 The first question that a district court must consider under Rule 23(d) is which party should perform particular tasks necessary to send the class notice. The general rule must be that the representative plaintiff should perform the tasks, for it is he who seeks to maintain the suit as a class action and to represent other members of his class. In Eisen IV we noted the general principle that a party must bear the "burden of financing his own suit," 417 U.S., at 179, 94 S.Ct., at 2153. Thus ordinarily there is no warrant for shifting the cost of the representative plaintiff's performance of these tasks to the defendant. 29 In some instances, however, the defendant may be able to perform a necessary task with less difficulty or expense than could the representative plaintiff. In such cases, we think that the district court properly may exercise its disc etion under Rule 23(d) to order the defendant to perform the task in question. As the Nissan court recognized, in identifying the instances in which such an order may be appropriate, a rough analogy might usefully be drawn to practice under Rule 33(c) of the discovery rules.24 Under that Rule, when one party directs an interrogatory to another party which can be answered by examination of the responding party's business records, "it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to" examine and copy the records, if the burden of deriving the answer would be "substantially the same" for either party. Not unlike Eisen IV, this provision is intended to place the "burden of discovery upon its potential benefitee."25 The holding of Nissan represents application of a similar principle, for when the court concluded that the representative plaintiffs could derive the names and addresses of the class members from the defendants' records with substantially the same effort as the defendants, it required the representative plaintiffs to perform this task and hence to bear the cost. See supra, at 348. But where the burden of deriving the answer would not be "substantially the same," and the task could be performed more efficiently by the responding party, the discovery rules normally require the responding party to derive the answer itself.26 30 In those cases where a district court properly decides under Rule 23(d) that a defendant rather than the representative plaintiff should perform a task necessary to send the class notice, the question that then will arise is which party should bear the expense. On one hand, it may be argued that this should be borne by the defendant because a party ordinarily must bear the expense of complying with orders properly issued by the district court; but Eisen IV strongly suggests that the representative plaintiff should bear this expense because it is he who seeks to maintain the suit as a class action. In this situation, the district court must exercise its discretion in deciding whether to leave the cost of complying with its order where it falls, on the defendant, or place it on the party that benefits, the representative plaintiff. Once again, a rough analogy might usefully be drawn to practice under the discovery rules. Under those rules, the presumption is that the responding party must bear the expense of complying with discovery requests, but he may invoke the district court's discretion under Rule 26(c) to grant orders protecting him from "undue burden or expense" in doing so, including orders conditioning discovery on the requesting party's payment of the costs of discovery. The analogy necessarily is imperfect, however, because in the Rule 23(d) context, the defendant's own case rarely will be advanced by his having performed the tasks. Cf. n. 30, infra. Thus, one of the reasons for declining to shift costs under Rule 26(c) usually will be absent in the Rule 23(d) context.27 For this reason, a istrict court exercising its discretion under Rule 23(d) should be considerably more ready to place the cost of the defendant's performing an ordered task on the representative plaintiff, who derives the benefit, than under Rule 26(c). In the usual case, the test should be whether the expense is substantial, rather than, as under Rule 26(c), whether it is "undue." 31 Nevertheless, in some instances, the expense involved may be so insubstantial as not to warrant the effort required to calculate it and shift it to the representative plaintiff. In Nissan, for example, the court did not find it necessary to direct the representative plaintiffs to reimburse the defendants for the expense of producing their files for inspection. In other cases, it may be appropriate to leave the cost where it falls because the task ordered is one that the defendant must perform in any event in the ordinary course of its business.28 Although we do not attempt to catalogue the instances in which a district court might be justified in placing the expense on the defendant, we caution that courts must not stray too far from the principle underlying Eisen IV that the representative plaintiff should bear all costs relating to the sending of notice because it is he who seeks to maintain the suit as a class action. C 32 In this case, we think the District Court abused its discretion in requiring petitioners to bear the expense of identifying class members. The records containing the needed information are kept by the transfer agent, not petitioners. Since petitioners apparently have the right to control these records and since the class members can be identified only by reference to them, the District Court acted within its authority under Rule 23(d) in ordering petitioners to direct the transfer agent to make the records available to respondents. The preparation of the desired list requires, as indicated above, the manual sorting out of names and addresses from old records maintained on paper, the keypunching of up to 300,000 computer cards, and the creation of new computer programs for use with extant tapes and tapes that would have to be created from the paper records. It appears that neither petitioners nor respondents can perform these tasks, for both sides assume that the list can be generated only by hiring the services of a third party, the transfer agent, for a sum exceeding $16,000. As the expense of hiring the transfer agent would be no greater for respondents, who seek the information, than for petitioners, respondents should bear the expense. See Nissan, 552 F.2d, at 1102-1103.29 33 The District Court offered two reasons why petitioners should pay the transfer agent, but neither is persuasive. First, the court thought that petitioners should bear this cost because it was their opposition to respondents' proposed redefinition of the class and method of sending notice that made it necessary to incur the cost. A district court necessarily has some discretion in deciding the composition of a proper class and how notice should be sent. Nor is it improper for the court to consider the potential impact that rulings on these issues may have on the expense that the representative plaintiff must bear in order to send the notice. See Eisen IV, 417 U.S., at 179 n. 16, 94 S.Ct., at 2153 n. 16; id., at 179-181, 94 S.Ct., at 2153-2154 (Douglas, J., dissenting in part). But it is neither fair nor good policy to penalize a defendant for prevailing on an argument against a representative plaintiff's proposals. If a defendant's argument has merit, it should be accepted regardless of his willingness to bear the extra expense that its acceptance would require. Otherwise, a defendant may be discouraged from advancing arguments entirely appropriate to the protection of his rights or the rights of absent class members. 34 The potential for inequity appears to have been realized in this case. The District Court seems to have agreed with petitioners that respondents' proposed redefinition of the class was improper.30 Otherwise its actions would be difficult to fathom, for its rejection of the proposed redefinition increased the cost to respondents as well as petitioners.31 By the same token, if the District Court believed that sending the notice to current Fund shareholders who were not class members might harm the Fund, it should not have required the Fund to buy protection from this threat. Yet it must have believed that the Fund would be harmed, for otherwise there was no reason to reject respondents' proposal and thus increase the cost that respondents themselves would have to bear. For these reasons, we hold that the District Court erred in linking the questions of class definition and method of notice to the cost-allocation question. 35 The second reason advanced by the District Court was that $16,000 is a "relatively modest" sum, presumably in comparison to the Fund's total assets, which exceed $500 million. Although in some circumstances the ability of a party to bear a burden may be a consideration, the test in this respect normally should be whether the cost is substantial; not whether it is "modest" in relation to ability to pay. In the context of a lawsuit in which the defendants deny all liability, the imposition on them of a threshold expense of $16,000 to enable the plaintiffs to identify their own class hardly can be viewed as an insubstantial burden. Cf. Eisen IV, supra, at 176, 94 S.Ct., at 2151. As the expenditure would benefit only respondents, we think that the amount of money involved here would cut strongly against the District Court's holding, even if the principle of Nissan did not control. 36 The panel dissent and the en banc majority suggested several additional reasons to justify the District Court's order, none of which we find persuasive. Both opinions suggest that the fact that part of these records are kept on computer tapes justifies imposing a greater burden on petitioners than might be imposed on a party whose records are kept in another form. Thus, the panel dissent warned that potential defendants may be tempted to use computers "irretrievably [to bury] information to immunize business activity from later scrutiny," 558 F.2d, at 645 n. 1, and the en banc majority argued that even where no bad motive is present, "complex electronic processes may be required to extract information which might have been obtainable through a minimum of effort had different systems been used." Id., at 649. 37 We do not think these reasons justify the order in this case. There is no indication or contention that these petitioners have acted in bad faith to conceal information from respondents. In addition, although it may be expensive to retrieve information stored in computers when no program yet exists for the particular job, there is no reason to think that the same information could be extracted any less expensively if the records were kept in less modern forms. Indeed, one might expect the reverse to be true, for otherwise computers would not have gained such widespread use in the storing and handling of information. Finally, the suggestion that petitioners should have used "different systems" to keep their records borders on the frivolous. Apart from the fact that no one has suggested what "different systems" petitioners should have used, we do not think a defendant should be penalized for not maintaining his records in the form most convenient to some potential future litigants whose identity and perceived needs could not have been anticipated. See id., at 654 (en banc dissent). 38 Respondents also contend that petitioners should be required to bear the identification expense because they are alleged to have breached a fiduciary duty to respondents and their class. See also id., at 645-646 (panel dissent). Although we had no occasion in Eisen IV to consider this argument, see 417 U.S., at 178, and n. 15, 94 S.Ct., at 2152, and n. 15, suggestions to this effect have met with trenchant criticism elsewhere.32 A bare allegation of wrongdoing, whether by breach of fiduciary duty or otherwise, is not a fair reason for requiring a defendant to undertake financial burdens and risks to further a plaintiff's case. Nor would it be in the interests of the class of persons to whom a fiduciary duty is owed to require them, through the fiduciary, to help finance every suit by one of their number that alleges a breach of fiduciary duty, without regard to whether the suit has any merit. III 39 Given that respondents can obtain the information sought here by paying the transfer agent the same amount that petitioners would have to pay, that the information must be obtained to comply with respondents' obligation to provide notice to their class, and that no special circumstances have been shown to warrant requiring petitioners to bear the expense, we hold that the District Court abused its discretion in not requiring respondents to pay the transfer agent to identify the members of their own class. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. 40 It is so ordered. 1 The complaints alleged violations of the Securities Act of 1933, 15 U.S.C. § 77a et seq. (1976 ed.), the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq. (1976 ed.), the Investment Company Act of 1940, 15 U.S.C. § 80a-1 et seq. (1976 ed.), and rules promulgated under these Acts. They also alleged pendent state-law claims of fraud and breach of fiduciary duty. 2 "Restricted" securities are "securities acquired directly or indirectly from the issuer thereof, or from an affiliate of such issuer, in a transaction or chain of transactions not involving any public offering . . .." 17 CFR § 230.144(a)(3) (1977). The public sale or distribution of such securities is restricted under the Securities Act of 1933 until the securities are registered or an exemption from registration becomes available. See 15 U.S.C. §§ 77d, 77e (1976 ed.). 3 Later in the proceedings respondents' counsel estimated that the average recovery per class member would be about $15, and that the aggregate recovery might be $11/2 million. In a separate count of their complaints, respondents also sought derivative relief on behalf of the Fund to recover excessive management fees paid by the Fund to Management Corp. as a result of the Fund's allegedly inflated net asset value. 4 Petitioners denied the material allegations of the complaints. In addition, they alleged a setoff against respondents and their class to the extent that the price paid by the Fund to redeem shares had exceeded their value. The non-Fund petitioners also alleged that if they were liable to respondents and their class for overvaluation of Fund shares, then the Fund would be liable to them for excess amounts received by the Fund as a result of the overvaluation. 5 Petitioners submitted the sworn affidavit of Robert Galli, Secretary of the Fund and Administrative Vice President and Secretary of Management Corp., which stated that this was a real possibility in light of "the current loss of investor confidence in the stock market and the uncertain conditions under which that market exists at this time." App. 130-131. 6 The District Court also rejected a proposal by petitioners to set April 25, 1969, as the closing date of the class period, holding that respondents had raised triable claims of misrepresentations after that date. 20 Fed.Rules Serv.2d, at 1221-1222. 7 The court subsequently modified this order to allow the notice to class members who still were Fund shareholders to be inserted in the envelopes of a periodic Fund mailing, "provided that the notices are sent only to class members and that plaintiffs pay in full the Fund's extra costs of mailing, including the costs of segregating the envelopes going to the class members from the envelopes going to other Fund shareholders." At the same time, the court held that the Fund should bear the identification costs in the first instance, "without prejudice to the right of this defendant, at the conclusion of the action, to make whatever claim it would be legally entitled to make regarding reimbursement by another party." The court denied the Fund's request that respondents be required to post bond for the identification costs. 8 All three members of the panel agreed that the order allocating the expense of identification was appealable under the collateral-order doctrine of Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). 558 F.2d, at 638-639; id., at 643 (Hays, J., dissenting in part). We agree. See Eisen v. Carlisle & Jacquelin (Eisen IV), 417 U.S. 156, 171-172, 94 S.Ct. 2140, 2149-2150, 40 L.Ed.2d 732 (1974). The panel also unanimously affirmed the District Court's ruling that the suit could proceed as a class action. 558 F.2d, at 642-643; id., at 643 (Hays, J., dissenting in part). This issue is not before us. 9 The panel majority also suggested that the Fund should not be required to bear this expense because it, unlike the other petitioners, was not named as a defendant in the class-action portion of this suit. See id., at 640. The Fund itself, which is in the position of a defendant because it ultimately may be liable for any damages that respondents and their class recover, see n. 4, supra, does not argue in this Court that it should not bear the expense because it is not a formal defendant. We therefore do not rely on any distinction that might be drawn between the Fund and the other petitioners in this respect. 10 District Judge Palmieri, the author of the panel majority opinion, did not participate in the rehearing en banc. 11 See App. in Eisen v. Carlisle & Jacquelin, O.T.1973, No. 73-203, pp. 184-185. 12 "[T]he court should and ordinarily does interpret 'relevant' very broadly to mean matter that is relevant to anything that is or may become an issue in the litigation." 4 J. Moore, Federal Practice ¶ 26.56[1], p. 26-131 n. 34 (2d ed. 1976). 13 For example, where issues arise as to jurisdiction or venue, discovery is available to ascertain the facts bearing on such issues. See Id., ¶ 26.56[6]; Note, The Use of Discovery to Obtain Jurisdictional Facts, 59 Va.L.Rev. 533 (1973). Similarly, discovery often has been used to illuminate issues upon which a district court must pass in deciding whether a suit should proceed as a class action under Rule 23, such as numerosity, common questions, and adequacy of representation. See Annot., Discovery for Purposes of Determining Whether Class Acti n Requirements Under Rule 23(a) and (b) of Federal Rules of Civil Procedure Are Satisfied, 24 A.L.R.Fed. 872 (1975). 14 See, e. g., United States v. 416.81 Acres of Land, 514 F.2d 627, 632 (C.A.7 1975); Bourget v. Government Employees Ins. Co., 313 F.Supp. 367, 372-373 (Conn.1970), reversed on other grounds, 456 F.2d 282 (C.A.2 1972). 15 See 4 J. Moore, Federal Practice ¶ 26.56[1], pp. 26-126 to 26-128 (2d ed. 1976), and cases there cited. 16 Before Rule 26(b)(2) was added in 1970, many courts held that such agreements were not within the scope of discovery, although other courts, swayed by the fact that revelation of such agreement tends to encourage settlements, held otherwise. See Advisory Committee's Notes on 1970 Amendment to Fed.Rule Civ.Proc. 26, 28 U.S.C. App., p. 7777; 4 J. Moore, Federal Practice ¶ 26.62[1] (2d ed. 1976). The Advisory Committee appears to have viewed this amendment as changing rather than clarifying the Rules, for it stated: "[T]he provision makes no change in existing law on discovery of indemnity agreements other than insurance agreements by persons carrying on an insurance business." 28 U.S.C. App., p. 7778 (emphasis supplied). 17 This difficulty may explain why the District Court, after calling for briefs on the question whether the discovery rules applied, see Brief for Respondents 10 n. 4, did not expressly rely on those rules. See also Note, Allocation of Identification Costs in Class Actions: Sanders v. Levy, 91 Harv.L.Rev. 703, 708-709 (1978) (distinguishing between "information . . . sought solely to provide adequate notice" and "valid discovery"). In deciding whether a request comes within the discovery rules, a court is not required to blind itself to the purpose for which a party seeks information. Thus, when the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied. See Mississippi Power Co. v. Peabody Coal Co., 69 F.R.D. 558, 565-568 (S.D.Miss.1976); Econo-Car International, Inc. v. Antilles Car Rentals, Inc., 61 F.R.D. 8, 10 (V.I. 1973), reversed on other grounds, 499 F.2d 1391 (C.A.3 1974). Likewise, discovery should e denied when a party's aim is to delay bringing a case to trial, or embarrass or harass the person from whom he seeks discovery. See United States v. Howard, 360 F.2d 373, 381 (C.A.3 1966); Balistrieri v. Holtzman, 52 F.R.D. 23, 24-25 (E.D.Wis.1971). See also n. 20, infra. 18 Respondents contend that they should be able to obtain the class members' names and addresses under the discovery rules because it is "well settled that [a] plaintiff is entitled to conduct discovery with respect to a broad range of matters which pertain to the maintenance of a class action under Rule 23." Brief for Respondents 25 n. 17; see n. 13, supra. The difference between the cases relied on by respondents and this case is that respondents do not seek information because it may bear on some issue which the District Court must decide, but only for the purpose of sending notice. 19 Until respondents obtain the information and send the class notice, no issue can arise as to whether it was sent "properly." 20 We do not hold that class members' names and addresses never can be obtained under the discovery rules. There may be instances where this information could be relevant to issues that arise under Rule 23, see n. 13, supra, or where a party has reason to believe that communication with some members of the class could yield information bearing on these or other issues. Respondents make no such claims of relevance, however, and none is apparent here. Moreover, it may be doubted whether any of these purposes would require compilation of the names and addresses of all members of a large class. See Berland v. Mack, 48 F.R.D. 121, 126 (S.D.N.Y.1969). There is a distinction in principle between requests for identification of class members that are made to enable a party to send notice and requests that are made for true discovery purposes. See n. 17, supra. 21 Although Rule 23(c)(2) states that "the court shall direct" notice to class members, it commonly is agreed that the court should order one of the parties to perform the necessary tasks. See Frankel, Some Preliminary Observations Concerning Civil Rule 23, 43 F.R.D. 39, 44 (1968); Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv.L.Rev. 356, 398 n. 157 (1967). Rule 23(d) provides that in the conduct of a class action, "the court may make appropriate orders: . . . (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct . . .; [and] (5) dealing with similar procedural matters." The Advisory Committee apparently contemplated that the court would make orders drawing on the authority of either Rule 23(d)(2) or 23(d)(5) in order to provide the notice required by Rule 23(c)(2), for its note to Rule 23(d)(2) states THAT "UNDER SUBDIVISION (C)(2), NOTICE MUST BE ORDERED . . . ." adviSory Committee's Notes to Fed.Rule Civ.Proc. 23, 28 U.S.C. App., p. 7768 (emphasis supplied). 22 Thus, a number of courts have required defendants in Rule 23(b)(3) class actions to enclose class notices in their own periodic mailings to class members in order to reduce the expense of sending the notice, as respondents asked the District Court in this case to do. See, e. g., Ste. Marie v. Eastern R. Assn., 72 F.R.D. 443, 450 n. 2 (S.D.N.Y.1976); Gates v. Dalton, 67 F.R.D. 621, 633 (E.D.N.Y.1975); Popkin v. Wheelabrator-Frye, Inc., 20 Fed.Rules Serv.2d 125, 130 (E.D.N.Y.1975). See also Eisen IV, 417 U.S., at 180 n. 1, 94 S.Ct., at 2154 n. 1 (Douglas, J., dissenting in part). 23 Our conclusion that Rule 23(d), not the discovery rules, is the appropriate source of authority is supported by the fact that, although a number of courts have ordered defendants to help identify class members in the course of ordering notice, few have relied on the discovery rules. See In re Nissan Motor Corp. Antitrust Litigation, 552 F.2d 1088, 1101-1102 (CA5 1977) (collecting cases). 24 The analogy to the discovery rules is not perfect, for those rules contemplate that discovery will proceed without judicial intervention unless a party moves for a protective order under Rule 26(c) or an order compelling discovery under Rule 37(a). Rule 23, on the other hand, contemplates that the district court routinely must approve the form of the class notice and order how it should be sent and who should perform the necessary tasks. 25 Advisory Committee's Notes on 1970 Amendment to Fed.Rule Civ.Proc. 33(c), 28 U.S.C. App., p. 7793, quoting D. Louisell, Modern California Discovery 125 (1963). 26 See Foster v. Boise-Cascade, Inc., 20 Fed.Rules Serv.2d 466, 470 (S.D.Tex.1975); Chrapliwy v. Uniroyal, Inc., 17 Fed.Rules Serv.2d 719, 722 (N.D.Ind.1973); Advisory Committee's Notes, supra, at 7793. 27 Cf., e. g., Hodgson v. Adams Drug Co., 15 Fed.Rules Serv.2d 828, 830 (R.I.1971); Adelman v. Nordberg Mfg. Co., 6 F.R.D. 383, 384 (E.D.Wis.1947); 4A J. Moore, Federal Practice 57 33.20, pp. 33-113 to 33-114 (2d ed. 1975). 28 Thus, where defendants have been directed to enclose class notices in their own periodic mailings and the additional expense has not been substantial, representative plaintiffs have not been required to reimburse the defendants for envelopes or postage. See cases cited in n. 22, supra. 29 See also Note, Allocation of Identification Costs in Class Actions, 66 Calif.L.Rev. 105, 115 (1978). 30 The District Court characterized the proposal as "arbitrary," Sanders v. Levy, 20 Fed.Rules Serv.2d 1218, 1221 (S.D.N.Y.1975), and stated that it ruled "in favor of" petitioners on this issue, id., at 1222. Although the court also suggested that petitioners opposed the redefinition because it would reduce the res judicata effect of the judgment, id., at 1221, petitioners themselves never made this argument. We also note that the representative plaintiff in Eisen IV argued, without success, that the defendants should pay part of the cost of notice because of the supposed res judicata benefits to them from class-action treatment. Reply Brief for Petitioner in Eisen v. Carlisle & Jacquelin, O.T.1973, No. 73-203, pp. 25-26. We did not think then, nor do we now, that an unwilling defendant should be force to purchase these "benefits." 31 Respondents were required to bear the additional expense at least of envelopes and postage for notice to class members who no longer held shares in the Fund. See n. 7, supra. 32 See, e. g., 558 F.2d, at 640-641 (panel majority); Popkin v. Wheelabrator-Frye, Inc., 20 Fed.Rules Serv.2d, at 129-130; Berland v. Mack, 48 F.R.D. 121, 131-132 (S.D.N.Y.1969); Note, 23 Kan.L.Rev. 309, 318-319 (1975).

89

437 U.S. 298 98 S.Ct. 2357 57 L.Ed.2d 221 UNITED STATES et al., Petitioner,v.LaSALLE NATIONAL BANK et al. No. 77-365. Argued March 29, 1978. Decided June 19, 1978. Syllabus Petitioner special agent of the Internal Revenue Service (IRS), in the process of investigating a taxpayer's tax liability, issued summonses to respondent bank under authority of § 7602 of the Internal Revenue Code of 1954 (which permits use of a summons "[f]or the purpose of ascertaining the correctness of any return, . . . determining the liability of any person for any internal revenue tax . . . , or collecting any such liability") to appear before the agent and produce files of certain land trusts, created for the benefit of the taxpayer. When respondent bank official appeared in response to the summonses but refused to produce the files, the United States and the agent petitioned the District Court for enforcement of the summonses. That court denied enforcement, finding that the summonses were not issued in good faith because they were issued "solely for the purpose of unearthing evidence of criminal conduct" by the taxpayer. The Court of Appeals affirmed. Held : The District Court erred in refusing to enforce the summonses, since its finding that the agent was investigating the taxpayer "solely for the purpose of unearthing evidence of criminal conduct" does not necessarily lead to the conclusion that the summonses were not issued in good-faith pursuit of the congressionally authorized purposes of § 7602. Pp. 307-319. (a) Congress has not categorized tax fraud investigation into civil and criminal components but has created a tax enforcement system in which criminal and civil elements are inherently intertwined, and any limitation on the good-faith use of an IRS summons must reflect this statutory premise. Pp. 308-311. (b) To enforce a summons under § 7602, the primary requirement is that it be issued before the IRS recommends to the Department of Justice the initiation of a criminal prosecution relating to the subject matter of the summons. This is a prophylactic rule designed to protect the standards of criminal litigation discovery and the role of the grand jury as a principal tool of criminal accusation. Pp. 311-313. (c) Enforcement of a summons is also conditioned upon the good-faith use of the summons authority by the IRS, which must not abandon its institutional responsibility to determine and to collect taxes and civil fraud penalties. That a single special agent intends only to gather evidence for a criminal investigation is not dispositive of the good faith of the IRS as an institution. Those resisting enforcement of a summons must disprove the actual existence of a valid civil tax determination or collection purpose by the IRS. Pp. 313-317. (d) On the record here respondents have not shown sufficient justification to preclude enforcement of the summonses in question, absent any recommendation to the Justice Department for criminal prosecution and absent any showing that the special age t already possessed all of the evidence sought in the summonses or that the IRS in an institutional sense had abandoned pursuit of the taxpayer's civil tax liability. Pp. 318-319. 554 F.2d 302, reversed with directions to remand. Lawrence G. Wallace, Washington, D.C., for petitioner. Matt P. Cushner, Chicago, Ill., for respondents. Mr. Justice BLACKMUN delivered the opinion of the Court. 1 This case is a supplement to our decision in Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971). It presents the issue whether the District Court correctly refused to enforce Internal Revenue Service summonses when it specifically found that the special agent who issued them "was conducting his investigation solely for the purpose of unearthing evidence of criminal conduct." 76-1 USTC ¶ 9407, p. 84,073, 37 AFTR 2d ¶ 76-582, p. 76-1240 (ND Ill.1976). 2 * In May 1975, John F. Olivero, a special agent with the Intelligence Division of the Chicago District of the Internal Revenue Service (hereinafter IRS or Service), received an assignment to investigate the tax liability of John Gattuso for his taxable years 1970-1972. App. 26-27, 33. Olivero testified that he had requested the assignment because of information he had received from a confidential informant and from an unrelated investigation. Id., at 35. The case was not referred to the IRS from another law enforcement agency, but the nature of the assignment, Olivero testified, was "[t]o investigate the possibility of any criminal violations of the Internal Revenue Code." Id., at 33. Olivero pursued the case on his own, without the assistance of a revenue agent.1 He received information about Gattuso from the Federal Bureau of Investigation as a result of the previous investigation. Id., at 36. He solicited and received additional data from the United States Attorney for the Northern District of Illinois, the Secret Service, the Department of Housing and Urban Development, the IRS Collection Division, and the Cosmopolitan National Bank of Chicago. Id., at 37-40. 3 Mr. Gattuso's tax returns for the years in question disclosed rental income from real estate. That property was held in Illinois land trusts2 by respondent LaSalle National Bank, as trustee, a fact revealed by land trust files collected by the IRS from banks. Id., at 27, 45. In order to determine the accuracy of Gattuso's income reports, Olivero proceeded to issue two summonses, under the authority of § 7602 of the Internal Revenue Code of 1954, 26 U.S.C. § 7602,3 to respondent bank. Each summons related to a separate trust and requested, among other things, that the bank as trustee appear before Olivero at a designated time and place and produce its "files relating to Trust No. 31544 [or No. 35396] including the Trust Agreement" for the period 1970 through 1972 and also "all deeds, options, correspondence, closing statements and sellers statements, escrows, and tax bills pertaining to all property held in the trust at any time during" that period. App. 9-16. Respondent Joseph W. Lang, a vice president of the bank, appeared in response to the summonses but, on advice of counsel, refused to produce any of he materials requested. Brief for Respondents 2. 4 The United States and Olivero, pursuant to §§ 7402(b) and 7604(a) of the Code, 26 U.S.C. §§ 7402(b) and 7604(a),4 then petitioned the United States District Court for the Northern District of Illinois for enforcement of the summonses. App. 5. This was on November 11, 1975. Olivero testified that when the petition was filed he had not determined whether criminal charges were justified and had not made any report or recommendation about the case to his superiors. Id., at 30. It was alleged in the petition and in an incorporated exhibit that the requested materials were necessary for the determination of the tax liability of Gattuso for the years in question and that the information contained in the documents was not in the possession of the petitioners. Id., at 7, 17-18. The District Court entered an order to show cause, id., at 19, and respondents answered through counsel, who also represented Gattuso. Id., at 20-22. 5 At the ensuing hearing and in a post-hearing brief, respondents argued that Olivero's investigation was "purely criminal" in nature. Id., at 82. Gregory J. Perry, a lawyer specializing in federal taxation and employed by the same law firm that filed the answer, testified that in June 1975 Olivero told him that the Gattuso inve tigation "was strictly related to criminal violations of the Internal Revenue Code." Id., at 52. Respondents conceded that they bore the burden of proving that enforcement of the summonses would abuse the court's process, but they contended that they did not have to show "that there is no civil purpose to the Summons." Id., at 87. Instead, they urged that their burden was to show that the summonses were not issued in good faith because "the investigation is solely for the purpose of gathering evidence for use in a criminal prosecution." Id., at 77. 6 The District Court agreed with respondents' contentions. Although at the hearing the court seemed to recognize "that in any criminal investigation there's always a probability of civil tax liability," id., at 61, it focused its attention on the purpose of Special Agent Olivero: 7 "I'll say now that I heard nothing in Agent Olivero's testimony to suggest that the thought of a civil investigation ever crossed his mind. 8 * * * * * 9 "Now, unless I find something in the in camera inspection [of the IRS case file] that gives more support to the Government position than the Agent's testimony did, it would be my conclusion that he was at all times involved in a criminal investigation, at least in his own mind."5 Id., at 62. 10 In its written memorandum, the District Court noted that Donaldson permitted the use of an IRS summons issued in good faith and prior to a recommendation for criminal prosecution. Relying on dictum in Reisman v. Caplin, 375 U.S. 440, 449, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964), however, the court said that it was an improper use of the summons "to serve it solely for the purpose of obtaining evidence for use in a criminal prosecution." 76-1 USTC, at 84,072, 37 AFTR 2d, at 76-1240. If, at the time of its issuance, the summons served this proscribed purpose, the court concluded, the absence of a formal criminal recommendation was irrelevant, the summons was not issued in good faith, and enforcement was precluded. The court then held: 11 "It is apparent from the evidence that Special Agent John F. Olivero in his investigative activities had focused upon the possible criminal activities of John Gattuso, and was conducting his investigation solely for the purpose of unearthing evidence of criminal conduct by Mr. Gattuso." Id., at 84,073, 37 AFTR 2d, at 76-1240. 12 The United States Court of Appeals for the Seventh Circuit affirmed. 554 F.2d 302 (1977). It concluded that the District Court correctly had included the issue of criminal purpose within the good-faith inquiry: 13 "[T]he use of an administrative summons solely for criminal purposes is a quintessential example of bad faith. . . . 14 * * * * * 15 "We note that the district court formulated its factual finding by use of the expression 'sole criminal purpose' rather than by a label such as 'bad faith.' We find no basis for reversible error in that verbal formulation. The district court grasped the vital core of Donaldson and rendered its factual finding consistently therewith." Id., at 309. 16 The Court of Appeals further decided that the District C urt had reached a factual, rather than a legal, conclusion when it found the summonses to have been issued solely for a criminal prosecution. Id., at 305. Appellate review, accordingly, was limited to application of the clearly-erroneous standard. Id., at 306. Although the Court of Appeals noted that Olivero had testified about the existence of a civil purpose for the investigation, the court said that "the record establishes that the district court did not believe him." Id., at 309. The appellate court could not reverse the trial court's judgment, it said, because it was "not left with a firm and definite conviction that a mistake [had] been made." Id., at 306. 17 Because of the importance of the issue in the enforcement of the internal revenue laws, and because of conflict among the Courts of Appeals concerning the scope of IRS summons authority under § 7602,6 we granted certiorari. 434 U.S. 996, 98 S.Ct. 632, 54 L.Ed.2d 489 (1977). II 18 In Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971), an IRS special agent issued summonses to a taxpayer's putative former employer and its accountant for the production of the employer's records of the taxpayer's employment and compensation. When the records were not forthcoming, the IRS petitioned for the enforcement of the summonses. The taxpayer intervened and eventually appealed the enforcement order. This Court addressed the taxpayer's contention that the summonses were unenforceable because they were issued in aid of an investigation that could have resulted in a criminal charge against the taxpayer. His argument there, see id., at 532, 91 S.Ct., at 543, was based on the following dictum in Reisman v. Caplin, 375 U.S., at 449, 84 S.Ct., at 513: 19 "[T]he witness may challenge the summons on any appropriate ground. This would include, as the circuits have held, the defenses that the material is sought for the improper purpose of obtaining evidence for use in a criminal prosecution, Boren v. Tucker, 239 F.2d 767, 772-773 . . . ." 20 In the light of the citation to Boren,7 the Court in Donaldson concluded that the dictum referred and was applicable to "the situation of a pending criminal charge or, at most, of an investigation solely for criminal purposes." 400 U.S., at 533, 91 S.Ct., at 544. 21 Discerning the meaning of the brief Reisman dictum, however, did not resolve for the Court the question posed by Donaldson. The validity of the summonses depended ultimately on whether they were among those authorized by Congress.8 Having reviewed the statutory scheme, 400 U.S., at 523-525, 9 S.Ct., at 538-540, the Court concluded that Congress had authorized the use of summonses in investigating potentially criminal conduct. The statutory history, particularly the use of summonses under the Internal Revenue Code of 1939,9 supported this conclusion, as did consistent IRS practice and decisions concerning effective enforcement of other comparable federal statutes.10 The Court saw no reason to force the Service to choose either to forgo the use of congressionally authorized summonses or to abandon the option of recommending criminal prosecutions to the Department of Justice.11 As long as the summonses were issued in good-faith pursuit of the congressionally authorized purposes, and prior to any recommendation to the Department for prosecution, they were enforceable. Id., at 536, 91 S.Ct., at 545. III 22 The present case requires us to examine the limits of the good-faith use of an Internal Revenue summons issued under § 7602. As the preceding discussion demonstrates, Donaldson does not control the facts now before us. There, the taxpayer had argued that the mere potentiality of criminal prosecution should have precluded enforcement of the summons. 400 U.S., at 532, 91 S.Ct., at 543. Here, on the other hand, the District Court found that Special Agent Olivero was investigating Gattuso "solely for the purpose of unearthing evidence of criminal conduct." 76-1 USTC, at 84,073, 37 AFTR 2d, at 76-1240. The question then becomes whether this finding necessarily leads to the conclusion that the summonses were not issued in good-faith pursuit of the congressionally authorized purposes of § 7602. A. 23 The Secretary of the Treasury and the Commissioner of Internal Revenue are charged with the responsibility of administering and enforcing the Internal Revenue Code. 26 U.S.C. §§ 7801 and 7802. Congress, by § 7601(a), has required the Secretary to canvass revenue districts to "inquire after and concerning all persons therein who may be liable to pay any internal revenue tax." With regard to suspected fraud, these duties encompass enforcement of both civil and criminal statutes. The willful submission of a false or fraudulent tax return may subject a taxpayer not only to criminal penalties under §§ 7206 and 7207 of the Code, but, as well, to a civil penalty, under § 6653(b), of 50% of the underpayment. And § 6659(a) provides that the civil penalty shall be considered as part of the tax liability of the taxpayer. Hence, when § 7602 permits the use of a summons "[f]or the purpose of ascertaining the correctness of any return, . . . determining the liability of any person for any internal revenue tax . . . , or collecting any such liability," it necessarily permits the use of the summons for examination of suspected tax fraud and for the calculation of the 50% civil penalty. In Donaldson, 400 U.S., at 535, 91 S.Ct., at 544, we clearly noted that § 7602 drew no distinction between the civil and the criminal aspects; that it "contains no restriction"; that the corresponding regulations were "positive"; and that there was no significance, "for civil as compared with criminal purposes, at the point of a special agent's appearance." The Court then upheld the use of the summonses even though fraudulent conduct carried the potential of criminal liability. The Court repea ed this emphasis in Couch v. United States, 409 U.S. 322, 326, 93 S.Ct. 611, 614, 34 L.Ed.2d 548 (1973): 24 "It is now undisputed that a special agent is authorized, pursuant to 26 U.S.C. § 7602, to issue an Internal Revenue summons in aid of a tax investigation with civil and possible criminal consequences." 25 This result is inevitable because Congress has created a law enforcement system in which criminal and civil elements are inherently intertwined. When an investigation examines the possibility of criminal misconduct, it also necessarily inquires about the appropriateness of assessing the 50% civil tax penalty.12 26 The legislative history of the Code supports the conclusion that Congress intended to design a system with interrelated criminal and civil elements. Section 7602 derives assertedly without change in meaning,13 from corresponding and similar provisions in §§ 3614, 3615, and 3654 of the 1939 Code. By § 3614(a) the Commissioner received the summons authority "for the purpose of ascertaining the correctness of any return or for the purpose of making a return where none has been made." Section 3615(b)(3) authorized the issuance of a summons "[w]henever any person who is required to deliver a monthly or other return of objects subject to tax delivers any return which, in the opinion of the collector, is erroneous, false, or fraudulent, or contains any undervaluation or understatement." Section 3654(a) stated the powers and duties of the collector: 27 "Every collector within his collection district shall see that all laws and regulations relating to the collection of internal revenue taxes are faithfully executed and complied with, and shall aid in the prevention, detection, and punishment of any frauds in relation thereto. For such purposes, he shall have power to examine all persons, books, papers, accounts, and premises . . . and to summon any person to produce books and papers . . . and to compel compliance with such summons in the same manner as provided in section 3615." 28 Under § 3616 punishment for any fraud included both fine and imprisonment. The 1939 Code, therefore, contemplated the use of the summons in an investigation involving suspected criminal conduct as well as behavior that could have been disciplined with a civil penalty.14 29 In short, Congress has not categorized tax fraud investigations into civil and criminal components. Any limitation on the good-faith use of an Internal Revenue summons must reflect this statutory premise. B 30 The preceding discussion suggests why the primary limitation on the use of a summons occurs upon the recommendation of criminal prosecution to the Department of Justice. Only at that point do the criminal and civil aspects of a tax fraud case begin to diverge. See United States v. Hodge & Zweig, 548 F.2d 1347, 1351 (CA9 1977); United States v. Billingsley, 469 F.2d 1208, 1210 (CA10 1972). We recognize, of course, that even upon recommendation to the Justice Department, the civil and criminal elements do not separate completely. The Government does not sacrifice its interest in unpaid taxes just because a criminal prosecution begins. Logically, then, the IRS could use its summons authority under § 7602 to uncover information about the tax liability created by a fraud regardless of the status of the criminal case. But the rule forbidding such is a prophylactic intended to safeguard the following policy interests. 31 A referral to the Justice Department permits criminal litigation to proceed. The IRS cannot try its own prosecutions. Such authority is reserved to the Department of Justice and, more particularly, to the United States Attorneys. 28 U.S.C. § 547(1). Nothing in § 7602 or its legislative history suggests that Congress intended the summons authority to broaden the Justice Department's right of criminal litigation discovery or to infringe on the role of the grand jury as a principal tool of criminal accusation. Accord, United States v. Morgan Guaranty Trust Co., 572 F.2d 36 (CA2 1978); United States v. Weingarden, 473 F.2d 454, 458-459 (CA6 1973); United States v. O'Connor, 118 F.Supp. 248, 250-251 (Mass.1953); see Donaldson v. United States, 400 U.S., at 536, 91 S.Ct., at 545; cf. Abel v. United States, 362 U.S. 217, 226, 80 S.Ct. 683, 690, 4 L.Ed.2d 668 (1960). The likelihood that discovery would be broadened or the role of the grand jury infringed is substantial if post-referral u e of the summons authority were permitted. For example, the IRS, upon referral, loses its ability to compromise both the criminal and the civil aspects of a fraud case. 26 U.S.C. § 7122(a). After the referral, the authority to settle rests with the Department of Justice. Interagency cooperation on the calculation of the civil liability is then to be expected and probably encourages efficient settlement of the dispute. But such cooperation, when combined with the inherently intertwined nature of the criminal and civil elements of the case, suggests that it is unrealistic to attempt to build a partial information barrier between the two branches of the executive. Effective use of information to determine civil liability would inevitably result in criminal discovery. The prophylactic restraint on the use of the summons effectively safeguards the two policy interests while encouraging maximum interagency cooperation.15 C 32 Prior to a recommendation for prosecution to the Department of Justice, the IRS must use its summons authority in good faith. Donaldson v. United States, 400 U.S., at 536, 91 S.Ct., at 545; United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-255, 13 L.Ed.2d 112 (1964). In Powell, the Court announced several elements of a good-faith exercise: 33 "[The Service] must show that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the Commissioner's possession, and that the administrative steps required by the Code have been followed . . . . [A] court may not permit its process to be abused. Such an abuse would take place if the summons had been issued for an improper purpose, such as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation." Ibid. (footnote omitted). 34 A number of the Courts of Appeals, including the Seventh Circuit in this case, 554 F.2d, at 309, have said that another improper purpose, which the Service may not pursue in good faith with a summons, is to gather evidence solely for a criminal investigation.16 The courts have based their conclusions in part on Donaldson § explanation of the Reisman dictum. The language of Donaldson, however, must be read in the light of the recognition o the interrelated criminal/civil nature of a tax fraud inquiry. For a fraud investigation to be solely criminal in nature would require an extraordinary departure from the normally inseparable goals of examining whether the basis exists for criminal charges and for the assessment of civil penalties. 35 In this case, respondents submit that such a departure did indeed occur because Special Agent Olivero was interested only in gathering evidence for a criminal prosecution. We disagree. The institutional responsibility of the Service to calculate and to collect civil fraud penalties and fraudulently reported or unreported taxes is not necessarily overturned by a single agent who attempts to build a criminal case. The review process over and above his conclusions is multilayered and thorough. Apart from the control of his immediate supervisor, the agent's final recommendation is reviewed by the district chief of the Intelligence Division, 26 CFR §§ 601.107(b) and (c) (1977); Internal Revenue Manual, ch. 9600, §§ 9621.1, 9622.1, 9623 (CCH 1977); see Donaldson v. United States, 400 U.S., at 534, 91 S.Ct., at 544. The Office of Regional Counsel also reviews the case before it is forwarded to the National Office of the Service or to the Justice Department. 26 CFR § 601.107(c) (1977); Internal Revenue Service Organization and Functions § 1116(3), 39 Fed.Reg. 11602 (1974); Internal Revenue Manual, ch. 9600, §§ 9624, 9631.2, 9631.4 (CCH 1977). If the Regional Counsel and the Assistant Regional Commissioner for Intelligence disagree about the disposition of a case, another complete review occurs at the national level centered in the Criminal Tax Division of the Office of General Counsel. Internal Revenue Service Organization and Functions § 1113(11) 22, 39 Fed.Reg. 11599 (1974); Internal Revenue Manual, ch. 9600, § 9651(1) (CCH 1977). Only after the officials of at least two layers of review have concurred in the conclusion of the special agent does the referral to the Department of Justice take place. At any of the various stages, the Service can abandon the criminal prosecution, can decide instead to assert a civil penalty, or can pursue both goals. While the special agent is an important actor in the process, his motivation is hardly dispositive. 36 It should also be noted that the layers of review provide the taxpayer with substantial protection against the hasty or overzealous judgment of the special agent. The taxpayer may obtain a conference with the district Intelligence Division officials upon request or whenever the chief of the Division determines that a conference would be in the best interests of the Government. 26 CFR § 601.107(b)(2) (1977); Internal Revenue Manual, ch. 9300, § 9356.1 (CCH 1977). If prosecution has been recommended, the chief notifies the taxpayer of the referral to the Regional Counsel. 26 CFR § 601.107(c) (1977); Internal Revenue Manual, ch. 9300, § 9355 (CCH 1977). 37 As in Donaldson, then, where we refused to draw the line between permissible civil and impermissible criminal purposes at the entrance of the special agent into the investigation, 400 U.S., at 536, 91 S.Ct., at 545, we cannot draw it on the basis of the agent's personal intent. To do so would unnecessarily frustrate the enforcement of the tax laws by restricting the use of the summons according to the motivation of a single agent without regard to the enforcement policy of the Service as an institution. Furthermore, the inquiry into the criminal enforcement objectives of the agent would delay summons enforcement proceedings while parties clash over, and judges grapple with, the thought processes of each investigator.17 See United States v. Morgan Guaranty Trust Co., 572 F.2d 36 (CA2 1978). This obviously is undesirable and unrewarding. As a result, the question whether an investigation has solely criminal purposes must be answered only by an examination of the institutional posture of the IRS. Contrary to the assertion of respondents, this means that those opposing enforcement of a summons do bear the burden to disprove the actual existence of a valid civil tax determination or collection purpose by the Service. After all, the purpose of the good-faith inquiry is to determine whether the agency is honestly pursuing the goals of § 7602 by issuing the summons. 38 Without doubt, this burden is a heavy one. Because criminal and civil fraud liabilities are coterminous, the Service rarely will be found to have acted in bad faith by pursuing the former. On the other hand, we cannot abandon this aspect of the good-faith inquiry altogether.18 We shall not countenance delay in submitting a recommendation to the Justice Department when there is an institutional commitment to make the referral and the Service merely would like to gather additional evidence for the prosecution. Such a delay would be tantamount to the use of the summons authority after the recommendation and would permit the Government to expand its criminal discovery rights. Similarly, the good-faith standard will not permit the IRS to become an information-gathering agency for other departments, including the Department of Justice, regardless of the status of criminal cases.19 D 39 In summary, then, several requirements emerge for the enforcement of an IRS summons.20 First, the summons must be issued before the Service recommends to the Department of Justice that a criminal prosecution, which reasonably would relate to the subject matter of the summons, be undertaken. Second, the Service at all times must use the summons authority in good-faith pursuit of the congressionally authorized purposes of § 7602. This second prerequisite requires the Service to meet the Powell standards of good faith. It also requires that the Service not abandon in an institutional sense, as explained in Parts III-A and III-C above, the pursuit of civil tax determination or collection. IV 40 On the record before us, respondents have not demonstrated sufficient justification to preclude enforcement of the IRS summonses. No recommendation to the Justice Department for criminal prosecution has been made. Of the Powell criteria, respondents challenge only one aspect of the Service's showing: They suggest that Olivero already may possess the evidence requested in the summonses. Brief for Respondents 16-19. Although the record shows that Olivero had uncovered the names and identities of the LaSalle National Bank land trusts, it does not show that the Service knows the value of the trusts or their income or the allocation of interests therein. Because production of the bank's complete records on the trusts reasonably could be expected to reveal part or all of this information, which would be material to the computation of Gattuso's tax liability, the Powell criteria do not preclude enforcement. Finally, the District Court refused enforcement because it found that Olivero's personal motivation was to gather evidence solely for a criminal prosecution. The court, however, failed to consider whether the Service in an institutional sense had abandoned its pursuit of Gattuso's civil tax liability.21 The Court of Appeals did not require that inquiry. On the record presently developed, we cannot conclude that such an abandonment has occurred. 41 The judgment of the Court of Appeals is therefore reversed with instructions to that court to remand the case to the District Court for further proceedings consistent with this opinion. 42 It is so ordered. 43 Mr. Justice STEWART, with whom The Chief Justice, Mr. Justice REHNQUIST, and Mr. Justice STEVENS join, dissenting. 44 This case is here only because of judicial misreadings of a passage in the Court's opinion in % Donaldson v. United States, 400 U.S. 517, 533, 91 S.Ct. 534, 543, 27 L.Ed.2d 580. That passage has been read by the federal courts, in this case and in others, to mean that a sum- mons under § 7602 of the Internal Revenue Code, 26 U.S.C. § 7602, is improper if issued in aid of an investigation solely for criminal purposes.1 Yet the statute itself contains no such limitation, and the Donaldson opinion in fact clearly stated that there are but two limits upon enforcement of such a summons: It must be "issued in good faith and prior to a recommendation for criminal prosecution." 400 U.S., at 536, 91 S.Ct., at 545. I adhere to that view. 45 The Court concedes that the task of establishing the "purpose" of an individual agent is "undesirable and unrewarding." Ante, at 316. Yet the burden it imposes today—to discover the "institutional good faith" of the entire Internal Revenue Service is, in my view, even less desirable and less rewarding. The elusiveness of "institutional good faith" as described by the Court can produce little but endless discovery proceedings and ultimate frustration of the fair administration of the Internal Revenue Code. In short, I fear that the Court's new criteria will prove wholly unworkable. 46 Earlier this year the Court of Appeals for the Second Circuit had occasion to deal with the issue now before us in the case of United States v. Morgan Guaranty Trust Co., 572 F.2d 36. Judge Friendly's perceptive opinion for his court in that case read the Donaldson opinion correctly: This Court was there "laying down an objective test, 'prior to a recommendation for criminal prosecution,' that would avoid a need for determining the thought processes of special agents; and . . . the 'good faith' requirement of the holding related to such wholly different matters as those mentioned in" the case of United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112.2 "Such a view would . . . be consistent with the only rationale that has ever been offered for preventing an otherwise legitimate use of an Internal Revenue Service third party summons, namely that Congress could not have intended the statute to trench on the power of the grand jury or to broaden the Government's right to discovery in a criminal case . . . ." 572 F.2d, at 41-42. 47 Instead of standing by the objective and comparatively bright-line test of Donaldson, as now clarified, the Court today further muddies the waters. It does not even attempt to identify the source of the requirements it now adds to enforcement proceedings under §§ 7402(b) and 7604(a) of the Code. These requirements are not suggested by anything in the statutes themselves, and nobody suggests that they derive from the Constitution. They are simply imposed by the Court from out of nowhere, and they seem to me unjustified, unworkable, and unwise. 48 I would reverse the judgment, not for further hearings in the District Court, but with instructions to order enforcement of the summons. 1 Frequently, a revenue agent of the IRS Audit Division will refer a case on which he is working to the Intelligence Division for investigation of possible fraud. After such a referral, and at other times, the special agent and the revenue agent work together. Because of the importance and sensitivity of the criminal aspects of the joint investigation, the special agent assumes control of the inquiry. See e. g., Internal Revenue Manual, ch. 4500, §§ 4563.431-4565.44 (CCH 1976 and 1978). As part of a planned reorganization, the IRS has announced its intention to redesignate the Audit Division and the Intelligence Division as the Examinations Division and the Criminal Enforcement Division, respectively. IRS News Release, Feb. 6, 1978. 2 Respondents describe an Illinois land trust as follows: "An Illinois land trust is a contract by which a trustee is vested with both legal and equitable title to real property and the interest of the beneficiary is considered personal property. Under this trust the beneficiary or any person designated in writing by the beneficiary has the exclusive power to direct or control the trustee in dealing with the title and the exclusive control of the management, operation, renting and selling of the trust property together with the exclusive right to the earnings, avails and proceeds of said property. Ill.Rev.Stat. ch. 29, § 8.31 (1971)." Brief for Respondents 1-2, n. 1. 3 Section 7602 reads: "For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, the Secretary or his delegate is authorized— "(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry; "(2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary or his delegate may deem proper, to appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and "(3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry." 4 Section 7402(b) states: "If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, or other data, the district court of the United States for the district in which such person resides or may be found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, or other data." Section 7604(a) reads: "If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, records, or other data, the United States district court for the district in which such person resides or is found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, records, or other data." 5 The District Court was aware of and recognized the Government's contention that the individual agent's motive in the investigation was not dispositive: "The COURT: . . . [U]nder your theory any criminal investigation would not really be one until they closed it because there was always a possibility of a civil liability. * * * * * "If that's the law, you're in trouble, Mr. Cushner [counsel for respondents]. * * * * * "I think it boils down to an issue of law so it's the cases really that I'm interested in plus any further clues I may find in the in camera inspection of the investigative file." App. 61-62. The court agreed to inspect the IRS investigative file in camera after it refused to permit respondents to inspect the file. Id., at 50-51, 61-62. 6 Compare United States v. Hodge & Zweig, 548 F.2d 1347, 1350-1351 (CA9 1977); United States v. Zack, 521 F.2d 1366, 1368 (CA9 1975); United States v. McCarthy, 514 F.2d 368, 374-375 (CA3 1975); United States v. Weingarden, 473 F.2d 454, 460 (CA6 1973); United States v. Wall Corp., 154 U.S.App.D.C. 309, 311, 475 F.2d 893, 895 (1972); and United States v. Billingsley, 469 F.2d 1208, 1210 (CA10 1972), with United States v. Morgan Guaranty Trust Co., 572 F.2d 36, 41-42 (CA2 1978); and United States v. Troupe, 438 F.2d 117, 119 (CA8 1971), regarding the conflict about whether the recommendation for criminal prosecution is dispositive of the so-called criminal purpose issue. Compare United States v. Hodge & Zweig, 548 F.2d, at 1351; and United States v. Billingsley, 469 F.2d, at 1210, with United States v. Lafko, 520 F.2d 622, 625 (CA3 1975), regarding the conflict about whether the criminal recommendation from the IRS to the Department of Justice or the recommendation from the special agent to his superiors is important in the enforcement inquiry. 7 In Boren v. Tucker, 239 F.2d 767, 772-773 (1956), the Ninth Circuit distinguished United States v. O'Connor, 118 F.Supp. 248 (Mass.1953), which involved an investigation of a taxpayer already under indictment. 8 The Court had concluded earlier that the summoning of the employer's and the accountant's records for an investigation of the taxpayer did not violate the constitutional rights of any of them. 400 U.S., at 522, 91 S.Ct., at 538. 9 See §§ 3614, 3615, 3616, and 3654 of the 1939 Code, 53 Stat. 438-440, 446. 10 See United States v. Kordel, 397 U.S. 1, 11, 90 S.Ct. 763, 769, 25 L.Ed.2d 1 (1970) (Federal Food, Drug, and Cosmetic Act enforcement), citing Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 51-52, 33 S.Ct. 9, 15-16, 57 L.Ed. 107 (1912) (Sherman Act enforcement). 11 See Part III-B and n. 15, infra. 12 The interrelated nature of the civil and criminal investigative functions is further demonstrated by the organization and functioning of the IRS. Pursuant to 26 CFR § 601.107 (1977), each revenue district has an Intelligence Division, "whose mission is to encourage and achieve the highest possible degree of voluntary compliance with the internal revenue laws." This purpose is implemented by "the investigation of possible criminal violations of such laws and the recommendation (when warranted) of prosecution and/or assertion of the 50 percent ad valorem addition to the tax." Ibid. See generally Internal Revenue Service Organization and Functions §§ 1113.563, 1114.8, and 1118.6, 39 Fed.Reg. 11572, 11581, 11601, and 11607 (1974). In its Manual for employees, the IRS instructs that the jurisdiction of the Intelligence Division includes all civil penalties except those related to the estimated income tax. Internal Revenue Manual, ch. 4500, § 4561 (CCH 1976). The Manual adds: "Intelligence features are those activities of developing and presenting admissible evidence required to prove criminal violations and the ad valorem penalties for civil fraud, negligence and delinquency (except those concerning tax estimations) for all years involved in cases jointly investigated to completion." Id., § 4565.31(4). The Manual also contains detailed instructions for coordination between special agents and revenue agents during investigations of tax fraud. E. g., id., § 4563.431 (1978), and §§ 4565.22, 4565.32, 4565.41-4565.44 (1976). Statistics for the fiscal year 1976 show that the Intelligence Division has a substantially greater involvement with civil fraud than with criminal fraud. Of 8,797 full-scale tax fraud investigations in that year, only 2,037 resulted in recommendations for prosecution. The 6,760 cases not recommended involved approximately $11 million in deficiencies and penalties. See 1976 Annual Report of the Commissioner of Internal Revenue 33, 61, 152. 13 See H.R.Rep.No.1337, 83d Cong., 2d Sess., A436 (1954); S.Rep.No.1622, 83d Cong., 2d Sess., 617 (1954), U.S.Code Cong. & Admin.News 1954, p. 4025. 14 Internal Revenue officials received similar summons authority in Revenue Acts prior to the 1939 Code. See, e. g., Revenue Act of 1918, § 1305, 40 Stat. 1142; Tariff Act of Oct. 3, 1913, § II ¶ I, 38 Stat. 178-179; Act of June 30, 1864, § 14, 13 Stat. 226. The interrelated nature of fraud investigations thus was apparent as early as 1864. Section 14 of the 1864 Act permitted the issuance of a summons to investigate a suspected fraudulent return. It also prescribed a 100% increase in valuation as a civil penalty for falsehood. Section 15 established the criminal penalties for such conduct. Four years later, when Congress created the position of district supervisor, that official received similar summons authority. Act of July 20, 1868, § 49, 15 Stat. 144-145; see Cong.Globe, 40th Cong., 2d Sess., 3450 (1868). The federal courts enforced these summonses when they were issued in good faith and in compliance with instructions from the Commissioner. See In re Meador, 16 F.Cas. 1294, 1296 (No. 9,375) (ND Ga.1869); Stanwood v. Green, 22 F.Cas. 1077, 1079 (No. 13,301) (SD Miss.1870) ("it being understood that this right upon the part of the supervisor extends only to such books and papers as relate to their banking operations, and are connected with the internal revenue of the United States"). 15 The Third Circuit has suggested that our reference in Donaldson to the recommendation for criminal prosecution ("We hold that under § 7602 an internal revenue summons may be issued in aid of an investigation if it is issued in good faith and prior to a recommendation for criminal prosecution," 400 U.S., at 536, 91 S.Ct., at 545) intended to draw a line at the recommendation to the Service's district office from the special agent, rather than at the recommendation from the Service to the Justice Department. United States v. Lafko, 520 F.2d, at 625. This misread our intent. Given the interrelated criminal/civil nature of tax fraud investigation whenever it remains within the jurisdiction of the Service, and given the utility of the summons to investigate civil tax liability, we decline to impose the prophylactic restraint on the summons authority any earlier than at the recommendation to the Department of Justice. We cannot deny that the potential for expanding the criminal discovery rights of the Justice Department or for usurping the role of the grand jury exists at the point of the recommendation by the special agent. But we think the possibilities for abuse of these policies are remote before the recommendation to Justice takes place and do not justify imposing an absolute ban on the use of the summons before that point. Earlier imposition of the ban, given the balance of policies and civil law enforcement interests, would unnecessarily hamstring the performance of the tax determination and collection functions by the Service. 16 See, e. g., United States v. Hodge & Zweig, 548 F.2d, at 1350, 1351; United States v. Zack, 521 F.2d, at 1368; United States v. Lafko, 520 F.2d, at 625; United States v. McCarthy, 514 F.2d, at 374-375; United States v. Theodore, 479 F.2d, at 753; United States v. Weingarden, 473 F.2d, at 459; United States v. Wall Corp., 154 U.S.App.D.C., at 311, 475 F.2d, at 895. 17 We recognize, of course, that examination of agent motive may be necessary to evaluate the good-faith factors of Powell, for example, to consider whether a summons was issued to harass a taxpayer. 18 The dissent would abandon this aspect of the good-faith inquiry. It would permit the IRS to use the summons authority solely for criminal investigation. It reaches this conclusion because it says the Code contains no limitation to prevent such use. Its argument reveals a fundamental misunderstanding about the authority of the IRS. The Service does not enjoy inherent authority to summon production of the private papers of citizens. It may exercise only that authority granted by Congress. In § 7602 Congress has bestowed upon the Service the authority to summon production for four purposes only: for "ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax . . . or collecting any such liability." Congress therefore intended the summons authority to be used to aid the determination and collection of taxes. These purposes do not include the goal of filing criminal charges against citizens. Consequently, summons authority does not exist to aid criminal investigations solely. The error of the dissent is that it seeks a limit on the face of the statute when it should seek an affirmative grant of summons authority for purely criminal investigations. We have made that search and could uncover nothing in the Code or its legislative history to suggest that Congress intended to permit exclusively criminal use of summonses. As a result, the IRS employs its authority in good faith when it pursues the four purposes of § 7602, which do not include aiding criminal investigations solely. 19 To the limited extent that the institutional good faith of the Service with regard to criminal purpose may be questioned before any recommendation to the Department of Justice, our position on this issue necessarily rejects the Government's argument that prerecommendation enforcement of summonses must meet only the Powell elements of good faith. We have concluded that the Government's contention fails to recognize the essence of the good-faith inquiry. The Powell elements were not intended as an exclusive statement about the meaning of good faith. They were exampl § of agency action not in good-faith pursuit of the congressionally authorized purposes of § 7602. The dispositive question in each case, then, is whether the Service is pursuing the authorized purposes in good faith. 20 These requirements are not intended to be exclusive. Future cases may well reveal the need to prevent other forms of agency abuse of congressional authority and judicial process. 21 Respondents argue that the District Court made a factual finding when it concluded that the summonses were issued solely to gather evidence for a criminal prosecution. They then submit that the District Court's decision may be overturned only if this Court holds this finding to be clearly erroneous. Several Courts of Appeals have discussed the factual and legal issues that lurk in summons enforcement proceedings. Compare United States v. Zack, 521 F.2d, at 1367-1368; United States v. National State Bank, 454 F.2d 1249, 1252 (CA7 1972); Boren v. Tucker, 239 F.2d, at 773, with United States v. Weingarden, 473 F.2d, at 460. Whether the issue of the Service's good faith generally poses a factual question, or a legal and factual one, or a legal question, is not necessarily presented in the case now before the Court, and we do not reach it. The lower courts employed an incorrect legal standard to measure good faith when they limited their consideration to the personal motivation of Special Agent Olivero. In this case, then, a legal error compels reversal. 1 See ante, at 305-306 n. 6. 2 As Judge Friendly pointed out, this Court's Powell opinion simply declared that a court may not permit its process in enforcing a summons to be abused, and its examples of "abuse" were: " 'Such an abuse would take place if the summons had been issued for an improper purpose, such as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation.' [379 U.S., at 58, 85 S.Ct., at 254.] "Nothing was said to indicate that an intention by the Commissioner to uncover criminal tax liability would reflect 'on the good faith' of the inquiry, and the rule of ejusdem generis would dictate the contrary." 572 F.2d, at 40.

01

437 U.S. 411 98 S.Ct. 2423 57 L.Ed.2d 313 AMERICAN BROADCASTING COMPANIES, INC., et al., Petitioners,v.WRITERS GUILD OF AMERICA, WEST, INC., et al. ASSOCIATION OF MOTION PICTURE AND TELEVISION PRODUCERS, INC., Petitioner, v. WRITERS GUILD OF AMERICA, WEST, INC., et al. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WRITERS GUILD OF AMERICA, WEST, INC., et al. Nos. 76-1121, 76-1153 and 76-1162. Argued Dec. 5, 1977. Reargued March 20, 1978. Decided June 21, 1978. Syllabus Respondent union, which represents persons hired to perform writing functions for motion picture and television films (hereinafter respondent), had collective-bargaining contracts with a producers association (petitioner in No. 76-1153) and three television networks (petitioners in No. 76-1121). Among respondent's members are a large number of persons (so-called "hyphenates") who are engaged by petitioners primarily to perform executive and supervisory functions. Though the hyphenates, who include various categories of producers, directors, and story editors, have minor writing tasks, these are not covered in the collective-bargaining contracts; only if the hyphenates are employed to perform additional writing services are the rates therefor governed by those contracts. In connection with their regular, primary duties many of the hyphenates are represented by unions other than respondent. In anticipation of an economic strike upon expiration of its contracts with petitioners, respondent distributed strike rules to its members, including the hyphenates (to whom the rules were made expressly applicable). The rules included a prohibition against crossing a picket line established by respondent at any entrance of a struck premise. After the strike began, petitioners informed the hyphenates that they were expected to continue their regular supervisory functions, though they would not be asked to perform writing duties covered by the union contract. Thereafter respondent notified a large number of the hypenates who had returned to work that they had violated one or more of the strike rules, including in many instances the ban on crossing a picket line. After ensuing disciplinary proceedings (at which there was no proof that hyphenates had performed any work covered by the recently expired contracts) respondent imposed various penalties on the hyphenates. Meanwhile the association and network petitioners filed charges against respondent for allegedly violating § 8(b)(1)(B) of the National Labor Relations Act, which makes it an unfair labor practice for a labor organization to restrain or coerce an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances. After extensive hearings, the Administrative Law Judge made findings that the hyphenates' regular supervisory duties included the performance of grievance adjustment; that the employer insisted that hyphenates return to work, but only to perform supervisory, not rank-and-file, duties; and that the hyphenates who reported did only supervisory work and had the authority to adjust grievances, which they did when the occasion arose. He found that § 8(b)(1)(B) had been violated because, by keeping hyphenates from work, the union had deprived the employer of fully effective § 8(b)(1)(B) representatives. The National Labor Relations Board (NLRB) adopted these findings and conclusions, found that the union's disciplinary action was an unfair labor practice under that provision, and issued a remedial order against respondent. The Court of Appeals denied enforcement. Held: Respondent's actions against the hyphenates violated § 8(b)(1)(B). Pp. 429-438. (a) In ruling upon a § 8(b)(1)(B) charge growing out of union discipline of a supervisory member who elects to work during a strike, the NLRB must inquire whether the sanction may adversely affect the supervisor's performance of his collective-bargaining or grievance-adjustment tasks and thereby coerce or restrain the employer contrary to that provision. See Florida Power & Light Co. v. Electrical Workers, 417 U.S. 790, 94 S.Ct. 2737, 41 L.Ed.2d 477. Pp. 429-431. (b) The NLRB's findings were based on substantial evidence that the hyphenates were coerced or restrained from reporting to work; that the employer was thereby deprived of the opportunity to choose particular supervisors as his collective-bargaining or his grievance-adjustment representatives during the strike; and that as to the hyphenates who reported to work there was adequate basis for concluding that the discipline would adversely affect the performance of their grievance-adjustment duties either during or after the strike. Moreover, since as the evidence showed, the union's policy was not to permit a member to resign during a strike and for six months thereafter, the employer could not free a supervisor from further threats of union discipline by requiring him to leave the union. Pp. 431-437. 547 F.2d 159, reversed. Norton J. Come, Washington, D. C., for petitioner in No. 76-1162. Harry J. Keaton, Los Angeles, Cal., for petitioner in No. 76-1153. Charles G. Bakaly, Los Angeles, Cal., for petitioners in No. 76-1121. Julius Reich, Los Angeles, Cal., for respondents in each case. Lawrence Gold, Washington, D. C., for AFL-CIO, as amicus curiae by special leave of Court. Mr. Justice WHITE delivered the opinion of the Court. 1 The issue in this litigation is whether a labor union commits an unfair labor practice when it disciplines a member who is a supervisory employee for crossing the union's picket line during a strike and performing his regular super isory duties, which include the adjustment of grievances. 2 * Respondent Writers Guild of America, West, Inc. (hereafter respondent), represents persons hired to perform writing functions for employers engaged in the production of motion pictures and television films, and in 1973 had contracts with certain petitioners that were about to expire. Petitioner in No. 76-1153 is the Association of Motion Picture and Television Producers, Inc., whose members are engaged in the production of motion pictures and television films. Petitioner represents its members in the negotiation and administration of collective-bargaining contracts. The three television networks, NBC, CBS and ABC, petitioners in No. 76-1121, are also engaged in the production of television films and negotiate and administer collective-bargaining contracts. In March 1973, respondent engaged in a strike against both of these groups of petitioners, picketed the various premises, and issued strike rules that it enforced against its own members. It is this action which gave rise to this case. 3 Among respondent's members are a substantial number of persons who were engaged by petitioners primarily to perform executive and supervisory functions including the selection and direction of writers and including certain limited writing duties. These persons are referred to as "hyphenates" and include various categories of producers, directors, and story editors.1 Although the primary function of hyphenates is not to write, they do perform minor writing tasks (referred to in the contract as "A to H" functions) that are an integral part of their primary duties and that expressly are not covered by the contracts between petitioners and respondent.2 Only in the event hyphenates are assigned or employed by petitioners to perform additional writing services are the rates for such services governed by the collective-bargaining contracts with respondent. In connection with the performance of their regular, primary duties, which, with the limited exception noted, do not include writing services, many, but not all, hyphenates are represented by labor organizations other than respondent. Some of the contracts between these other organizations and petitioners contained no-strike clauses when the events involved herein occurred. Certain hyphenates were pressured by these other labor organizations to honor these no-strike pledges by reporting to work. 4 Respondent, meanwhile, was preparing its own kinds of pressure to keep the hyphenates from working. In preparation for the strike, respondent issued and distributed to its members, including the hyphenates, some 31 strike rules. The rules, among other things, forbade any act prejudicial to the welfare of respondent such as conduct tending to defeat a strike or to weaken its effectiveness (Rule 1); prohibited all members "from crossing a picket line which is established by the Guild at any entrance" of a struck premises (Rule 12); forbade the entry of any struck premises for certain purposes and required notice to respondent when entry was made for other purposes (Rule 13);3 and obliged members to accept picket duty when assigned by respondent (Rule 28). Another rule (Rule 30), rescinded midway in the strike, provided that no member could work with any individual, including the writer-executive, who had violated union strike rules.4 The strike rules' applicability to hyphenates was made clear in Rule 24: "All members, regardless of the capacity in which they are working, are bound by all strike rules and regulations in the same manner and to the same extent as members who confine their efforts to writing." The rules were widely publicized, and respondent repeatedly emphasized, orally and in writing, that it would enforce the rules against hyphenates. Nor could a hyphenate escape those strictures by resigning, for it was respondent's policy, once the strike was under way, not to permit withdrawal from the union, then or for six months following the completion of negotiations. 5 Petitioners, however, informed the hyphenates that petitioners' operations were continuing and that the hyphenates were expected to report for work and perform their regular supervisory functions. Petitioners were careful to assure that hyphenates would not be requested to perform writing duties covered by the union contract. 6 Some hyphenates went to work, informing their employers, as responde t knew, that they would perform only their primary duties as producer, director, or story editor. Others refrained from reporting for work. Between April 6 and November 8, 1973, respondent notified more than 30 hyphenates who returned to work that they had been charged with violating one or more of the strike rules. Most often, the charges related to Rules 1, 12, and 13.5 Various disciplinary trials ensued. In these proceedings, the evidence was that the hyphenates who returned to duty performed only the normal functions of the supervisory positions for which they were employed. There was no proof that hyphenates performed any work covered by the recently terminated contracts between petitioners and respondent. As the Administrative Law Judge observed, respondent "for the most part professed little or no interest in what kind of work was done during the strike" by the hyphenates who chose to work.6 Between June 25 and September 28, 1973, various penalties were imposed by respondent as the result of these disciplinary proceedings. The penalties included expulsions, suspensions, and quite substantial fines.7 7 Meanwhile, the Association and network petitioners had filed unfair labor practice charges, and the General Counsel of the National Labor Relations Board had issued complaints against respondent charging violations of § 8(b)(1)(B) of the National Labor Relations Act, 61 Stat. 141, 29 U.S.C. § 158(b)(1)(B), which provides that "[i]t shall be an unfair labor practice for a labor organization . . . to restrain or coerce . . . an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances." Extensive hearings followed, the Administrative Law Judge ultimately recommending that the charges be sustained and making findings and co clusions that were adopted by the National Labor Relations Board. 8 These findings included an analysis of the primary functions for which the hyphenates were employed. It was concluded that all of the producers, directors, and story editors involved were employed to perform supervisory functions and were supervisors within the meaning of § 2(11) of the Act, 29 U.S.C. § 152(11). It was also found that the hyphenates in each of these categories regularly had the authority and the task of adjusting grievances.8 "It is clear, as has been found, that the normal performance of the hyphenates' primary functions involves the adjustment of employee grievances, and, in the case of producers on distant location, to engage in collective bargaining with labor organizations."9 Furthermore, the record indicated that "during the strike, where the situation arose, the hyphenates dealt with grievances of employees who worked during the strike, or, in any event, were available to deal with such matters in their normal capacities when and if such grievances arose."10 It was also found that the hyphenates who reported for duty during the strike performed only their primary functions and did not engage in writing or do any work that had been covered by respondent's collective-bargaining contract. Significantly, none of the hyphenates was charged with violating the strike rule forbidding the performance of writing functions for a struck employer. During the disciplinary hearings, respondent was "not concerned with what work the hyphenates did when working during the strike,"11 although it would have been quite easy to determine these facts from testimony of union writers about what work was found completed upon their return. 9 The ultimate factual conclusions of the Administrative Law Judge were that the hyphenates were supervisors "selected by their employers to adjust grievances";12 that in issuing strike rules and engaging in other conduct designed to compel the hyphenates to refrain from working respondent had "restrained and coerced the hyphenates from performing managerial and supervisory services for their employers during the strike, including the adjustment of employee grievances and participation in collective bargaining," and had thus "coerced and restrained those employers in the selection of representatives for collective bargaining and the adjustment of grievances within the meaning of Section 8(b)(1)(B)";13 and that by charging, trying, and disciplining the hyphenates who chose to work and who, the Administrative Law Judge found, "performed managerial and supervisory functions including the adjustment of grievances on collective bargaining as required, and did not perform rank and file work," respondent "further coerced and restrained the employers" within the meaning of § 8(b)(1)(B).14 10 In arriving at these conclusions, the Administrative Law Judge rejected the claim that Florida Power & Light Co. v. Electrical Workers, 417 U.S. 790, 94 S.Ct. 2737, 41 L.Ed.2d 477 (1974) (FP&L ), required a contrary result, saying that respondent's conduct "violated the plain meaning of the statute without the necessity of resort to statutory exegesis."15 11 On exceptions and supporting briefs, a majority of a three-member panel of the Board, except in one respect,16 adopted as its own the rulings, findings, and conclusions of the Administrative Law Judge. The Board also reasoned that FP&L, which involved supervisors who performed bargaining-unit work, did not extend to cases where union discipline was imposed upon supervisors who performed only their ordinary supervisorial functions (including the adjustment of grievances). The Board relied upon two of its cases decided subsequent to FP&L: Chicago Typographical Union No. 16 (Hammond Publishers, Inc.), 216 N.L.R.B. 903 (1975); New York Typographical Union No. 6, International Typographical Union, AFL-CIO (Daily Racing Form, a subsidiary of Triangle Publishers, Inc.), 216 N.L.R.B 896 (1975). 12 On application to review by the networks and the Board's application to enforce, a divided panel of the Court of Appeals for the Second Circuit denied enforcement in a brief per curiam opinion indicating that, like the dissenting member of the Board, it considered FP&L, supra, to bar the results reached by the Board in this case. 547 F.2d 159 (1976). We granted the petitions for certiorari of the Board as well as of the Association and the networks because of an apparent conflict between the decision below and decisions in other Courts of Appeals and because of the recurring nature of the issue.17 430 U.S. 982, 97 S.Ct. 1677, 52 L.Ed.2d 376 (1977). II 13 As the Court has set out in greater detail in its comprehensive review of § 8(b)(1)(B) in FP&L, the prohibitio against restraining or coercing an employer in the selection of his bargaining representative was, until 1968, applied primarily to pressures exerted by the union directly upon the employer to force him into a multiemployer bargaining unit or otherwise to dictate or control the choice of his representative for the purpose of collective bargaining or adjusting grievances in the course of administering an existing contract. In San Francisco-Oakland Mailers' Union No. 18, International Typographical Union (Northwest Publications, Inc.), 172 N.L.R.B. 2173 (1968), however, the Board applied the section to prohibit union discipline of one of its member-supervisors for the manner in which he had performed his supervisory task of grievance adjustment. Although the union "sought the substitution of attitudes rather than persons, and may have exerted its pressures upon the [employer] by indirect rather than direct means," the ultimate fact was that the pressure interfered with the employer's control over his representative. "Realistically, the Employer would have to replace its foremen or face de facto nonrepresentation by them." Oakland Mailers, supra, at 2173. 14 The application of the section to indirect coercion of employers through pressure applied to supervisory personnel continued to evolve until the FP&L and Illinois Bell18 cases reached the Court of Appeals for the District of Columbia Circuit and then this Court. In each of those cases, the union disciplined supervisor-members who had performed rank-and-file work behind a union picket line during a strike. In a companion case to Illinois Bell,19 upon which Illinois Bell explicitly relied,20 the Board found an infraction of § 8(b) (1)(B),construing its purpose "to assure to the employer that its selected collective-bargaining representatives will be completely faithful to its desires" and holding that this could not be achieved "if the union has an effective method, union disciplinary action, by which it can pressure such representatives to deviate from the interests of the employer."21 In like fashion, in FP&L, the Board held that fining supervisors for doing rank-and-file work during a work stoppage "struck at the loyalty an employer should be able to expect from its representatives for the adjustment of grievances and therefore restrained and coerced employers in their selection of such representatives."22 15 The Court of Appeals overturned both decisions of the Board, holding that although the section could be properly applied to union efforts to discipline supervisors for their performance as collective-bargaining or grievance-adjustment representatives, it could not reasonably be applied to prohibit union discipline of supervisors crossing picket lines to perform bargaining-unit work: "When a supervisor forsakes his supervisory role to do rank-and-file work ordinarily the domain of nonsupervisory employees, he is no longer acting as a management representative and no longer merits any immunity from discipline." 159 U.S.App.D.C., at 286, 487 F.2d, at 1157. 16 This Court affirmed the judgment of the Court of Appeals: 17 "The conclusion is thus inescapable that a union's discipline of one of its members who is a supervisory employee can constitute a violat on of § 8(b)(1)(B) only when that discipline may adversely affect the supervisor's conduct in performing the duties of, and acting in his capacity as, grievance adjuster or collective bargainer on behalf of the employer." 417 U.S., at 804-805, 94 S.Ct., at 2745. 18 The Court thus rejected the claim that "even if the effect of [union] discipline did not carry over to the performance of the supervisor's grievance adjustment or collective bargaining functions," it was enough to show that the result would be "to deprive the employer of the full allegiance of, and control over, a representative he has selected for grievance adjustment or collective bargaining purposes." Id., at 807, 94 S.Ct., at 2746. Assuming without deciding that the Board's decision in Oakland Mailers fell within the outer reaches of § 8(b)(1)(B), the Court concluded that the Illinois Bell and FP&L decisions did not, because it was "certain that these supervisors were not engaged in collective bargaining or grievance adjustment, or in any activities related thereto, when they crossed union picket lines during an economic strike to engage in rank-and-file struck work." 417 U.S., at 805, 94 S.Ct., at 2745. 19 Subsequent to FP&L, in applying § 8(b)(1)(B) to cases involving union discipline of supervisor-members, the Board directed its attention, as it understood FP&L to require, to the question whether the discipline may adversely affect the supervisor's conduct in performing his grievance-adjustment or collective-bargaining duties on behalf of the employer. In Hammond Publishers, supra, and Triangle Publishers, supra, the Board held that it was an unfair practice under § 8(b)(1)(B) for a union to discipline a supervisor-member whose regular duties included the adjustment of grievances for crossing a picket line to perform his regular functions during a strike. See also Wisconsin River Valley Dist. Council (Skippy Enterprises, Inc.), 218 N.L.R.B. 1063 (1975). These cases rested on the Board's conclusion that such discipline imposed on the supervisor would have a "carryover" effect and would influence the supervisor in the performance of his adjustment functions after the strike and hence interfere with and coerce the employer in the choice of his grievance representative. See Triangle, 216 N.L.R.B., at 897; Hammond, 216 N.L.R.B., at 904. The Triangle decision was not challenged in the courts, but Hammond was enforced, 176 U.S.App.D.C. 240, 539 F.2d 242 (1976), as was Skippy Enterprises, 532 F.2d 47 (CA7 1976).23 III 20 This case was tried to the Administrative Law Judge prior to the issuance of this Court's decision in FP&L, but hearings continued and the record was not closed until after the Court of Appeals' final decision in that case; and the FP&L opinion here was handed down on June 24, 1974, some three months before the Administrative Law Judge issued his recommended decision. As we have already indicated, the findings of the Administrative Law Judge, accepted by the Board, were that the hyphenates' regular supervisory duties included the performance of grievance adjustment; that the employer insisted that hyphenates return to work but only to perform supervisory, not rank-and-file, duties;24 and that the hyphenates who reported did only supervisory work and had the authority to adjust grievances which they did when the occasion arose.25 After analyzing this Court's pronoun ements in FP&L, the Administrative Law Judge rejected the claim that union discipline of a supervisor-member for working during a strike can never be a § 8(b)(1)(B) violation and went on to hold that under the test prescribed by FP&L, there was a violation here. His conclusions were that through its strike rules and other pressures "designed to compel such hyphenates from going to work during the strike," regardless of the tasks that they might perform, the union had "restrained and coerced the hyphenates from performing managerial and supervisory services for their employers during the strike, including the adjustment of employee grievances and participation in collective bargaining . . . ."26 By "coercing or restraining" hyphenates from going in to do their normal work, which included grievance adjustment, or in the case of producers, on distant location, the task of collective bargaining, the union had "actually coerced and restrained their employers from selecting those persons as the employers' representatives for the adjustment of grievances and for collective bargaining during the strike."27 He also concluded that by charging, trying, and disciplining those hyphenates who did report for work and by "threatening to blacklist in perpetuity . . . [and] to drive [them] out of the industry,"28 the union had coerced and restrained these hyphenates from performing their regular duties in the normal manner, including the adjustment of grievances and collective bargaining. The employer, in turn, had been further coerced and restrained in the free selection of those hyphenates as his collective-bargaining and grievance-adjustment representatives. 21 The Administrative Law Judge thus found the section violated according to the test as elaborated in FP&L because, by keeping hyphenates from work, the union had deprived the employer of any opportunity to select those particular supervisors as his grievance-adjusting or collective-bargaining representatives29 and because disciplining and threatening those supervisors who had reported for duty deprived the employer of fully effective § 8(b)(1)(B) representatives. Although the Board embraced these findings and conclusions of the Administrative Law Judge,30 it also found that the disciplinary action taken by the union against those hyphenates who crossed the picket line was an unfair practice under § 8(b)(1)(B) as that section had been construed in Hammond and Triangle and that threats of such illegal discipline against others also viola ed the section. IV 22 We cannot agree with what appears to be the fundamental position of the Court of Appeals and the union that under § 8(b)(1)(B), as the section was construed in FP&L, it is never an unfair practice for a union to discipline a supervisor-member for working during a strike, regardless of the work that he may perform behind the picket line. The opinion in FP&L expressly refrained from questioning Oakland Mailers or the proposition that an employer could be coerced or restrained within the meaning of § 8(b)(1)(B) not only by picketing or other direct actions aimed at him but also by debilitating discipline imposed on his collective-bargaining or grievance-adjustment representative. Indeed, after focusing on the purposes of the section, the Court in FP&L delineated the boundaries of when that "carryover" effect would violate § 8(b)(1)(B): whenever such discipline may adversely affect the supervisor's conduct in in his capacity as a grievance adjustor or collective bargainer. In these situations that is, when such impact might be felt—the employer would be deprived of the full services of his representatives and hence would be restrained and coerced in his selection of those representatives. 23 Furthermore, because this was the test prescribed and employed by the Court to adjudicate the very situation where union discipline was imposed for crossing a picket line, it is unlikely that the Court anticipated that the test could never be satisfied in such disciplinary cases, that it could never be true that the sanction could or would affect the supervisor's collective-bargaining or grievance-adjustment functions, or that the employer in such circumstances could never be restrained or coerced in the selection of his representatives. 24 This is not to say that every effort by a union to discipline a supervisor for crossing a picket line to do supervisory rather than rank-and-file work would satisfy the standards specified by FP&L, or that on facts present here there is necessarily a iolation of § 8(b)(1)(B). But we are of the view that the Board correctly understood FP&L to mean that in ruling upon a § 8(b)(1)(B) charge growing out of union discipline of a supervisory member who elects to work during a strike, it may—indeed, it must inquire whether the sanction may adversely affect the supervisor's performance of his collective-bargaining or grievance-adjustment tasks and thereby coerce or restrain the employer contrary to § 8(b)(1)(B). The Board addressed those issues here, and if its ultimate factual conclusions in this regard are capable of withstanding judicial review, it seems to us that its construction of the section fairly recognizes and respects the outer boundaries established by FP&L, and represents an "acceptable reading of the statutory language and a reasonable implementation of the purposes of the relevant statutory sections." NLRB v. Iron Workers, 434 U.S. 335, 441, 98 S.Ct. 651, 656, 54 L.Ed.2d 586 (1978). 25 Respondent objects that this construction of the Act impermissibly intrudes on the union's right to resort to economic sanctions during a strike. However, an employer also has economic rights during a strike, and the statute declares that, in the unrestrained freedom to select a grievance-adjustment and collective-bargaining representative, the employer's rights dominate. Ample leeway is already accorded to a union in permitting it to discipline any member, even a supervisor, for performing struck work—to carry that power over to the case of purely supervisory work is an inappropriate extension and interference with the employer's prerogative. The Board has so ruled, and as the Court has often observed " '[t]he function of striking [the] balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.' " NLRB v. Iron Workers, supra, at 350, 98 S.Ct., at 660, quoting NLRB v. Truck Drivers, 353 U.S. 87, 96, 77 S.Ct. 643, 647, 1 L.Ed.2d 676 (1957); NLRB v. Insurance Agents, 361 U.S. 477, 499, 80 S.Ct. 419, 432, 4 L.Ed.2d 454 (1960). Here, in adjudicating as it did the intertwining interests of union, employer, and supervisor-member during an economic strike, we cannot say that the Board has moved into a new area of regulation not committed to it by Congress, ibid., or conclude that the role assumed by the Board is "fundamentally inconsistent with the structure of the Act and the function of the sections relied upon." American Ship Building Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 967, 13 L.Ed.2d 855 (1965); NLRB v. Iron Workers, supra.31 V 26 We are also unpersuaded that the Board's findings and conclusions are infirm on any of the grounds submitted. First, it is urged that there was an insufficient showing and insufficient findings that any hyphenates were coerced or restrained from reporting for work. But the Administrative Law Judge carefully detailed the strike rules that he expressly found were designed and enforced with the intent of restraining hyphenates from going to work and from performing the normal duties of their positions, which included the adjustment of grievances.32 It was also found that the hyphenates were especially vulnerable to pressure from the union and that many of them were actually restrained and prevented from performing their normal duties, including the adjustment of grievances. These are sufficiently clear findings that union pressures kept many hyphenates from the job, and, on the record before us, it approaches the frivolous to argue that there is insufficient evidence to support them. It also follows, as the Administrative Law Judge and the Board concluded, that as to those hyphenates whom the union kept from work, the employer was restrained and coerced within the meaning of § 8(b)(1)(B) by being totally deprived of the opportunity to choose these particular supervisors as his collective-bargaining or grievance-adjustment representatives during the strike. 27 Second, as to those hyphenates who reported for work, it is strenuously urged that there is no basis for concluding that the discipline imposed upon them would adversely affect the performance of their grievance-adjustment duties either during or after the strike. Again, however, we are unwilling to differ with the Board in these respects. The inquiry whether union conduct would or might adversely affect the performance of the hyphenates' grievance-adjustment duties is, as petitioners assert, necessarily a matter of probabilities, and its resolution depends much on what experience would suggest are the justifiable inferences from the known facts. This seems to us to be peculiarly the kind of determination that Congress has assigned to the Board: 28 "An administrative agency with power after hearings to determine on the evidence in adversary proceedings whether violations of statutory commands have occurred may infer within the limits of the inquiry from the proven facts such conclusions as reasonably may be based upon the facts proven. One of the purposes which lead to the creation of such boards is to have decisions based upon evidential facts under the particular statute made by experienced officials with an adequate appreciation of the complexities of the subject which is entrusted to their administration." Republic Aviation Corp. v. NLRB, 324 U.S. 793, 800, 65 S.Ct. 982, 986, 89 L.Ed. 1372 (1945); Radio Officers v. NLRB, 347 U.S. 17, 48-49, 74 S.Ct. 323, 339-340, 98 L.Ed. 455 (1954). 29 See also NLRB v. Erie Resistor Corp., 373 U.S. 221, 227, 83 S.Ct. 1139, 1144, 10 L.Ed.2d 308 (1963); Teamsters v. NLRB, 365 U.S. 667, 675, 81 S.Ct. 835, 839, 6 L.Ed.2d 11 (1961). The Board's findings are "entitled to the greatest deference in recognition of its special competence in dealing with labor problems." American Ship Building Co. v. NLRB, supra, 380 U.S., at 316, 85 S.Ct., at 966. 30 Furthermore, it does not strike us as groundless or lacking substantial evidence for the Board to conclude on this record that the discipline imposed would have the necessary adverse effect. Strike rules were distributed in February; the strikes against the Association began on March 4 and terminated June 24; the strikes against the networks began on March 29 and ended on July 12. Between April 6 and November 8—both during and after the strikes—some 31 hyphenates who had worked during the strikes were charged with violating union rules,33 15 hearings had been held prior to the closing of evidence in November 1973, and from June 25 to September 28, very substantial penalties were imposed in 10 cases although 9 have already been reduced on appeal. These penalties were widely publicized at the time of their imposition. Other charges were pending and remained to be tried when the record was closed in this case. 31 These penalties were meted out at least in part because the accused hyphenates had complied with the orders of their empl yers by reporting for work and performing only their normal supervisory functions, including the adjustment of grievances, during the strike. Hyphenates who worked were thus faced not only with threats but also with the actuality of charges, trial, and severe discipline simply because they were working at their normal jobs. And if this were not enough, they were threatened with a union blacklist that might drive them from the industry. How long such hyphenates would remain on the job under such pressure was a matter no one, particularly the employer, could predict. 32 Moreover, after the strike, with the writers back at work, the hyphenates who had worked during the strike still faced charges and trials or were appealing large fines and long suspensions. At the same time, they were expected to perform their regular supervisory duties and to adjust grievances whenever the occasion demanded, functions requiring them to deal with the same union which was considering the appeal of their personal sanctions. As to these supervisors, who had felt the union's wrath, not for doing rank-and-file work contrary to union rules, but for performing only their primary supervisory duties during the strike and who were in a continuing controversy with the union, it was not untenable for the Board to conclude that these disciplined hyphenates had a diminished capacity to carry out their grievance-adjustment duties effectively and that the employer was deprived of the full range of services from his supervisors.34 Such a hyphenate might be tempted to give the union side of a grievance a more favorable slant while the threat of discipline remained, or while his own appeal of a union sanction was pending. At the very least, the employer could not be certain that a fined hyphenate would willingly answer the employer's call to duty during a subsequent work stoppage, particularly if it occurred in the near future.35 For an employer in these circumstances to insure having satisfactory collective-bargaining and grievance-adjustment services would require a change in his representative. 33 As the Board has construed the Act fr m Oakland Mailers to Triangle, Hammond, and the cases now before us, such a likely impact on the employer constitutes sufficient restraint and coercion in connection with the selection of collective-bargaining and grievance-adjustment representatives to violate § 8(b)(1)(B). In FP&L the Court declined the invitation to overrule Oakland Mailers, and we do so again. Union pressure on supervisors can affect either their willingness to serve as grievance adjustors or collective bargainers, or the manner in which they fulfill these functions; and either effect impermissibly coerces the employer in his choice of representative.36 34 Third, it is further urged that union discipline could not adversely affect a supervisor's later performance of his § 8(b)(1)(B) duties because the employer could require him to leave the union and thus free himself from further threats of union discipline. This submission has little force in this case, since, as the Administrative Law Judge found, the union's known policy was not to permit a member to resign during a strike and for a period of six months thereafter. For the entire period to which the Board's findings were addressed, hyphenates could not terminate their membership, and the employer's only recourse would have been to replace them as his grievance representatives. 35 Carried to its logical end, this submission is simply another argument that union sanctions applied to supervisor-members who work during a strike can never violate § 8(b)(1)(B), because the employer could always insist that his supervisors either terminate union affiliation or face discharge. Yet, as we have noted, the test posited by this Court in FP&L plainly recognizes the possibility of a § 8(b)(1)(B) violation arising from union fines imposed during a strike. Moreover, if the argument were to be accepted, indirect pressures on the employer by sanctioning supervisor-members for the manner in which they perform their grievance-adjusting function (as in Oakland Mailers ) would never be a violation because the supervisor could, at the employer's request, escape from union threats and sanctions. The Board's construction of the Act is to the contrary, however, and, as we have said, we are not prepared at this juncture to override it.37 36 Because we have concluded that the Board's construction of § 8(b)(1)(B) is not an unreasonable reading of its language or inconsistent with its purposes, and because we cannot say that the Board's findings lacked substantial evidence, we must reverse the judgment of the Court of Appeals. 37 So ordered. 38 Mr. Justice STEWART, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice STEVENS join, dissenting. 39 The Court holds today that a labor union locked in a direct economic confrontation with an employer is powerless to impose sanctions on its own members who choose to pledge their loyalty to the adversary. Nothing in § 8(b)(1)(B) or any other provision of the National Labor Relations Act permits such a radical alteration of the natural balance of power between labor and management. I therefore respectfully dissent. 40 A union's ability to maintain a unified front in its confrontations with management and to impose disciplinary sanctions on those who "adher[e] to the enemy in time of struggle" are essential to its survival as an effective organization. See Summers, Legal Limitations on Union Discipline, 64 Harv.L.Rev. 1049, 1066 (1951). An employer also has an interest in securing the loyalty of those who represent him in dealings with the union, and that interest is protected by specific provisions of the Act.1 Thus, as the Court observed in Florida Power & Light Co. v. Electrical Workers, 417 U.S. 790, 94 S.Ct. 2737, 41 L.Ed.2d 477 (FP&L), very real concerns are raised on both sides when supervisory employees with collective-bargaining and grievance-adjustment responsibilities are also union members. But § 8(b)(1)(B) is not "any part of the solution to the generalized problem of supervisor-member conflict of loyalties." 417 U.S., at 813, 94 S.Ct., at 2749. 41 That statutory provision was enacted for the primary purpose of prohibiting a union from exerting direct pressure on an employer to force him into a multiemployer bargaining unit or to dictate his choice of representatives for the settlement of employee grievances. S.Rep.No.105, 80th Cong., 1st Sess., pt. 1, p. 21 (1947). The Court in FP&L reserved decision on whether union pressure expressly aimed at affecting the manner in which supervisor-members performed their collective-bargaining or grievance-adjustment functions might fall within the "outer limits" of the proscription of § 8(b)(1)(B). 417 U.S., at 805, 94 S.Ct., at 2745. See San Francisco-Oakland Mailers' Union No. 18 (Northwest Publications, Inc.), 172 N.L.R.B. 2173. But it flatly rejected the argument that union discipline aimed at enforcing uniform rules violated § 8(b)(1)(B) simply because it might have the ancillary effect of "depriv[ing] the employer of the full allegiance of, and control over, a representative he has selected for grievance adjustment or collective bargaining purposes." 417 U.S., at 807, 94 S.Ct., at 2746. 42 In the present cases it is entirely clear that the union had no interest in restraining or coercing the employers in the selection of their bargaining or grievance-adjustment representatives, or in affecting the manner in which supervisory employees performed those functions. As the Court notes, ante, at 417-418, and n. 6, the union expressed no interest at the disciplinary trials in the kind of work that was done behind its picket lines. Its sole purpose was to enforce the traditional kinds of rules that every union relies on to maintain its organization and solidarity in the face of the potential hardship of a strike. Cf. NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 181-184, 87 S.Ct. 2001, 2007-2008, 18 L.Ed.2d 1123. 43 In reversing the judgment of the Court of Appeals, this Court today forbids a union from disciplining a supervisor-member who crosses its picket line—who clearly gives "aid and comfort to the enemy" during a strike, see Summers, supra, at 1066—solely because that action may have the incidental effect of depriving the employer of the hypothetical grievance-adjustment services of that particular supervisor for the duration of the strike. This ruling quite simply gives the employer the superior right to call on the loyalty of any supervisor with grievance-adjustment responsibilities,2 whenever the union to which the supervisor belongs calls him out on strike. In short, the Court's decision prevents a union with supervisory members from effectively calling and enforcing a strike.3 44 Nothing in § 8(b)(1)(B) permits such a sweeping limitation on the choice of economic weapons by unions that include supervisory employees among their members. On the contrary, as the Court clearly held in FP&L, supra, an employer's remedy if he does not want to share the loyalty of his supervisors with a union is to insist that his supervisory personnel not belong to a union; or if he does not welcome the consequences of his supervisors' union membership he may legally penalize them for engaging in union activities, see n. 1, supra, or "resolv[e] such conflicts as arise through the traditional procedures of collective bargaining." FP&L, supra, 417 U.S., at 813, 94 S.Ct., at 2749.4 45 The sole function of § 8(b)(1)(B) is to protect an employer from any union coercion of the free choice of his bargaining or grievance-adjustment representative. In prohibiting union interference in his choice of representatives for dealings with the union, this statutory provision does not in any way grant him a right to interfere in the union's relationship with its supervisor-members.5 The statute leaves the balance of power in equipoise. The Court's decision, by contrast, tips it measurably in favor of the employer at the most delicate point of direct confrontation, by completely preventing the union from enlisting the aid of its supervisor-members in a strike effort. It seems to me that the Court's reading of § 8(b)(1)(B) is "fundamentally inconsistent with the structure of the Act and the function of the sections relied upon." American Shipbuilding v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 953, 967, 13 L.Ed.2d 855. 46 Accordingly, I would affirm the judgment of the Court of Appeals. 1 Executive producers, with the help of producers and associate producers have the primary responsibility for the production of films for motion pictures or for television. The responsibility begins with the idea or concept for the film or the series and carries through to the post-production stages after filming. Directors are in personal charge of the principal photography of the film. They are responsible for the employment of crew and actors and effectively direct such employees. Story editors, story consultants, script consultants, executive story editors, and executive story consultants principally assist the producer in the highly important function of dealing with scripts and writers. They have individual judgment, initiative, and responsibility, and their tasks are clearly supervisory. Approximately 80 hyphenate members of respondent were principally employed as producers of one kind or another, approximately 15 were directors, and another 15 were in the story editor category. 2 The finding of the Administrative Law Judge in this regard was: "The important point is that when these executives and supervisors perform those functions excluded from the Respondent's bargaining agreements they thereby perform functions which the parties have acknowledged do not constitute work reserved to Respondent's non-hyphenate members under the agreements, but rather are accepted as a normal part of the duties and responsibilities of the executives and supervisors (as hereinabove discussed) employed by the employers involved." (Footnote omitted.) App to Pet. for Cert. in No. 76-1162, p. 35a. The contract provided that performance of any "A to H" writing "shall not constitute such person a writer hereunder." Id., at 33a. 3 Rule 13 provided: "Members are prohibited from entering the premises of any struck producer for the purpose of discussion of the sale of material or contract of employment, regardless of the time it is to take effect. Members are also prohibited from entering the premises of any struck producer for the purpose of viewing any film. . . . [S]hould a member find it necessary to visit the premises of a struck producer for any reason apart from the foregoing he should inform the Guild in advance of the nature of such prospective visit." Id., at 36a-37a. 4 Rule 30 provided: "No member shall work with any individual, including a writer-executive who has been suspended from Guild membership by reason of his violation of strike rules, or has been found by the Council to have violated strike rules, in the event no disciplinary action was instituted against such person." Id., at 38a. After the issuance of the initial complaint in this case, Rule 30 was rescinded by respondent in a letter to all of its members, which stated, among other things, that "because the old rule could be misconstrued to mean that the Guild was maintaining an improper sanction, a matter of anathema to this Guild, the Board of Directors rescinded old Rule 30 . . . ." The assessment of the Administrative Law Judge was: "In particular, by threatening to blacklist in perpetuity such hyphenates who worked during the strike, the rules threatened to drive these hyphenates out of the industry. Though the mandatory effect of the rule was rescinded . . . there are other indications that Respondent's actions encourage a voluntary blacklist. . . . [T]he fact is that Respondent did suggest it, and it is now impossible to disentangle the consequences flowing from its actions." Id., at 69a-70a. 5 The Administrative Law Judge found that a typical notice of charges against a hyphenate contained the following: "Specifically, you are charged with: (1) having crossed the Guild's picket lines . . . during the months of March, April, May and June 1973, without having informed the Guild in advance of the nature of your business with said company and without having obtained a Guild pass to enter said premises; (2) having during the months of March, April, May and June 1973, rendered services for . . . a company against whom the Guild was at such times on strike; and (3) refusing to perform picket duties during the strike after having been requested to do so by representatives of the Guild." Id., at 45a. (Footnote omitted.) 6 Id., at 43a-44a. Respondent, through counsel, took the position at the disciplinary hearings that the hyphenates charged were subject to discipline simply for crossing respondent's picket line, whether or not they crossed for the purpose of performing bargaining services for a struck employer. Respondent held that charges would properly lie even against hyphenates who had given assurances not to perform any writing services for a struck employer. 7 The Administrative Law Judge noted the penalties against 10 of the hyphenates charged and tried: "Two were expelled from membership and fined $50,000 each; one was expelled from membership and fined $10,000; one was suspended from membership for 2 years and fined $10,000; one was suspended for 2 years and fined $7,500; one was suspended for 3 years and fined $5,000; one was expelled from membership and fined $2,000; one was expelled and fined $100; and one was suspended for 2 years and fined $100. These penalties received wide publicity in the local press and trade papers. The appeals of nine of these men has [sic ] been voted upon by Respondent's membership at a special meeting and the penalties were drastically reduced. Apparently all remaining actions with respect to discipline of hyphenate-members for working during the strike are now being held in abeyance pending resolution of these cases." Id., at 46a. 8 The Administrative Law Judge found: "The producer has substantial responsibility and authority in adjusting grievances between directors and craft employees, directors and actors and actresses, between two or more actors or actresses, and in other similar situations. Producers also have responsibility and authority to adjust grievances involving writers, as in the case of disputes between writers and story editors." Id., at 26a. Executive producers supervise one or more producers, and associate producers assist the producer. "Without distinguishing among them in detail, it is clear on this record that persons occupying these positions in the motion picture or television industries have the authority to hire, terminate, and responsibly direct other employees, and to adjust employee grievances, or to effectively recommend such action, and are thus supervisors within the meaning of Section 2(11) of the Act." Id., at 27a. With respect to directors, the Administrative Law Judge determined that they "hire or effectively recommend the employment of crew and actors, effectively direct such employees, and may discharge or effectively recommend the discharge of employees. They have authority to and do adjust grievances of such employees. It is found that persons performing the functions of director in the television and motion picture industries are supervisors and adjust grievances of employees within the meaning of the Act." Id., at 28a. Story editors supervise writers in the development of ideas and the preparation of scripts. They interview and recommend the hiring of new writers, and advise the producer concerning writers who should not be retained. "On a television series, the story editor may participate with the producer in the initial determination of any dispute over screen credits. He also may serve as a buffer between management and the writer, as in ameliorating a writer's distress over material that has been rewritten. . . . * * * * * "On the basis of the entire record, it is found that those persons in the television and motion picture industries performing the functions of story editor, story consultant, script consultant, executive story editors, and executive story consultants ar supervisors and adjust grievances of employees within the meaning of the Act." Id., at 29a-30a. 9 Id., at 57a. 10 Id., at 60a. 11 Id., at 59a. 12 Id., at 62a. 13 Ibid. 14 Id., at 63a. 15 Ibid. 16 The Board held that there had been a violation with respect to certain hyphenates in addition to those in the categories of producer, director, and story editor. 17 In Chicago Typographical Union No. 16 v. NLRB, 176 U.S.App.D.C. 240, 539 F.2d 242 (1976), the Court of Appeals for the District of Columbia Circuit enforced the Board's order in Hammond Publishers, relied on by the Board in this case. In Wisconsin River Valley Dist. Council v. NLRB, 532 F.2d 47 (1976), the Court of Appeals for the Seventh Circuit also took a position seemingly at odds with the judgment under review here. The issue is also a recurring one before the Board. 18 IBEW, Local 134 v. NLRB, 159 U.S.App.D.C. 242, 487 F.2d 1113, rev'd on rehearing en banc, 159 U.S.App.D.C. 272, 487 F.2d 1143 (1973), refusing to enforce IBEW, Local 134, 192 N.L.R.B. 85 (1971) (Illinois Bell ), and IBEW Systems Council U-4, 193 N.L.R.B. 30 (1971) (FP&L ). 19 Local Union No. 2150, IBEW, and Wisconsin Electric Power Co., 192 N.L.R.B. 77 (1971). 20 "We find no discernible difference between the two cases, and for the reasons set forth in that case, we find that, in the instant case, the Union violated Section 8(b)(1)(B) . . . ." Illinois Bell, 192 N.L.R.B., at 86. 21 Id., at 78. 22 193 N.L.R.B., at 31. 23 In Hammond and Skippy, the supervisor also performed some rank-and-file work during the strike. The Board in Hammond characterized the amount of rank-and-file work as minimal, and only incidental to the supervisory functions, but in Skippy, the supervisor performed rank-and-file work for about 30% of his time. In light of the finding that the supervisors performed no rank-and-file writing in this case, we are not presented with that element of the Board's reasoning in Hammond and Skippy. 24 We note also respondent's argument that the limited writing duties—the A-to-H functions—normally performed by the hyphenates should be considered rank-and-file work within the meaning of FP&L. The Administrative Law Judge gave careful attention to the issue and concluded to the contrary, App. to Pet. for Cert. in No. 76-1162, p. 59a, and the Board accepted his findings and conclusions in this respect. We also find them unexceptionable. The dissenting Board member did not premise his opinion on the A-to-H issue. We thus do not have here the situation where the disciplined supervisor has performed not only supervisory duties, including grievance adjustment, but also has done some rank-and-file tasks. See Hammond and Triangle, and also Wisconsin River Valley. 25 It is suggested that there was insufficient proof that the hyphenates who worked actually engaged in grievance adjustment of any kind during the strike. But the findings were to the contrary; and, in any event, there is no question that they were authorized to do so and were available for that purpose when and if the occasion arose. Section 8(b)(1)(B) obviously can be violated by attempting coercively to control the choice of the employer's representative, before, as well as after, the representative has actually dealt with the grievance. 26 App. to Pet. for Cert. in No. 76-1162, p. 62a. 27 Id., at 64a. 28 Id., at 69a. 29 The Administrative Law Judge reasoned, as follows, in support of his conclusion. "To illustrate: A person performing the function of a director acts in a managerial or supervisory capacity, which normally includes the adjustment of grievances of actors, actresses, craft employees and others. One occupying the position of a producer normally has a similar capacity and similar duties with respect to employee grievances. In addition, if the film is being shot on distant location the producer has authority to negotiate on the spot agreements with local unions. Thus when Respondent prevented or sought to prevent, such hyphenate members from going to work in their managerial and supervisory capacities as producers and directors during the strike, Respondent obviously coerced and restrained their employers in the selection of those specific producers and directors for the purpose of collective bargaining and the adjustment of grievances of employees working during the strike within the plain meaning of the statute. Similarly, those persons employed as story editors or in like classifications perform executive functions normally, and appear to have done so during the strike, in which the record indicates they were engaged as supervisors and actual or potential representatives of their employers for the adjustment of grievances. Respondent, by coercing or restraining persons in these classifications from going in to do their normal work thereby actually coerced and restrained their employers from selecting those persons as the employers' representatives for the adjustment of grievances and for collective bargaining during the strike." Id., at 63a-64a. (Footnote omitted.) 30 It is suggested by respondent that the Board did not fully adopt the approach of the Administrative Law Judge, but it is plain that, with the single exception noted above, the Board adopted all of the findings and conclusions of the Administrative Law Judge. 31 The Board's decision holding the union responsible under § 8(b)(1)(B) for the foreseeable course and consequences of its actions is not inconsistent with Teamsters v. NLRB, 365 U.S. 667, 81 S.Ct. 835, 6 L.Ed.2d 11 (1961), and NLRB v. News Syndicate Co., 365 U.S. 695, 81 S.Ct. 849, 6 L.Ed.2d 29 (1961). The holding does not rest on any assumption that the union will act illegally in the future. 32 The findings were also that: "The record is convincing that Respondent, well aware of the primary supervisory, management, and executive functions of its hyphenate-members, drafted its strike rules and enforced them with the intent of compelling those hyphenate-members from going to work during the strike, without regard to the capacity in which they performed or the work done." App. to Pet. for Cert. in No. 76-1162, p. 69a. 33 Violations of Rules 1, 12, 13, and 28 were alleged. See supra, at 416-417, and n. 3. 34 In determining that the Board had exceeded the limitations of the statute in the FP&L and Illinois Bell cases, the Court of Appeals for the District of Columbia Circuit recognized that when a supervisor acts as a grievance adjustor, "he is a representative of management, and as such he should be immune from union discipline. The unions participating in the present cases conceded as much at oral argument when they agreed that when a supervisor crosses a picket line to perform supervisory work he remains immune from discipline. . . . The dividing line between supervisory and nonsupervisory work in the present context is sharply defined and easily understood." 159 U.S.App.D.C., at 286, 487 F.2d, at 1157. As the Court of Appeals for the Seventh Circuit said, "[W]here supervisors cross picket lines to perform rank-and-file struck work, union discipline does not violate Section 8(b)(1)(B) since it merely deprives the employer of services normally rendered by strikebreaking replacement employees." Skippy Enterprises, 532 F.2d 47, 53 (1976). On the other hand, "Where supervisors cross picket lines to perform regular supervisory duties, union discipline violates Section 8(b)(1)(B) since it tends to deprive the employer of its supervisors' services—including their § 8(b)(1)(B) services—and because the supervisors would reasonably anticipate that union discipline would also be imposed if future performance of their § 8(b)(1)(B) functions did not meet with union approval." Ibid. 35 Union discipline might even result in depriving the employer of the supervisors' services forever, if the blacklist involved in this case had been successful. The employer would have had no choice but to let the hyphenate go, since the positions of director, producer, and script editor unavoidably require working with rank-and-file writers. 36 In the FP&L and Illinois Bell cases, the Court of Appeals for the District of Columbia Circuit noted that its consistent view has been that the "basic rationale [of Oakland Mailers ] is consistent with the purposes of Section 8(b)(1)(B) . . . [for] management's right to a free selection would be hollow indeed if the union could dictate the manner in which the selected representative performed his collective bargaining and grievance adjustment duties." 159 U.S.App.D.C., at 282, 283, 487 F.2d, at 1153, 1154. The court also noted its agreement with New Mexico District Council of Carpenters and Joiners of America (A. S. Horner, Inc.), 177 N.L.R.B. 500 (1969), enf'd, 454 F.2d 1116 (CA10 1972), where a union member worked as a supervisor for a company which had no contract with the union. 159 U.S.App.D.C., at 284 n. 19, 487 F.2d, at 1155 n. 19. A fine imposed in these circumstances violated the section because compliance by the supervisor with the union's demands would have required his leaving his job and thus have "the effect of depriving the Company of the services of its selected representative for the purposes of collective bargaining or the adjustment of grievances." 177 N.L.R.B., at 502. The Court of Appeals said that A. S. Horner "thus falls close to the original rationale of § 8(b)(1)(B) which was to permit the employer to keep the bargaining representative of his own choosing." 159 U.S.App.D.C., at 284, n. 19, 487 F.2d, at 1155 n. 19. 37 It is also argued that at the very least the Board erred with respect to director-hyphenates because there is no evidence and no finding that directors ever dealt with writers or adjusted their grievance even if producers and story editors did. Hence, it is alleged that union discipline of directors could not possibly affect their adjustment of writers' grievances during or after the strike for the simple reason that they had none to adjust. But during the strike, no supervisor, writer, director, producer, or story editor had writer grievances to adjust—at least no new grievances—because there were no writers on the job and only the possibility that there might be replacements or a few strikebreakers. Nevertheless, directors, as well as others, had adjustment duties with respect to other employees. The Administrative Law Judge found that directors "hire or effectively recommend the employment of crew and actors, effectively direct such employees, and . . . have authority to and do adjust grievances of such employees." App. to Pet. for Cert. in No. 76-1162, p. 28a. Directors' willingness to work and to perform these duties subjected them to sanctions and financial loss, making them less than completely reliable and effective employer representatives for the duration of the strike, and less likely to perform any supervisory task during future strikes. A union may no more interfere with the employer's choice of a grievance representative with respect to employees represented by other unions than with respect to those employees whom it itself represents. International Organization of Masters, Mates and Pilots, International Marine Division, 197 N.L.R.B. 400 (1972), enf'd, 159 U.S.App.D.C. 11, 14, 486 F.2d 1271, 1274 (1973), cert. denied, 416 U.S. 956, 94 S.Ct. 1970, 40 L.Ed.2d 306 (1974), and International Organization of Masters, Mates and Pilots v. NLRB, 539 F.2d 554, 559-560 (CA5 1976). We note also that all hyphenates, including directors, were threatened with a permanent blacklist—a refusal by other Guild members, including producers, other directors, and story editors, as well as writers, to work with the offending director—and that revocation of the formal rule on April 30 did not completely remove the threat. Because of his central role, refusal to work with a director means refusal to participate at all in a particular film. The union thus threatened a strike by all of its members against the employer who permitted director-hyphenates to work, plainly an independent violation of § 8(b)(1)(B). The Administrative Law Judge found that of the 15 union members employed as directors by petitioners, 3 were charged with strike rule violations, and 1 was brought before a trial panel and disciplined. App. to Pet. for Cert. in No. 76-1162, p. 29a. 1 This interest is protected by § 2(3) of the National Labor Relations Act, which excludes "supervisors" as defined in § 2(11) from the definition of "employees," thereby excluding them from the coverage of the Act. Thus an employer may discharge or otherwise penalize a supervisory employee for engaging in what would otherwise be protected concerted activity under the Act. In addition, § 14(a) of the Act provides that "no employer . . . shall be compelled to deem . . . supervisors as employees for the purpose of any law . . . relating to collective bargaining." See Florida Power & Light Co. v. Electrical Workers, 417 U.S. 790, 808-811, 94 S.Ct. 2737, 2746-2748, 41 L.Ed.2d 477. 2 Since the power to adjust employee grievances is one of the statutory indicia of supervisory status under § 2(11) of the Act, many if not most supervisory employees will fall within the Court's ruling when they are "restrai [ed] . . . from going to work and from performing the normal duties of their positions, which includ[e] the adjustment of grievances." Ante, at 431-432. 3 Under this rule, it would appear that a separate union consisting entirely of supervisory employees would commit an unfair labor practice if it ordered its members not to cross the picket lines of another union, or indeed, if it called an economic strike entirely on its own, since the employer would thereby be deprived of the services of his chosen grievance-adjustment representatives. 4 Alternatively, the employer may ease the dilemma of his supervisory employees by offering to provide their defense or to indemnify them against any fines that might be imposed by the union for a breach of strike discipline. Several of the employers in this case did in fact extend such offers to the hyphenates. See decision of the Administrative Law Judge, App. to Pet. for Cert. in No. 76-1162, p. 42a. 5 In San Francisco-Oakland Mailers Union No. 18 (Northwest Publications, Inc.), 172 N.L.R.B. 2173, the Board found a violation of § 8(b)(1)(B) when a union expelled member-foremen for allegedly assigning bargaining-unit work in violation of the collective-bargaining agreement. It reasoned that the employer's statutory right to choose his bargaining representative would be rendered illusory if the union could effectively control the actions of any individual who happened to occupy the position. I adhere to the view expressed by the Court in FP&L, supra, 417 U.S., at 805, 94 S.Ct., at 2745, that this ruling is at best within the "outer limits" of § 8(b)(1)(B).

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437 U.S. 478 98 S.Ct. 2451 57 L.Ed.2d 364 Jo Ann Evans GARDNER, Petitioner,v.WESTINGHOUSE BROADCASTING COMPANY. No. 77-560. Argued March 22, 1978. Decided June 21, 1978. Syllabus Petitioner, who had been denied employment by respondent's radio station, brought an action seeking injunctive relief against respondent on behalf of herself and other females adversely affected by respondent's alleged practice of discriminating against women. The District Court denied petitioner's motion for class certification under Fed.Rules Civ.Proc. 23(b). Claiming that since the relief that could be granted in favor of the class would be broader than the relief she might obtain as an individual, the denial of class certification in effect refused a substantial portion of the injunctive relief sought, petitioner immediately appealed under 28 U.S.C. § 1292(a)(1), which gives courts of appeals jurisdiction of appeals from interlocutory orders refusing injunctions, but the Court of Appeals held that it had no jurisdiction. Held: The order denying class certification was not appealable under § 1292(a)(1). Pp. 480-482. 559 F.2d 209, affirmed. Robert N. Hackett, Pittsburgh, Pa., for petitioner. Leonard L. Scheinholtz, Pittsburgh, Pa., for respondent. Mr. Justice STEVENS, delivered the opinion of the Court. 1 The United States Court of Appeals for the Third Circuit held that the denial of a class certification could not be appealed immediately under 28 U.S.C. § 1292(a)(1)1 as an order refusing an injunction. 559 F.2d 209. Because there is a conflict among the Circuits on the question whether § 1292(a)(1) authorizes such an appeal,2 we granted certiorari. 434 U.S. 984, 98 S.Ct. 608, 54 L.Ed.2d 477. We affirm. 2 Petitioner unsuccessfully applied for employment as a radio talk-show host at a station owned by respondent. She then brought this civil rights action on behalf of herself and other females adversely affected by respondent's alleged practice of discriminating against women. The class she sought to represent included respondent's past, present, and future female employees; unsuccessful female applicants; females deterred by respondent's reputation from applying for employment; and females who will not in the future be considered for employment by respondent on account of their sex. Her complaint prayed for equitable relief for the entire class.3 3 Petitioner moved for a class certification pursuant to Fed.Rule Civ.Proc. 23(b).4 The District Court denied the motion on the grounds that petitioner's claim was not typical and that the case did not present questions of law or fact common to the class. She immediately appealed, invoking the jurisdiction of the Court of Appeals under § 1292(a)(1).5 4 Petitioner argues that the relief that could be granted in favor of the class if she prevails would be broader than the relief that she may obtain as an individual. The practical effect of the denial of class certification is, therefore, to refuse a substantial portion of the injunctive relief requested in the complaint. Relying on our decision in General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 53 S.Ct. 202, 77 L.Ed. 408, petitioner then argues that this sort of effect on a request for injunctive relief establishes appealability under § 1292(a)(1). We cannot agree; indeed the argument misconceives both the scope of § 1292(a)(1) and the import of decisions such as General Electric. 5 The history of § 1292(a)(1), which we reviewed in Baltimore Contractors v. Bodinger, 348 U.S. 176, 178-181, 75 S.Ct. 249, 250-252, 99 L.Ed. 233, need not be repeated. It is sufficient to note that the statute creates an exception from the long-established policy against piecemeal appeals, which this Court is not authorized to enlarge or extend. The exception is a narrow one and is keyed to the "need to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence." Id., at 181, 75 S.Ct. at 252. 6 The order denying class certification in this case did not have any such "irreparable" effect. It could be reviewed both prior to and after final judgment;6 it did not affect the merits of petitioner's own claim; and it did not pass on the legal sufficiency of any clai § for injunctive relief.7 This stands in sharp contrast to the order in General Electric.8 In that case the Court held that an order dismissing a counterclaim for an injunction was appealable. The order, therefore, entirely disposed of the defendant's prayer for injunctive relief; here, the order merely limits the scope of the relief that may ultimately be granted. While it may have a significant effect on the litigation, "[m]any interlocutory orders are equally important, . . . but they are not for that reason converted into injunctions." Morgantown v. Royal Insurance Co., 337 U.S. 254, 258, 69 S.Ct. 1067, 1069, 93 L.Ed. 1347. 7 As we stated in Switzerland Cheese Assn., Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 24, 87 S.Ct. 193, 195, 17 L.Ed.2d 23, "we approach this statute [§ 1292(a)(1)] somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders." The exception does not embrace orders that have no direct or irreparable impact on the merits of the controversy. The order in this case, like the order in Switzerland Cheese, had no such impact; it "in no way touch[ed] on the merits of the claim but only relate[d] to pretrial procedures . . . ." Id. at 25, 87 S.Ct., at 195.9 A holding that such an order falls within § 1292(a)(1) would compromise "the integrity of the congressional policy against piecemeal appeals." 385 U.S., at 25, 87 S.Ct., at 195. 8 The judgment is affirmed. 9 It is so ordered. 1 "§ 1292. Interlocutory decisions. "(a) The courts of appeals shall have jurisdiction of appeals from: "(1) Interlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court . . . ." 2 Compare Williams v. Wallace Silversmiths, Inc., 566 F.2d 364 (CA2 1977); Williams v. Mumford, 167 U.S.App.D.C. 125, 511 F.2d 363 (1975), cert. denied, 423 U.S. 828, 96 S.Ct. 47, 46 L.Ed.2d 46 (holding that such orders are not immediately appealable under § 1292(a)(1)), with Smith v. Merchants & Farmers Bank, 574 F.2d 982 (CA8 1978); Jones v. Diamond, 519 F.2d 1090 (CA5 1975); Price v. Lucky Stores, Inc., 501 F.2d 1177 (CA9 1974); Yaffe v. Powers, 454 F.2d 1362 (CA1 1972); Brunson v. Board of Trustees of School District 1, 311 F.2d 107 (CA4 1962), cert. denied, 373 U.S. 933, 83 S.Ct. 1538, 10 L.Ed.2d 690 (holding that such orders are appealable). 3 Petitioner did not file a motion for a preliminary injunction; for that reason, the issue decided in Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164 (CA7 1976), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (plaintiff's appeal from denial of class certification and denial of preliminary injunction held within appellate jurisdiction), is not before us. 4 On the same day that she filed her motion for class-action certification, petitioner also filed a motion to compel respondent to answer interrogatories concerning its employee rosters at other radio stations, owned and operated by respondent and located in other cities. The District Court did not pass on this second motion because it denied class-action certification. 5 Petitioner did not seek certification of her appeal pursuant to § 1292(b). 6 As the Court of Appeals noted, a decision on class-action status "may be conditional, subject to alteration or amendment prior to final judgment, F.R.Civ.P. 23(c)(1) . . . . If, after judgment on the merits, the relief granted is deemed unsatisfactory, the question of class status is fully reviewable." 559 F.2d 209, 212; see also United Airlines, Inc. v. McDonald, 432 U.S. 385, 393, 97 S.Ct. 2464, 2469, 53 L.Ed.2d 423. 7 There is an important distinction between an order denying an injunction on the merits and "one based on alleged abuse of a discretionary power over the scope of the action." Stewart-Warner Corp. v. Westinghouse Electric Corp., 325 F.2d 822, 829 (CA2 1963) (Friendly, J., dissenting). "Where the order is of the former type, the danger of serious harm from the court's erroneous belief in the existence of a legal barrier to its entertaining a claim for an injunction has been thought to outweigh the general undesirability of interlocutory appeals. The very fact that the second type of order hinges on the trial court's discretion is itself an indication that such orders, relating primarily to convenience in litigation, carry a lesser threat of harm." Ibid. 8 In addition to General Electric, petitioner relies on Enelow v. New York Life Insurance Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440, and Ettelson v. Metropolitan Life Insurance Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176. Both of those cases, however, rest on the distinction between "legal" and "equitable" claims and supply no precedential weight for petitioner's argument. Our characterization of those cases in Morgantown v. Royal Insurance Co., 337 U.S. 254, 258, 69 S.Ct. 1067, 1069, 93 L.Ed. 1347, is equally applicable here: "[D]istinctions from common-law practice which supported our conclusions in the Enelow and Ettelson cases supply no analogy competent to make an injunction of what in any ordinary understanding of the word is not one." 9 In Switzerland Cheese we held that an order denying a motion for summary judgment was not within § 1292(a). Inasmuch as the requested summary judgment would have included an injunction against trademark infringement, that order was, if anything, a more direct refusal of an injunction than the order denying class certification in this case. Of course, in one sense, the denial of class certification, like the denial of a summary judgment, does "touch on the merits," since a court must consider whether the complaint reveals common que tions of law and fact, or whether there is a material issue of disputed fact. But this determination does not otherwise reflect on the legal sufficiency of the claim for injunctive relief.

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57 L.Ed.2d 351 98 S.Ct. 2454 437 U.S. 463 COOPERS & LYBRAND, Petitioner,v.Cecil LIVESAY and Dorothy Livesay, etc., et al. No. 76-1836. Argued March 22, 1978. Decided June 21, 1978. Syllabus Respondents, who had purchased securities in reliance on a prospectus, brought this action on behalf of themselves and a class of similarly situated purchasers, alleging that petitioner accounting firm had violated the federal securities laws. The District Court first certified the action as a class action under Fed.Rule Civ.Proc. 23, and then, after further proceedings, decertified the class. Respondents then filed a notice of appeal pursuant to 28 U.S.C. § 1291, under which courts of appeals have jurisdiction of appeals from all "final decisions" of the district courts except where a direct review may be had in the Supreme Court. After examining the amount of respondents' claims in relation to their financial resources and the probable cost of the litigation, the Court of Appeals concluded that they would not pursue their claims individually. On the basis of the "death knell" doctrine (which assumes that without the incentive of a possible group recovery the individual plaintiff may find it economically imprudent to pursue his lawsuit to a final judgment and then seek appellate review of an adverse class determination), the Court of Appeals held that it had jurisdiction to hear the appeal, and reversed the District Court's order decertifying the class. Respondents contend in this Court that an order denying class certification is appealable under both the "death knell" doctrine and the "collateral order" exception articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528. Held: 1. The "collateral order" exception does not apply to a prejudgment order denying class certification because such an order is subject to revision in the District Court, Fed.Rule Civ.Proc. 23(c)(1); involves considerations that are "enmeshed in the factual and legal issues comprising the plaintiff's cause of action," Mercantile Nat. Bank v. Langdeau, 371 U.S. 555, 558, 83 S.Ct. 520, 522, 9 L.Ed.2d 523; and is subject to effective review after final judgment at the behest of the named plaintiff or intervening class members. United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423. Pp. 468-469. 2. Nor does the "death knell" doctrine support appellate jurisdiction of a prejudgment order denying class certification. Pp. 469-476. (a) The formulation of an appealability rule that turns on the amount of the plaintiff's claim is plainly a legislative, not a judicial, function. Pp. 472-473. (b) The alternative approach to the "death knell" rule that is based on a thorough study of the possible impact of the class order on the fate of the litigation would have a seriously debilitating effect on the administration of justice. The district court would have to take evidence, entertain argument, and make findings, which the court of appeals would have to review simply to determine whether a discretionary class determination is subject to appellate review, with the possibility of remand for further factual development. Further appeals from adverse rulings on other grounds could likewise be anticipated. Pp. 473-474. (c) Perhaps the principal vice of the doctrine is that it authorizes indiscriminate interlocutory review of the trial judge's decisions, circumventing restrictions imposed by the Interlocutory Appeals Act of 1958. Pp. 474-475. (d) The doctrine favors only plaintiffs even though the class issue will often be critically important to defendants as well. P. 476. (e) Allowing appeals as a matter of right from nonfinal orders that turn on the facts of a particular case thrusts appellate courts indiscriminately into the trial process, thus defeating a vital purpose of the final-judgment rule of maintaining the appropriate relationship between the respective courts. P. 476. 550 F.2d 1106, reversed. Thomas C. Walsh, St. Louis, Mo., for petitioner. Melvyn I. Weiss, New York City, for respondents. Mr. Justice STEVENS delivered the opinion of the Court. 1 The question in this case is whether a district court's determination that an action may not be maintained as a class action pursuant to Fed.Rule Civ.Proc. 23 is a "final decision" within the meaning of 28 U.S.C. § 12911 and therefore appealable as a matter of right. Because there is a conflict in the Circuits over this issue,2 we granted certiorari and now hold that such an order is not appealable under § 1291. 2 Petitioner, Coopers & Lybrand, is an accounting firm that certified the financial statements in a prospectus issued in connection with a 1972 public offering of securities in Punta Gorda Isles for an aggregate price of over $18 million. Respondents purchased securities in reliance on that prospectus. In its next annual report to shareholders, Punta Gorda restated the earnings that had been reported in the prospectus for 1970 and 1971 by writing down its net income for each year by over $1 million. Thereafter, respondents sold their Punta Gorda securities and sustained a loss of $2,650 on their investment. 3 Respondents filed this action on behalf of themselves and a class of similarly situated purchasers. They alleged that petitioner and other defendants3 had violated various sections of the Securities Act of 1933 and the Securities Exchange Act of 1934.4 The District Court first certified, and then, after further proceedings, decertified the class. 4 Respondents did not request the District Court to certify its order for interlocutory review under 28 U.S.C. § 1292(b).5 Rather, they filed a notice of appeal pursuant to § 1291.6 The Court of Appeals regarded its appellate jurisdiction as depend ng on whether the decertification order had sounded the "death knell" of the action. After examining the amount of respondents' claims in relation to their financial resources and the probable cost of the litigation, the court concluded that they would not pursue their claims individually.7 The Court of Appeals therefore held that it had jurisdiction to hear the appeal and, on the merits, reversed the order decertifying the class. Livesay v. Punta Gorda Isles, Inc., 550 F.2d 1106. 5 Federal appellate jurisdiction generally depends on the existence of a decision by the District Court that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911.8 An order refusing to certify, or decertifying, a class does not of its own force terminate the entire litigation because the plaintiff is free to proceed on his individual claim. Such an order is appealable, therefore, only if it comes within an appropriate exception to the final-judgment rule. In this case respondents rely on the "collateral order" exception articulated by this Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, and on the "death knell" doctrine adopted by several Circuits to determine the appealability of orders denying class certification. 6 * In Cohen, the District Court refused to order the plaintiff in a stockholder's derivative action to post the security for costs required by a New Jersey statute. The defendant sought immediate review of the question whether the state statute applied to derivative suits in federal court. This Court noted that the purpose of the finality requirement "is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results." Id., at 546, 69 S.Ct., at 1225. Because immediate review of the District Court's order was consistent with this purpose, the Court held it appealable as a "final decision" under § 1291. The ruling had "settled conclusively the corporation's claim that it was entitled by state law to require the shareholder to post security for costs . . . [and] concerned a collateral matter that could not be reviewed effectively on appeal from the final judgment."9 7 To come within the "small class" of decisions excepted from the final-judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.10 Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651; United States v. MacDonald, 435 U.S. 850, 855, 98 S.Ct. 1547, 1549, 56 L.Ed.2d 18. An order passing on a request for class certification does not fall in that category. First, such an order is subject to revision in the District Court. Fed.Rule Civ.Proc. 23(c)(1).11 Second, the class determination generally involves considerations that are "enmeshed in the factual and legal issues comprising the plaintiff's cause of action." Mercantile Nat. Bank v. Langdeau, 371 U.S. 555, 558, 83 S.Ct. 520, 522, 9 L.Ed.2d 523.12 Finally, an order denying class certification is subject to effective review after final judgment at the behest of the named plaintiff or intervening class members. United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423. For these reasons, as the Courts of Appeals have consistently recognized,13 the collateral-order doctrine is not applicable to the kind of order involved in this case. II 8 Several Circuits, including the Court of Appeals in this case, have held that an order denying class certification is appealable if it is likely to sound the "death knell" of the litigation.14 The "death knell" doctrine assumes that without the incentive of a possible group recovery the individual plaintiff may find it economically imprudent to pursue his lawsuit to a final judgment and then seek appellate review of an adverse class determination. Without questioning this assumption, we hold that orders relating to class certification are not independently appealable under § 1291 prior to judgment. 9 In addressing the question whether the "death knell" doctrine supports mandatory appellate jurisdiction of orders refusing to certify class actions, the parties have devoted a portion of their argument to the desirability of the small-claim class action. Petitioner's opposition to the doctrine is based in part on criticism of the class action as a vexatious kind of litigation. Respondents, on the other hand, argue that the class action serves a vital public interest and, therefore, special rules of appellate review are necessary to ensure that district judges are subject to adequate supervision and control. Such policy arguments, though proper for legislative consideration, are irrelevant to the issue we must decide. 10 There are special rules relating to class actions and, to that extent, they are a special kind of litigation. Those rules do not, however, contain any unique provisions governing appeals. The appealability of any order entered in a class action is determined by the same standards that govern appealability in other types of litigation. Thus, if the "death knell" doctrine has merit, it would apply equally to the many interlocutory orders in ordinary litigation—rulings on discovery, on venue, on summary judgment—that may have such tactical economic significance that a defeat is tantamount to a "death knell" for the entire case. 11 Though a refusal to certify a class is inherently interlocutory, it may induce a plaintiff to abandon his individual claim. On the other hand, the litigation will often survive an adverse class determination. What effect the economic disincentives created by an interlocutory order may have on the fate of any litigation will depend on a variety of factors.15 Under the "death knell" doctrine, appealability turns on the court's perception of that impact in the individual case. Thus, if the court believes that the plaintiff has adequate incentive to continue, the order is considered interlocutory; but if the court concludes that the ruling, as a practical matter, makes further litigation improbable, it is considered an appealable final decision. 12 The finality requirement in § 1291 evinces a legislative judgment that "[r]estricting appellate review to 'final decisions' prevents the debilitating effect on judicial administration caused by piecemeal appeal disposition of what is, in practical consequence, but a single controversy." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732. Although a rigid insistence on tec nical finality would sometimes conflict with the purposes of the statute, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, even adherents of the "death knell" doctrine acknowledge that a refusal to certify a class does not fall in that limited category of orders which, though nonfinal, may be appealed without undermining the policies served by the general rule. It is undisputed that allowing an appeal from such an order in the ordinary case would run "directly contrary to the policy of the final judgment rule embodied in 28 U.S.C. § 1291 and the sound reasons for it . . . ."16 Yet several Courts of Appeals have sought to identify on a case-by-case basis those few interlocutory orders which, when viewed from the standpoint of economic prudence, may induce a plaintiff to abandon the litigation. These orders, then, become appealable as a matter of right. 13 In administering the "death knell" rule, the courts have used two quite different methods of identifying an appealable class ruling. Some courts have determined their jurisdiction by simply comparing the claims of the named plaintiffs with an arbitrarily selected jurisdictional amount;17 others have undertaken a thorough study of the possible impact of the class order on the fate of the litigation before determining their jurisdiction. Especially when consideration is given to the consequences of applying these tests to pretrial orders entered in non-class-action litigation, it becomes apparent that neither provides an acceptable basis for the exercise of appellate jurisdiction. 14 The formulation of an appealability rule that turns on the amount of the plaintiff's claim is plainly a legislative, not a judicial, function. While Congress could grant an appeal of right to those whose claims fall below a specific amount in controversy, it has not done so. Rather, it has made "finality" the test of appealability. Without a legislative prescription, an amount-in-controversy rule is necessarily an arbitrary measure of finality because it ignores the variables that inform a litigant's decision to proceed, or not to proceed, in the face of an adverse class ruling.18 Moreover, if the jurisdictional amount is to be measured by the aggregated claims of the named plaintiffs, appellate jurisdiction may turn on the joinder decisions of counsel rather than the finality of the order.19 15 While slightly less arbitrary, the alternative approach to the "death knell" rule would have a serious debilitating effect on the admin stration of justice. It requires class-action plaintiffs to build a record in the trial court that contains evidence of those factors deemed relevant to the "death knell" issue and district judges to make appropriate findings.20 And one Court of Appeals has even required that the factual inquiry be extended to all members of the class because the policy against interlocutory appeals can be easily circumvented by joining "only those whose individual claims would not warrant the cost of separate litigation";21 to avoid this possibility, the named plaintiff is required to prove that no member of the purported class has a claim that warrants individual litigation. 16 A threshold inquiry of this kind may, it is true, identify some orders that would truly end the litigation prior to final judgment; allowing an immediate appeal from those orders may enhance the quality of justice afforded a few litigants. But this incremental benefit is outweighed by the impact of such an individualized jurisdictional inquiry on the judicial system's overall capacity to administer justice. 17 The potential waste of judicial resources is plain. The district court must take evidence, entertain argument, and make findings; and the court of appeals must review that record and those findings simply to determine whether a discretionary class determination is subject to appellate review. And if the record provides an inadequate basis for this determination, a remand for further factual development may be required.22 Moreover, even if the court makes a "death knell" finding and reviews the class-designation order on the merits, there is no assurance that the trial process will not again be disrupted by interlocutory review. For even if a ruling that the plaintiff does not adequately represent the class is reversed on appeal, the district court may still refuse to certify the class on the ground that, for example, common questions of law or fact do not predominate. Under the "death knell" theory, plaintiff would again be entitled to an appeal as a matter of right pursuant to § 1291. And since other kinds of interlocutory orders may also create the risk of a premature demise, the potential for multiple appeals in every complex case is apparent and serious. 18 Perhaps the principal vice of the "death knell" doctrine is that it authorizes indiscriminate interlocutory review of decisions made by the trial judge. The Interlocutory Appeals Act of 1958, 28 U.S.C. § 1292(b),23 was enacted to meet the recognized need for prompt review of certain nonfinal orders. However, Congress carefully confined the availability of such review. Nonfinal orders could never be appealed as a matter of right. Moreover, the discretionary power to permit an interlocutory appeal is not, in the first instance, vested in the courts of appeals.24 A party seeking review of a nonfinal order must first obtain the consent of the trial judge. This screening procedure serves the dual purpose of ensuring that such review will be confined to appropriate cases and avoiding time-consuming jurisdictional determinations in the court of appeals.25 Finally, even if the district judge certifies the order under § 1292(b), the appellant still "has the burden of persuading the court of appeals that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Fisons, Ltd. v. United States, 458 F.2d 1241, 1248 (CA7 1972). The appellate court may deny the appeal for any reason, including docket congestion.26 By permitting appeals of right from class-designation orders after jurisdictional determinations that turn on questions of fact, the "d ath knell" doctrine circumvents these restrictions.27 19 Additional considerations reinforce our conclusion that the "death knell" doctrine does not support appellate jurisdiction of prejudgment orders denying class certification. First, the doctrine operates only in favor of plaintiffs even though the class issue—whether to certify, and if so, how large the class should be—will often be of critical importance to defendants as well. Certification of a large class may so increase the defendant's potential damages liability and litigation costs that he may find it economically prudent to settle and to abandon a meritorious defense. Yet the Courts of Appeals have correctly concluded that orders granting class certification are interlocutory. Whatever similarities or differences there are between plaintiffs and defendants in this context involve questions of policy for Congress.28 Moreover, allowing appeals of right from nonfinal orders that turn on the facts of a particular case thrusts appellate courts indiscriminately into the trial process and thus defeats one vital purpose of the final-judgment rule—"that of maintaining the appropriate relationship between the respective courts. . . . This goal, in the absence of most compelling reasons o the contrary, is very much worth preserving."29 20 Accordingly, we hold that the fact that an interlocutory order may induce a party to abandon his claim before final judgment is not a sufficient reason for considering it a "final decision" within the meaning of § 1291.30 The judgment of the Court of Appeals is reversed with directions to dismiss the appeal. 21 It is so ordered. 1 "The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . except where a direct review may be had in the Supreme Court." 2 Compare Hackett v. General Host Corp., 455 F.2d 618 (CA3 1972), cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812; King v. Kansas City Southern Industries, Inc., 479 F.2d 1259 (CA7 1973) (holding that such an order is not immediately appealable under § 1291), with Hartmann v. Scott, 488 F.2d 1215 (CA8 1973); Ott v. Speedwriting Pub. Co., 518 F.2d 1143 (CA6 1975); Eisen v. Carlisle & Jacquelin, 370 F.2d 119 (CA2 1966), cert. denied, 386 U.S. 1035, 87 S.Ct. 1487, 18 L.Ed.2d 598 (holding that such an order is immediately appealable under § 1291). 3 The other defendants, Punta Gorda and several of its officers and directors, also filed a petition for writ of certiorari in this Court. Punta Gorda Isles, Inc. v. Livesay, No. 76-1837. After we granted certiorari in this case and No. 76-1837, 434 U.S. 954, 98 S.Ct. 478, 54 L.Ed.2d 312, the parties entered into a tentative settlement agreement. Respondents and petitioners in No. 76-1837 agreed to dismiss that petition; petitioner in this case, however, did not stipulate to dismissal of its petition. In view of the tentative nature of the settlement, this case is not moot. 4 §§ 11, 12(2) and 17(b) of the Securities Act of 1933, 15 U.S.C. §§ 77k, 77l (2), and 77q(b) (1976 ed.), and § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1976 ed.). 5 Section 1292(b) provides: "When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order." 6 Respondents also petitioned for a writ of mandamus directing the District Court to recertify the class. Since the Court of Appeals accepted appellate jurisdiction, it dismissed the petition for a writ of mandamus. 7 "Plaintiffs, both of whom are employed, have an aggregate yearly gross income of $26,000. Their total net worth is approximately $75,000, but only $4,000 of this sum is in cash. The remainder consists of equity in their home and investments. "As of December 1974 plaintiffs had already incurred expenses in excess of $1,200 in connection with this lawsuit. Plaintiffs' new counsel has estimated expenses of this lawsuit to be $15,000. The nature of this case will require extensive discovery, much of which must take place in Florida, where most defendants reside. Moreover, the allegations regarding the prospectus and financial statements will likely require expert testimony at trial. "After considering all the relevant information in the record, we are convinced that plaintiffs have sustained their burden of showing that they will not pursue their individual claim if the decertification order stands. Although plaintiffs' total net worth could absorb the cost of this litigation, 'it [takes] no great understanding of the mysteries of high finance to make obvious the futility of spending a thousand dollars to get a thousand dollars—or even less.' Douglas, Protective Committees in Railroad Reorganizations, 47 Harv.L.Rev. 565, 567 (1934). We conclude we have jurisdiction to hear the appeal." Livesay v. Punta Gorda Isles, Inc., 550 F.2d 1106, 1109-1110. 8 For a unanimous Court in Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 541, 84 L.Ed. 783, Mr. Justice Frankfurter wrote: "Since the right to a judgment from more than one court is a matter of grace and not a necessary ingredient of justice, Congress from the very beginning has, by forbidding piecemeal disposition on appeal of what for practical purposes is a single controversy, set itself against enfeebling judicial administration. Thereby is avoided the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment. To be effective, judicial administration must not be leaden-footed. Its momentum would be arrested by permitting separate reviews of the component elements in a unified cause." 9 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732. 10 As the Court summarized the rule in Cohen: "This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." 337 U.S., at 546, 69 S.Ct., at 1225. 11 The Rule provides that an order involving class status may be "altered or amended before the decision on the merits." Thus, a district court's order denying or granting class status is inherently tentative. 12 "Evaluation of many of the questions entering into determination of class action questions is intimately involved with the merits of the claims. The typicality of the representative's claims or defenses, the adequacy of the representative, and the presence of common questions of aw or fact are obvious examples. The more complex determinations required in Rule 23(b)(3) class actions entail even greater entanglement with the merits . . . ." 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3911, p. 485 n. 45 (1976). 13 See, e. g., King v. Kansas City Southern Industries, Inc., 479 F.2d 1259 (CA7 1973); Williams v. Mumford, 167 U.S.App.D.C. 125, 511 F.2d 363 (1975), cert. denied, 423 U.S. 828, 96 S.Ct. 47, 46 L.Ed.2d 46. 14 See n.2, supra. 15 E. g., the plaintiff's resources; the size of his claim and his subjective willingness to finance prosecution of the claim; the probable cost of the litigation and the possibility of joining others who will share that cost; and the prospect of prevailing on the merits and reversing an order denying class certification. 16 Korn v. Franchard Corp., 443 F.2d 1301, 1305 (CA2 1971). 17 Thus, orders denying class certification have been held nonappealable because the plaintiffs alleged damages in the $3,000-$8,000 range. Shayne v. Madison Square Garden, 491 F.2d 397 (CA2 1974); Korn v. Franchard Corp., supra; Gosa v. Securities Inv. Co., 449 F.2d 1330 (CA5 1971); Domaco Venture Capital Fund v. Teltronics Services, Inc., 551 F.2d 508 (CA2 1977). Smaller claims, however, have been held sufficient to support appellate jurisdiction in other cases. See, e. g., Green v. Wolf Corp., 406 F.2d 291 (CA2 1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766. 18 See n. 15, supra. Thus, it is not at all clear that the prospect of recovering $3,000 would provide more incentive to sustain complex litigation against corporate defendants than the prospect of recovering $1,000. Yet the amount-in-controversy test allows an appeal in the latter case but not in the former. Compare Green v. Wolf Corp., supra, at 295 n. 6, with Gosa v. Securities Inv. Co., supra. The arbitrariness of this approach is exacerbated by the fact that the Courts of Appeals have not settled on a specific jurisdictional amount; rather, they have simply determined on an ad hoc basis whether the plaintiff's claim is too small to warrant individual prosecution. 19 Cf. Milberg v. Western Pacific R. Co., 443 F.2d 1301 (CA2 1971). 20 See, e. g., Hooley v. Red Carpet Corp., 549 F.2d 643 (CA9 1977); Ott v. Speedwriting Pub. Co., 518 F.2d 1143 (CA6 1975). 21 Hooley v. Red Carpet Corp., supra, at 645. 22 See, e. g., Jelfo v. Hickok Mfg. Co., 531 F.2d 680, 681 (CA2 1976). 23 See n. 5, supra. 24 Thus, Congress rejected the notion that the courts of appeals should be free to entertain interlocutory appeals whenever, in their discretion, it appeared necessary to avoid unfairness in the particular case. H.R.Rep.No.1667, 85th Cong., 2d Sess., 4-6 (1958); Note, Interlocutory Appeals in the Federal Courts under 28 U.S.C. § 1292(b), 88 Harv.L.Rev. 607, 610 (1975). 25 H.R.Rep. No. 1667, supra, at 5-6: "We also recognize that such savings may be nullified in practice by indulgent extension of the amendment to inappropriate cases or by enforced consideration in Courts of Appeals of many ill-founded applications for review. The problem, therefore, is to provide a procedural screen through which only the desired cases may pass, and to avoid the wastage of a multitude of fruitless applications to invoke the amendment contrary to its purpose. . . . " . . . Requirement that the Trial Court certify the case as appropriate for appeal serves the double purpose of providing the Appellate Court with the best informed opinion that immediate review is of value, and at once protects appellate dockets against a flood of petitions in inappropriate cases. . . . [A]voidance of ill-founded applications in the Courts of Appeals for piecemeal review is of particular concern. If the consequence of change is to be crowded appellate dockets as well as any substantial number of unjustified delays in the Trial Court, the benefits to be expected from the amendment may well be outweighed by the lost motion of preparation, consideration, and rejection of unwarranted applications for its benefits." 26 Hearings on H.R. 6238 and H.R. 7260 before Subcommittee No. 3 of the House Committee on the Judiciary, 85th Cong., 2d Sess., p. 21 (1958). 27 Several Courts of Appeals have heard appeals from discretionary class determinations pursuant to § 1292(b). See, e. g., Lukenas v. Bryce's Mountain Resort, Inc., 538 F.2d 594 (CA4 1976); Susman v. Lincoln American Corp., 561 F.2d 86 (CA7 1977). See also Samuel v. University of Pittsburgh, 506 F.2d 355 (CA3 1974). As Judge Friendly has noted: "[T]he best solution is to hold that appeals from the grant or denial of class action designation can be taken only under the procedure for interlocutory appeals provided by 28 U.S.C. § 1292(b). . . . Since the need for review of class action orders turns on the facts of the particular case, this procedure is preferable to attempts to formulate standards which are necessarily so vague as to give rise to undesirable jurisdictional litigation with concomitant expense and delay." Parkinson v. April Industries, Inc., 520 F.2d 650, 660 (CA2 1975) (concurring opinion). 28 "The Congress is in a position to weigh the competing interests of the dockets of the trial and appellate courts, to consider the practicability of savings in time and expense, and to give proper weight to the effect on litigants. . . . This Court . . . is not authorized to approve or declare judicial modification. It is the responsibility of all courts to see that no unauthorized extension or reduction of jurisdiction, direct or indirect, occurs in the federal system. . . . Any such ad hoc decisions disorganize practice by encouraging attempts to secure or oppose appeals with a consequent waste of time and money. The choices fall in the legislative domain." Baltimore Contractors v. Bodinger, 348 U.S. 176, 181-182, 75 S.Ct. 249, 252-53, 99 L.Ed. 233. 29 Parkinson v. April Industries, Inc., supra, 520 F.2d, at 654. 30 Respondents also suggest that the Court's decision in Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199, supports appealability of a class-designation order as a matter of right. We disagree. In Gillespie, the Court upheld an exercise of appellate jurisdiction of what it considered a marginally final order that disposed of an unsettled issue of national significance because review of that issue unquestionably "implemented the same policy Congress sought to promote in § 1292(b)," id., at 154, 85 S.Ct. at 312, and the arguable finality issue had not been presented to this Court until argument on the merits, thereby ensuring that none of the policies of judicial economy served by the finality requirement would be achieved were the case sent back with the important issue undecided. In this case, in contrast, respondents sought review of an inherently nonfinal order that tentatively resolved a question that turns on the facts of the individual case; and, as noted above, the indiscriminate allowance of appeals from such discretionary orders is plainly inconsistent with the policies promoted by § 1292(b). If Gillespie were extended beyond the unique facts of that case, § 1291 would be stripped of all significance.

89

437 U.S. 385 98 S.Ct. 2408 57 L.Ed.2d 290 Rufus Junior MINCEY, Petitioner,v.State of ARIZONA. No. 77-5353. Argued Feb. 21, 1978. Decided June 21, 1978. Syllabus During a narcotics raid on petitioner's apartment by an undercover police officer and several plainclothes policemen, the undercover officer was shot and killed, and petitioner was wounded, as were two other persons in the apartment. Other than looking for victims of the shooting and arranging for medical assistance, the narcotics agents, pursuant to a police department directive that police officers should not investigate incidents in which they are involved, made no further investigation. Shortly thereafter, however, homicide detectives arrived on the scene to take charge of the investigation, and they proceeded to conduct an exhaustive four-day warrantless search of the apartment, which included the opening of dresser drawers, the ripping up of carpets, and the seizure of 200 to 300 objects. In the evening of the same day as the raid, one of the detectives went to the hospital where petitioner was confined in the intensive-care unit, and, after giving him Miranda warnings, persisted in interrogating him while he was lying in bed barely conscious, encumbered by tubes, needles, and a breathing apparatus, and despite the fact that he repeatedly asked that the interrogation stop until he could get a lawyer. Subsequently, petitioner was indicted for, and convicted of, murder, assault, and narcotics offenses. At his trial in an Arizona court, during which much of the evidence introduced against him was the product of the four-day search, and on appeal, petitioner contended that the evidence used against him had been unlawfully seized from his apartment without a warrant and that statements obtained from him at the hospital, used to impeach his credibility, were inadmissible because they had not been made voluntarily. The Arizona Supreme Court reversed the murder and assault convictions on state-law grounds, but affirmed the narcotics convictions, holding that the warrantless search of a homicide scene is permissible under the Fourth and Fourteenth Amendments and that petitioner's statements in the hospital were voluntary. Held : 1. The "murder scene exception" created by the Arizona Supreme Court to the warrant requirement is inconsistent with the Fourth and Fourteenth Amendments, and the warrantless search of petitioner's apartment was not constitutitionally permissible simply because a homicide had occurred there. Pp. 388-395. (a) The search cannot be justified on the ground that no constitutionally protected right of privacy was invaded, it being one thing to say that one who is legally taken into police custody has a lessened right of privacy in his person, and quite another to argue that he also has a lessened right of privacy in his entire house. Pp. 391-392. (b) Nor can the search be justified on the ground that a possible homicide inevitably presents an emergency situation, especially since there was no emergency threatening life or limb, all persons in the apartment having been located before the search began. Pp. 392-393. (c) The seriousness of the offense under investigation did not itself create exigent circumstances of the kind that under the Fourth Amendment justify a warrantless search, where there is no indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant and there is no suggestion that a warrant could not easily and conveniently have been obtained. Pp. 393-394. (d) The Arizona Supreme Court's guidelines for the "murder scene exception" did not afford sufficient protection to a person in whose home a homicide or assault occurs, where they conferred unbridled discretion upon the individual officer to interpret such terms as "reasonable . . . search," "serious personal injury with likelihood of death where there is reason to suspect foul play," and "reasonable period," it being this kind of judgmental assessment of the reasonableness and scope of a proposed search that the Fourth Amendment requires be made by a neutral and objective magistra e, not a police officer. Pp. 394-395. 2. Due process requires that the statements obtained from petitioner in the hospital not be used in any way against him at his trial, where it is apparent from the record that they were not "the product of his free and rational choice," Greenwald v. Wisconsin, 390 U.S. 519, 521, 88 S.Ct. 1152, 1153, 20 L.Ed.2d 77, but to the contrary that he wanted not to answer his interrogator, and that while he was weakened by pain and shock, isolated from family, friends, and legal counsel, and barely conscious, his will was simply overborne. While statements made by a defendant in circumstances violating the strictures of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, are admissible for impeachment if their "trustworthiness . . . satisfies legal standards," Harris v. New York, 401 U.S. 222, 224, 91 S.Ct. 643, 645, 28 L.Ed.2d 1; Oregon v. Hass, 420 U.S. 714, 722, 95 S.Ct. 1215, 1220, 43 L.Ed.2d 570, any criminal trial use against a defendant of his involuntary statement is a denial of due process of law. Pp. 396-402. 115 Ariz. 472, 566 P.2d 273, reversed and remanded. Richard Oseran, Tucson, Ariz., for petitioner. Galen H. Wilkes, Phoenix, Ariz., for respondent. Mr. Justice STEWART delivered the opinion of the Court. 1 On the afternoon of October 28, 1974, undercover police officer Barry Headricks of the Metropolitan Area Narcotics Squad knocked on the door of an apartment in Tucson, Ariz., occupied by the petitioner, Rufus Mincey. Earlier in the day, Officer Headricks had allegedly arranged to purchase a quantity of heroin from Mincey and had left, ostensibly to obtain money. On his return he was accompanied by nine other plainclothes policemen and a deputy county attorney. The door was opened by John Hodgman, one of three acquaintances of Mincey who were in the living room of the apartment. Officer Headricks slipped inside and moved quickly into the bedroom. Hodgman attempted to slam the door in order to keep the other officers from entering, but was pushed back against the wall. As the police entered the apartment, a rapid volley of shots was heard from the bedroom. Officer Headricks emerged and collapsed on the floor. When other officers entered the bedroom they found Mincey lying on the floor, wounded and semiconscious. Officer Headricks died a few hours later in the hospital. 2 The petitioner was indicted for murder, assault,1 and three counts of narcotics offenses. He was tried at a single trial and convicted on all the charges. At his trial and on appeal, he contended that evidence used against him had been unlawfully seized from his apartment without a warrant and that statements used to impeach his credibility were inadmissible because they had not been made voluntarily. The Arizona Supreme Court reversed the murder and assault convictions on state-law grounds,2 but affirmed the narcotics convictions. 115 Ariz. 472, 566 P.2d 273. It held that the warrantless search of a homicide scene is permissible under the Fourth and Fourteenth Amendments and that Mincey's statements were voluntary. We granted certiorari to consider these substantial constitutional questions. 434 U.S. 902, 98 S.Ct. 295, 54 L.Ed.2d 188. 3 * The first question presented is whether the search of Mincey's apartment was constitutionally permissible. After the shooting, the narcotics agents, thinking that other persons in the apartment might have been injured, looked about quickly for other victims. They found a young woman wounded in the bedroo closet and Mincey apparently unconscious in the bedroom, as well as Mincey's three acquaintances (one of whom had been wounded in the head) in the living room. Emergency assistance was requested, and some medical aid was administered to Officer Headricks. But the agents refrained from further investigation, pursuant to a Tucson Police Department directive that police officers should not investigate incidents in which they are involved. They neither searched further nor seized any evidence; they merely guarded the suspects and the premises. 4 Within 10 minutes, however, homicide detectives who had heard a radio report of the shooting arrived and took charge of the investigation. They supervised the removal of Officer Headricks and the suspects, trying to make sure that the scene was disturbed as little as possible, and then proceeded to gather evidence. Their search lasted four days,3 during which period the entire apartment was searched, photographed, and diagrammed. The officers opened drawers, closets, and cupboards, and inspected their contents; they emptied clothing pockets; they dug bullet fragments out of the walls and floors; they pulled up sections of the carpet and removed them for examination. Every item in the apartment was closely examined and inventoried, and 200 to 300 objects were seized. In short, Mincey's apartment was subjected to an exhaustive and intrusive search. No warrant was ever obtained. 5 The petitioner's pretrial motion to suppress the fruits of this search was denied after a hearing. Much of the evidence introduced against him at trial (including photographs and diagrams, bullets and shell casings, guns, narcotics, and narcotics paraphernalia) was the product of the four-day search of his apartment. On appeal, the Arizona Supreme Court reaffirmed previous decisions in which it had held that the warrantless search of the scene of a homicide is constitutionally permissible.4 It stated its ruling as follows: 6 "We hold a reasonable, warrantless search of the scene of a homicide—or of a serious personal injury with likelihood of death where there is reason to suspect foul play— does not violate the Fourth Amendment to the United States Constitution where the law enforcement officers were legally on the premises in the first instance. . . . For the search to be reasonable, the purpose must be limited to determining the circumstances of death and the scope must not exceed that purpose. The search must also begin within a reasonable period following the time when the officials first learn of the murder (or potential murder)." 115 Ariz., at 482, 566 P.2d, at 283. 7 Since the investigating homicide detectives knew that Officer Headricks was seriously injured, began the search promptly upon their arrival at the apartment, and searched only for evidence either establishing the circumstances of death or "relevant to motive and intent or knowledge (narcotics, e. g.)," id., at 483, 566 P.2d, at 284, the court found that the warrantless search of the petitioner's apartment had not violated the Fourth and Fourteenth Amendments. 8 We cannot agree. The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that "searches onducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (footnotes omitted); see also South Dakota v. Opperman, 428 U.S. 364, 381, 96 S.Ct. 3092, 3103, 49 L.Ed.2d 1000 (POWELL, J., concurring); Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S.Ct. 2022, 2045, 29 L.Ed.2d 564; Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409; Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889; Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 1232, 92 L.Ed. 1663. The Arizona Supreme Court did not hold that the search of the petitioner's apartment fell within any of the exceptions to the warrant requirement previously recognized by this Court, but rather that the search of a homicide scene should be recognized as an additional exception. 9 Several reasons are advanced by the State to meet its "burden . . . to show the existence of such an exceptional situation" as to justify creating a new exception to the warrant requirement. See Vale v. Louisiana, supra, 399 U.S., at 34, 90 S.Ct., at 1971; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59. None of these reasons, however, persuades us of the validity of the generic exception delineated by the Arizona Supreme Court. 10 The first contention is that the search of the petitioner's apartment did not invade any constitutionally protected right of privacy. See Katz v. United States, supra. This argument appears to have two prongs. On the one hand, the State urges that by shooting Officer Headricks, Mincey forfeited any reasonable expectation of privacy in his apartment. We have recently rejected a similar waiver argument in Michigan v. Tyler, 436 U.S. 499, 505-506, 98 S.Ct. 1942, 1948, 56 L.Ed.2d 486; it suffices here to say that this reasoning would impermissibly convict the suspect even before the evidence against him was gathered.5 On the other hand, the State contends that the police entry to arrest Mincey was so great an invasion of his privacy that the additional intrusion caused by the search was constitutionally irrelevant. But this claim is hardly tenable in light of the extensive nature of this search. It is one thing to say that one who is legally taken into police custody has a lessened right of privacy in his person. See United States v. Edwards, 415 U.S. 800, 808-809, 94 S.Ct. 1234, 1239, 39 L.Ed.2d 771; United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427. It is quite another to argue that he also has a lessened right of privacy in his entire house. Indeed this very argument was rejected when it was advanced to support the warrantless search of a dwelling where a search occurred as "incident" to the arrest of its occupant. Chimel v. California, 395 U.S. 752, 766 n. 12, 89 S.Ct. 2034, 2042, 23 L.Ed.2d 685. Thus, this search cannot be justified on the ground that no constitutionally protected right of privacy was invaded. 11 The State's second argument in support of its categorical exception to the warrant requirement is that a possible homicide presents an emergency situation demanding immediate action. We do not question the right of the police to respond to emergency situations. Numerous state6 and federal7 cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. Cf. Michigan v. Tyler, supra, 436 U.S., at 509-510, 98 S.Ct., at 1950-1951. "The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Wayne v. United States, 115 U.S.App.D.C. 234, 241, 318 F.2d 205, 212 (opinion of Burger, J.). And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. Michigan v. Tyler, supra, 436 U.S., at 509-510, 98 S.Ct., at 1950-1951; Coolidge v. New Hampshire, 403 U.S., at 465-466, 91 S.Ct., at 2037-2038. 12 But a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation," Terry v. Ohio, 392 U.S., at 25-26, 88 S.Ct., at 1882, and it simply cannot be contended that this search was justified by any emergency threatening life or limb. All the persons in Mincey's apartment had been located before the investigating homicide officers arrived there and began their search. And a four-day search that included opening dresser drawers and ripping up carpets can hardly be rationalized in terms of the legitimate concerns that justify an emergency search. 13 Third, the State points to the vital public interest in the prompt investigation of the extremely serious crime of murder. No one can doubt the importance of this goal. But the public interest in the investigation of other serious crimes is comparable. If the warrantless search of a homicide scene is reasonable, why not the warrantless search of the scene of a rape, a robbery, or a burglary? "No consideration relevant to the Fourth Amendment suggests any point of rational limitation" of such a doctrine. Chimel v. California, supra, 395 U.S., at 766, 89 S.Ct., at 2041. 14 Moreover, the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment. Cf. Coolidge v. New Hampshire, supra, at 481, 91 S.Ct., at 2045. The investigation of crime would always be simplified if warrants were unnecessary. But the Fourth Amendment reflects the view of those who wrote the Bill of Rights that the privacy of a person's home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law. See United States v. Chadwick, 433 U.S. 1, 6-11, 97 S.Ct. 2476, 2481-2483, 53 L.Ed.2d 538. For this reason, warrants are generally required to search a person's home or his person unless "the exigencies of the situation" make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment. McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153, Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 369, 92 L.Ed. 436. See, e. g., Chimel v. California, supra (search of arrested suspect and area within his control for weapons or evidence); Warden v. Hayden, 387 U.S. 294, 298-300, 87 S.Ct. 1642, 18 L.Ed.2d 782 ("hot pursuit" of fleeting suspect); Schmerber v. California, 384 U.S. 757, 770-771, 86 S.Ct. 1826, 1835-1836, 16 L.Ed.2d 908 (imminent destruction of evidence); see also supra, at 392-393. 15 Except for the fact that the offense under investigation was a homicide, there were no exigent circumstances in this case, as, indeed, the Arizona Supreme Court recognized. 115 Ariz., at 482, 566 P.2d, at 283. There was no indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant. Indeed, the police guard at the apartment minimized that possibility. And there is no suggestion that a search warrant could not easily and conveniently have been obtained. We decline to hold that the seriousness of the offense under investigation itself creates exigent circumstances of the kind that under the Fourth Amendment justify a warrantless search. 16 Finally, the State argues that the "murder scene exception" is constitutionally permissible because it is narrowly confined by the guidelines set forth in the decision of the Arizona Supreme Court, see supra, at 389-390.8 In light of the extensive search that took place in this case it may be questioned what protection the guidelines afford a person in whose home a homicide or assault occurs. Indeed, these so-called guidelines are hardly so rigidly confining as the State seems to assert. They confer unbridled discretion upon the individual officer to interpret such terms as "reasonable . . . search," "serious personal injury with likelihood of death where there is reason to suspect foul play," and "reasonable period." It is precisely this kind of judgmental assessment of the reasonableness and scope of a proposed search that the Fourth Amendment requires be made by a neutral and objective magistrate, not a police officer. See, e. g., United States v. United States District Court, 407 U.S. 297, 316, 92 S.Ct. 2125, 2136, 32 L.Ed.2d 752; Coolidge v. New Hampshire, supra, at 449-453, 91 S.Ct., at 2029-2031; Mancusi v. DeForte, 392 U.S. 364, 371, 88 S.Ct. 2120, 2125, 20 L.Ed.2d 1154; Wong Sun v. United States, 371 U.S. 471, 481-482, 83 S.Ct. 407, 413-414, 9 L.Ed.2d 441. 17 It may well be that the circumstances described by the Arizona Supreme Court would usually be constitutionally sufficient to warrant a search of substantial scope. But the Fourth Amendment requires that this judgment in each case be made in the first instance by a neutral magistrate. 18 "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, supra, at 13-14, 68 S.Ct., at 369. 19 In sum, we hold that the "murder scene exception" created by the Arizona Supreme Court is inconsistent with the Fourth and Fourteenth Amendments—that the warrantless search of Mincey's apartment was not constitutionally permissible simply because a homicide had recently occurred there.9 II 20 Since there will presumably be a new trial in this case,10 it is appropriate to consider also the petitioner's contention that statements he made from a hospital bed were involuntary, and therefore could not constitutionally be used against him at his trial. 21 Mincey was brought to the hospital after the shooting and taken immediately to the emergency room where he was examined and treated. He had sustained a wound in his hip, resulting in damage to the sciatic nerve and partial paralysis of his right leg. Tubes were inserted into his throat to help him breathe, and through his nose into his stomach to keep him from vomiting; a catheter was inserted into his bladder. He received various drugs, and a device was attached to his arm so that he could be fed intravenously. He was then taken to the intensive care unit. 22 At about eight o'clock that evening, Detective Hust of the Tucson Police Department came to the intensive care unit to interrogate him. Mincey was unable to talk because of the tube in his mouth, and so he responded to Detective Hust's questions by writing answers on pieces of paper provided by the hospital.11 Hust told Mincey he was under arrest for the murder of a police officer, gave him the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and began to ask questions about the events that had taken place in Mincey's apartment a few hours earlier. Although Mincey asked repeatedly that the interrogation stop until he could get a lawyer, Hust continued to question him until almost midnight. 23 After a pretrial hearing, see Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, the trial court found that Mincey had responded to this interrogation voluntarily.12 When Mincey took the witness stand at his trial his statements in response to Detective Hust's questions were used in an effort to impeach his testimony in several respects.13 On appeal, the Arizona Supreme Court indicated its belief that because Detective Hust had failed to honor Mincey's request for a lawyer, the statements would have been inadmissible as part of the prosecution's case in chief. Miranda v. Arizona, supra. But relying on Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, and Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570, it held that since the trial court's finding of voluntariness was not "clear[ly] and manifest[ly]" erroneous the statements were properly used for purposes of impeachment. 115 Ariz., at 480, 566 P.2d, at 281. 24 Statements made by a defendant in circumstances violating the strictures of Miranda v. Arizona, supra, are admissible for impeachment if their "trustworthiness . . . satisfies legal standards." Harris v. New York, supra, 401 U.S., at 224, 91 S.Ct., at 645; Oregon v. Hass, supra, 420 U.S., at 722, 95 S.Ct., at 1220. But any criminal trial use against a defendant of his involuntary statement is a denial of due process of law, "even though there is ample evidence aside from the confession to support the conviction." Jackson v. Denno, 378 U.S. supra, at 376, 84 S.Ct., at 1780; Haynes v. Washington, 373 U.S. 503, 518, 83 S.Ct. 1336, 1345, 10 L.Ed.2d 513; Lynumn v. Illinois, 372 U.S. 528, 537, 83 S.Ct. 917, 922, 9 L.Ed.2d 922; Stroble v. California, 343 U.S. 181, 190, 72 S.Ct. 599, 603, 96 L.Ed. 872; see Chapman v. California, 386 U.S. 18, 23 and n. 8, 87 S.Ct. 824, 828, 17 L.Ed.2d 705. If therefore, Mincey's statements to Detective Hust were not " 'the product of a rational intellect and a free will ,' " Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770, quoting Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242, his conviction cannot stand. In making this critical determination, we are not bound by the Arizona Supreme Court's holding that the statements were voluntary. Instead, this Court is under a duty to make an independent evaluation of the record. Davis v. North Carolina, 384 U.S. 737, 741-742, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895; Haynes v. Washington, supra, at 515-516, 83 S.Ct., at 1345. 25 It is hard to imagine a situation less conducive to the exercise of "a rational intellect and a free will" than Mincey's. He had been seriously wounded just a few hours earlier, and had arrived at the hospital "depressed almost to the point of coma," according to his attending physician. Although he had received some treatment, his condition at the time of Hust's interrogation was still sufficiently serious that he was in the intensive care unit.14 He complained to Hust that the pain in his leg was "unbearable." He was evidently confused and unable to think clearly about either the events of that afternoon or the circumstances of his interrogation, since some of his written answers were on their face not entirely coherent.15 Finally, while Mincey was being questioned he was lying on his back on a hospital bed, encumbered by tubes, needles, and breathing apparatus. He was, in short, "at the complete mercy" of Detective Hust, unable to escape or resist the thrust of Hust's interrogation. Cf. Beecher v. Alabama, 389 U.S. 35, 38, 88 S.Ct. 89, 191, 19 L.Ed.2d 35. 26 In this debilitated and helpless condition, Mincey clearly expressed his wish not to be interrogated. As soon as Hust's questions turned to the details of the afternoon's events, Mincey wrote: "This is all I can say without a lawyer." Hust nonetheless continued to question him, and a nurse who was present suggested it would be best if Mincey answered. Mincey gave unresponsive or uninformative answers to several more questions, and then said again that he did not want to talk without a lawyer. Hust ignored that request and another made immediately thereafter.16 Indeed, throughout the interrogation Mincey vainly asked Hust to desist. Moreover, he complained several times that he was confused or unable to think clearly, or that he could answer more accurately the next day.17 But despite Mincey's entreaties to be let alone, Hust ceased the interrogation only during intervals when Mincey lost consciousness or received medical treatment, and after each such interruption returned relentlessly to his task. The statements at issue were thus the result of virtually continuous questioning of a seriously and painfully wounded man on the edge of consciousness. 27 There were not present in this case some of the gross abuses that have led the Court in other cases to find confessions involuntary, such as beatings, see Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, or "truth serums," see Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770. But "the blood of the accused is not the only hallmark of an unconstitutional inquisition." Blackburn v. Alabama, 361 U.S., at 206, 80 S.Ct., at 279. Determination of whether a statement is involuntary "requires more than a mere color-matching of cases." Reck v. Pate, 367 U.S. 433, 442, 81 S.Ct. 1541, 1547, 6 L.Ed.2d 948. It requires careful evaluation of all the circumstances of the interrogation.18 28 It is apparent from the record in this case that Mincey's statements were not "the product of his free and rational choice." Greenwald v. Wisconsin, 390 U.S. 519, 521, 88 S.Ct. 1152, 1154, 20 L.Ed.2d 77. To the contrary, the undisputed evidence makes clear that Mincey wanted not to answer Detective Hust. But Mincey was weakened by pain and shock, isolated from family, friends, and legal counsel, and barely conscious, and his will was simply overborne. Due process of law requires that statements obtained as these were cannot be used in any way against a defendant at his trial. III 29 For the foregoing reasons, the judgment of the Arizona Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. 30 It is so ordered. 31 Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, concurring. 32 I join the opinion of the Court, which holds that petitioner's rights under the Fourth and Fourteenth Amendments have been violated. I write today to emphasize a point that is illustrated by the instant case, but that applies more generally to all cases in which we are asked to review Fourth Amendment issues arising out of state criminal convictions. 33 It is far from clear that we would have granted certiorari solely to resolve the involuntary-statement issue in this case, for that could have been resolved on federal habeas corpus. With regard to the Fourth Amendment issue, however, we had little choice but to grant review, because our decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L. d.2d 1067 (1976), precludes federal habeas consideration of such issues. In Stone the Court held that, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id., at 494, 96 S.Ct., at 3052 (footnotes omitted). Because of this holding, petitioner would not have been able to present to a federal habeas court the Fourth Amendment claim that the Court today unanimously upholds. 34 The additional responsibilities placed on this Court in the wake of Stone become apparent upon examination of decisions of the Arizona Supreme Court on the Fourth Amendment issue presented here. The Arizona court created its "murder-scene exception" in a 1971 case. State v. Sample, 107 Ariz. 407, 409-410, 489 P.2d 44, 46-47. A year later, when the defendant in that case sought federal habeas corpus relief, the United States Court of Appeals for the Ninth Circuit ruled, as we do today, that the exception could not be upheld under the Fourth Amendment. Sample v. Eyman, 469 F.2d 819, 821-822 (1972). When the Arizona Supreme Court next gave plenary consideration to the issue, prior to our decision in Stone, it apparently felt bound by the Ninth Circuit's Sample decision, although it found the case before it to be distinguishable. State v. Duke, 110 Ariz. 320, 324, 518 P.2d 570, 574 (1974).1 35 When the Arizona Supreme Court rendered its decision in the instant case, however, it took a different approach. The decision, issued nearly a year after Stone, merely noted that the Ninth Circuit had "disagreed" with the Arizona court's view of the validity of the murder scene exception. 115 Ariz. 472, 482 n. 4, 566 P.2d 273, 283 n. 4 (1977). It thus created an effective "conflict" for us to resolve. Cf. this Court's Rule 19(1)(b). If certiorari had not been granted, we would have left standing a decision of the State's highest court on a question of federal constitutional law that had been resolved in a directly opposing way by the highest federal court having special responsibility for the State. Regardless of which court's view of the Constitution was the correct one, such nonuniformity on Fourth Amendment questions is obviously undesirable; it is as unfair to state prosecutors and judges—who must make difficult determinations regarding what evidence is subject to exclusion—as it is to state criminal defendants. 36 Prior to Stone v. Powell, there would have been no need to grant certiorari in a case such as this, since the federal habeas remedy would have been available to the defendant. Indeed, prior to Stone petitioner here probably would not even have had to utilize federal habeas, since the Arizona courts were at that earlier time more inclined to follow the federal constitutional pronouncements of the Ninth Circuit, as discussed above. But Stone eliminated the habeas remedy with regard to Fourth Amendment violations, thus allowing state-court rulings to diverge from lower federal-co rt rulings on these issues and placing a correspondingly greater burden on this Court to ensure uniform federal law in the Fourth Amendment area. 37 At the time of Stone my Brother BRENNAN wrote that "institutional constraints totally preclude any possibility that this Court can adequately oversee whether state courts have properly applied federal law." 428 U.S., at 526, 96 S.Ct., at 3067 (dissenting opinion); see id., at 534, 96 S.Ct., at 3071. Because of these constraints, we will often be faced with a Hobson's choice in cases of less than national significance that could formerly have been left to the lower federal courts: either to deny certiorari and thereby let stand divergent state and federal decisions with regard to Fourth Amendment rights; or to grant certiorari and thereby add to our calendar, which many believe is already overcrowded, cases that might better have been resolved elsewhere. In view of this problem and others,2 I hope that the Court will at some point reconsider the wisdom of Stone v. Powell.3 38 Mr. Justice REHNQUIST, concurring in part and dissenting in part. 39 Petitioner was indicted for murder, assault, and three counts of narcotics offenses. He was convicted on all charges. On appeal, the Supreme Court of Arizona reversed all but the narcotics convictions. 115 Ariz. 472, 566 P.2d 273 (1977). In his petition for certiorari, petitioner challenged the introduction of evidence material to his narcotics convictions that was seized during a lengthy warrantless search of his apartment. Petitioner also challenged on voluntariness grounds the introduction of various statements made to the police relating to the murder charge. We granted certiorari, 434 U.S. 902, 98 S.Ct. 295, 54 L.Ed.2d 188, and the Court today reverses the Supreme Court of Arizona on both issues. While I agree with the Court that the warrantless search was not justifiable on the grounds advanced by the Arizona Supreme Court, I dissent from the Court's holding that Mincey's statements were involuntary and thus inadmissible. 40 * I join Part I of the Court's opinion. As the Supreme Court of Arizona recognized, the four-day warrantless search of petitioner's apartment did not, on the facts developed at trial, "fit within [any] usual 'exigent circumstances' exception." 115 Ariz., at 482, 566 P.2d, at 283. Instead, the State of Arizona asks us to adopt a separate "murder scene" exception to the warrant requirement and the Court, for the reasons stated in its opinion, correctly rejects this invitation. 41 I write separately on this issue only to emphasize that the question of what, if any, evidence was seized under established Fourth Amendment standards is left open for the Arizona courts to resolve on remand. Ante, at 395 n. 9. Much of the evidence introduced by the State at trial was apparently removed from the apartment the same day as the shooting. App. 40. And the State's brief suggests that some evidence—for example, blood on the floor required immediate examination. Brief for Respondent 70-71. The question of what evidence would have been "lost, destroyed, or removed" if a warrant had been obtained, ante, at 394, otherwise required an immediate search, or was in plain view should be considered on remand by the Arizona courts. 42 In onsidering whether exigencies required the search for or seizure of particular evidence, the previous events within the apartment cannot be ignored. I agree with the Court that the police's entry to arrest Mincey, followed by the shooting and the search for victims, did not justify the later four-day search of the apartment. Ante, at 391-392. But the constitutionality of a particular search is a question of reasonableness and depends on "a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975). See Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968). In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), we held that once a motor vehicle had been lawfully detained for a traffic violation, police officers could constitutionally order the driver out of the vehicle. In so holding, we emphasized that the challenged intrusion was "occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis." Id., at 111, 98 S.Ct., at 333. Similarly, in the instant case, the prior intrusions occasioned by the shooting and the police's response thereto may legitimize a search under some exigencies that in tamer circumstances might not permit a search. II 43 The Court in Part II of its opinion advises the Arizona courts on the admissibility of certain statements made by Mincey that are relevant only to the murder charge. Because Mincey's murder conviction was reversed by the Arizona Supreme Court, and it is not certain that there will be a retrial, I would not reach this issue. Since the Court addresses the issue, however, I must register my disagreement with its conclusion. 44 Before trial, Mincey moved to suppress as involuntary certain statements that he had made while confined in an intensive care unit some hours after the shooting. As the Court acknowledges, the trial court found " 'with unmistakable clarity' " that the statements were voluntary, ante, at 397 n. 12, and the Supreme Court of Arizona, unanimously affirmed. 115 Ariz., at 479-480, 566 P.2d, at 280-281. This Court now disagrees and holds that "Mincey's statements were not 'the product of his free and rational choice' " and therefore "cannot be used in any way against [him] at his trial." Ante, at 401, 402. Because I believe that the Court both has failed to accord the state-court finding the deference that the Court has always found such findings due and also misapplied our past precedents, I dissent. 45 As the Court notes, ante, at 398, past cases of this Court hold that a state-court finding as to voluntariness which is "not fairly supported by the record cannot be conclusive of federal rights." Townsend v. Sain, 372 U.S. 293, 316, 83 S.Ct. 745, 758, 9 L.Ed.2d 770 (1963) (emphasis added). Instead, these cases require the Court to "make an independent determination on the undisputed facts." Stroble v. California, 343 U.S. 181, 190, 72 S.Ct. 599, 603, 96 L.Ed. 872 (1952) (emphasis added); Malinski v. New York, 324 U.S. 401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029 (1945). It is well established that, "for purposes of review in this Court, the determination of the trial judge or of the jury will ordinarily be taken to resolve evidentiary conflicts and may be entitled to some weight even with respect to the ultimate conclusion on the crucial issue of voluntariness." Haynes v. Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 1344, 10 L.Ed.2d 513 (1963). See Lisenba v. California, 314 U.S. 219, 238, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941); Blackburn v. Alabama, 361 U.S. 199, 205, and n. 5, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960). Such deference, particularly on the resolution of e identiary conflicts, "is particularly apposite because the trial judge and jury are closest to the trial scene and thus afforded the best opportunity to evaluate contradictory testimony." Haynes, supra, at 516, 83 S.Ct., at 1344. 46 The Court in this case, however, ignores entirely some evidence of voluntariness and distinguishes away yet other testimony. There can be no discounting that Mincey was seriously wounded and laden down with medical equipment. Mincey was certainly not able to move about and, because of the breathing tube in his mouth, had to answer Detective Hust's questions on paper. But the trial court was certainly not required to find, as the Court would imply, that Mincey was "a seriously and painfully wounded man on the edge of consciousness." Ante, at 401. Nor is it accurate to conclude that Detective Hust "ceased the interrogation only during intervals when Mincey lost consciousness or received medical treatment, and after each such interruption returned relentlessly to his task." Ibid. 47 As the Arizona Supreme Court observed in affirming the trial court's finding of voluntariness, Mincey's nurse 48 "testified that she had not given [Mincey] any medication and that [he] was alert and able to understand the officer's questions. . . . She said that [Mincey] was in moderate pain but was very cooperative with everyone. The interrogating officer also testified that [Mincey] did not appear to be under the influence of drugs and that [his] answers were generally responsive to the questions." 115 Ariz., at 480, 566 P.2d at 281. 49 See App. 50-51 (testimony of Detective Hust), 63 and 66 (testimony of Nurse Graham).1 The uncontradicted testimony of Detective Hust also reveals a questioning that was far from "relentless." While the interviews took place over a three-hour time span, the interviews were not "very long; probably not more than an hour total for everything." Id., at 59. Hust would leave the room whenever Mincey received medical treatment "or if it looked like he was getting a little bit exhausted." Ibid. According to Detective Hust, Mincey never "los[t] consciousness at any time." Id., at 58. 50 As the Court openly concedes, there were in this case none of the "gross abuses that have led the Court in other cases to find confessions involuntary, such as beatings . . . or 'truth serums.' " Ante, at 401. Neither is this a case, however, where the defendant's will was "simply overborne" by "mental coercion." Cf. Blackburn v. Alabama, supra, 301 U.S., at 206, 80 S.Ct., at 279; Davis v. North Carolina, 384 U.S. 737, 741, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966); Greenwald v. Wisconsin, 390 U.S. 519, 521, 88 S.Ct. 1152, 1153, 20 L.Ed.2d 77 (1968). As the Supreme Court of Arizona observed, it was the testimony of both Detective Hust and Nurse Graham "that neither mental or physical force nor abuse was used on [Mincey]. . . . Nor were any promises made." 115 Ariz., at 480, 566 P.2d, at 281. See App. 58-59 (testimony of Detective Hust) and 63 (testimony of Nurse Graham). According to Mincey's own testimony, he wanted to help Hust "the best I could" and tried to answer each question "to the best of my r collection at the time that this was going on." Id., at 86. Mincey did not claim that he felt compelled by Detective Hust to answer the questions propounded.2 Cf. Greenwald, supra, 390 U.S., at 521, 88 S.Ct., at 1153. 51 By all of these standards enunciated in our previous cases, I think the Court today goes too far in substituting its own judgment for the judgment of a trial court and the highest court of a State, both of which decided these disputed issues differently than does this Court, and both of which were a good deal closer to the factual occurrences than is this Court. Admittedly we may not abdicate our duty to decide questions of constitutional law under the guise of wholly remitting to state courts the function of factfinding which is a necessary ingredient of the process of constitutional decision. But the authorities previously cited likewise counsel us against going to the other extreme, and attempting to extract from a cold record bits and pieces of evidence which we then treat as the "facts" of the case. I believe that the trial court was entitled to conclude that, notwithstanding Mincey's medical condition, his statements in the intensive care unit were admissible. The fact that the same court might have been equally entitled to reach the opposite conclusion does not justify this Court's adopting the opposite conclusion. 52 I therefore dissent from Part II of the Court's opinion. 1 The assault charge was based on the wounding of a person in the living room who was hit by a bullet that came through the wall. 2 The state appellate court held that the jury had been improperly instructed on criminal intent. It appears from the record in this case that the retrial of the petitioner on the murder and assault charges was stayed by the trial court after certiorari was granted by this Court. 3 The police also returned to the apartment in November 1974, at the request of the petitioner's landlord, to remove property of the petitioner that remained in the apartment after his lease had expired on October 31. 4 State v. Sample, 107 Ariz. 407, 489 P.2d 44; State ex rel. Berger v. Superior Court, 110 Ariz. 281, 517 P.2d 1277; State v. Duke, 110 Ariz. 320, 518 P.2d 570. The Court of Appeals for the Ninth Circuit reversed the denial of a petition for a writ of habeas corpus filed by the defendant whose conviction was upheld in State v. Sample, supra, on the ground, inter alia, that the warrantless search of the homicide scene violated the Fourth and Fourteenth Amendments. Sample v. Eyman, 469 F.2d 819. 5 Moreover, this rationale would be inapplicable if a homicide occurred at the home of the victim or of a stranger, yet the Arizona cases indicate that a warrantless search in such a case would also be permissible under the "murder scene exception." Cf. State v. Sample, supra, 107 Ariz., at 409, 489 P.2d, at 46. 6 E. g., People v. Hill, 12 Cal.3d 731, 753-757, 117 Cal.Rptr. 393, 410-413, 528 P.2d 1, 18-21; Patrick v. State, 227 A.2d 486, 488-490 (Del.); People v. Brooks, 7 Ill.App.3d 767, 775-777, 289 N.E.2d 207, 212-214; Maxey v. State, 251 Ind. 645, 649-650, 244 N.E.2d 650, 653-654; Davis v. State, 236 Md. 389, 395-397, 204 A.2d 76, 80-82; State v. Hardin, 90 Nev. 10, 518 P.2d 151; State v. Gosser, 50 N.J. 438, 446-448, 236 A.2d 377, 381-382; People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607; State v. Pires, 55 Wis.2d 597, 603-605, 201 N.W.2d 153, 156-158. Other cases are collected in Note, The Emergency Doctrine, Civil Search and Seizure, and the Fourth Amendment, 43 Ford.L.Rev. 571, 584 n. 102 (1975). See also ALI Model Code of Pre-Arraignment Procedure § §§ 260.5 (Prop.Off. Draft 1975). By citing these cases and those in the note following, of course, we do not mean to approve the specific holding of each case. 7 E. g., Root v. Gauper, 438 F.2d 361, 364-365 (CA8); United States v. Barone, 330 F.2d 543 (CA2); Wayne v. United States, 115 U.S.App.D.C. 234, 238-243, 318 F.2d 205, 209-214 (opinion of Burger, J.); United States v. James, 408 F.Supp. 527, 533 (SD Miss.); United States ex rel. Parson v. Anderson, 354 F.Supp. 1060, 1086-1087 (Del.), aff'd, 481 F.2d 94 (CA3); see Warden v. Hayden, 387 U.S. 294, 298-299, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782; McDonald v. United States, 335 U.S. 451, 454-456, 69 S.Ct. 191, 192-193, 93 L.Ed. 153; Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 369, 92 L.Ed. 436. 8 The State also relies on the fact that observance of these guidelines can be enforced by a motion to suppress evidence. But the Fourth Amendment "is designed to prevent, not simply to redress, unlawful police action." Chimel v. California, 395 U.S. 752, 766 n. 12, 89 S.Ct. 2034, 2042, 23 L.Ed.2d 685. 9 To what extent, if any, the evidence found in Mincey's apartment was permissibly seized under established Fourth Amendment standards will be for the Arizona courts to resolve on remand. 10 See also n. 2, supra. 11 Because of the way in which the interrogation was conducted, the only contemporaneous record consisted of Mincey's written answers. Hust testified that the next day he went over this document and made a few notes to help him reconstruct the conversation. In a written report dated about a week later, Hust transcribed Mincey's answers and added the questions he believed he had asked. It was this written report that was used to cross-examine Mincey at his subsequent trial. 12 The trial court made no findings of fact, nor did it make a specific finding of voluntariness, and the petitioner contends that admission of the statements therefore violated Jackson v. Denno. We agree with the Arizona Supreme Court, however, that the finding of voluntariness "a pear[s] from the record with unmistakable clarity." Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593. The petitioner had originally moved to suppress his written answers to Hust's questions on two grounds: that they had been elicited in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and that they had been involuntary. During the hearing, the prosecution stipulated that the answers would be used only to impeach the petitioner if he took the witness stand. Any violation of Miranda thus became irrelevant. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570; Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1. The testimony and the briefs and arguments of counsel were thereafter directed solely to whether the answers had been voluntarily given, and the court specifically ruled that they would be admissible for impeachment purposes only. The court thus necessarily held that Mincey's responses to Hust's interrogation were voluntary. 13 In light of our holding that Mincey's hospital statements were not voluntarily given, it is unnecessary to reach his alternative contention that their use against him was impermissible because they were not sufficiently inconsistent with his trial testimony. 14 A nurse testified at the suppression hearing that the device used to aid Mincey's respiration was reserved for "more critical" patients. Moreover, Mincey apparently remained hospitalized for almost a month after the shooting. According to docket entries in the trial court his arraignment was postponed several times because he was still in the hospital; he was not arraigned until November 26, 1974. 15 For example, two of the answers written by Mincey were: "Do you me Did he give me some money (no)" and "Every body know Every body." And Mincey apparently believed he was being questioned by several different policemen, not Hust alone; although it was Hust who told Mincey he had killed a policeman, later in the interrogation Mincey indicated he thought it was someone else. 16 In his reconstruction of the interrogation, see n. 11, supra, Hust stated that, after he asked Mincey some questions to try to identify one of the other victims, the following ensued: "HUST: . . . What do you remember that happened? "MINCEY: I remember somebody standing over me saying 'move nigger, move.' I was on the floor beside the bed. "HUST: Do you remember shooting anyone or firing a gun? "MINCEY: This is all I can say without a lawyer. "HUST: If you want a lawyer now, I cannot talk to you any longer, however, you don't have to answer any questions if you don't want to. Do you still want to talk to me? "MINCEY: (Shook his head in an affirmative manner.) "HUST: What else can you remember? "MINCEY: I'm going to have to put my head together. There are so many things that I don't remember I. Like how did they get into the apartment? "HUST: How did who get into the apartment? "MINCEY: Police. "HUST: Did you sell some narcotics to the guy that was shot? "MINCEY: Do you mean, did he give me some money? "HUST: Yes. "MINCEY: No. "HUST: Did you give him a sample? "MINCEY: What do you call a sample? "HUST: A small amount of drug or narcotic to test? "MINCEY: I can't say without a lawyer. "HUST: Did anyone say police or narcs when they came into apartment? "MINCEY: Let me get myself together first. You see, I'm not for sure everything happened so fast. I can't answer at this time because I don't think so, but I can't say for sure. Some questions aren't clear to me at the present time. "HUST: Did you shoot anyone? "MINCEY: I can't say, I have to see a lawyer." (Emphasis supplied.) While some of Mincey's answers seem relatively responsive to the questions, it must be remembered that Hust added the questions at a later date, with the answers in front of him. See n. 11, supra. The reliability of Hust's report is uncertain. For exa ple, Hust claimed that immediately after Mincey first expressed a desire to remain silent, Hust said Mincey need not answer any questions but Mincey responded by indicating that he wanted to continue. There is no contemporaneous record supporting Hust's statement that Mincey acted so inconsistently immediately after asserting his wish not to respond further, nor did the nurse who was present during the interrogation corroborate Hust. The Arizona Supreme Court apparently disbelieved Hust in this respect, since it stated that "after each indication from [Mincey] that he wanted to consult an attorney or that he wanted to stop answering questions, the police officer continued to question [him]." 115 Ariz., at 479, 566 P.2d, at 280 (emphasis supplied). 17 In addition to the statements quoted in n. 16, supra, Mincey wrote at various times during the interrogation: "There are a lot of things that aren't clear," "Thats why I have to have time to redo everything that happened in my mind," and "I'm not sure as of now." He also wrote: "If its possible to get a lawyer now. We can finish the talk. He could direct me in the right direction where as without a lawyer I might saw something thinking that it means something else." And at another point he wrote "Lets rap tomarrow. face to face. I can't give facts. If something happins that I don't know about." Before the interrogation ended, Mincey made two further requests for a lawyer. 18 E. g., Boulden v. Holman, 394 U.S. 478, 480, 89 S.Ct. 1138, 1139, 22 L.Ed.2d 433; Clewis v. Texas, 386 U.S. 707, 708, 87 S.Ct. 1338, 1339, 18 L.Ed.2d 423; Haynes v. Washington, 373 U.S. 503, 513-514, 83 S.Ct. 1336, 1842-1843, 10 L.Ed.2d 513. 1 In its Mincey opinion, 115 Ariz. 472, 482, 566 P.2d 273, 283 (1977), the Arizona Supreme Court indicated that one case other than Sample and Duke involved the murder-scene exception. State ex rel. Berger v. Superior Court, 110 Ariz. 281, 517 P.2d 1277 (1974). The two-sentence opinion in the latter case, however, provides no explanation of the underlying facts and does not cite to either the Arizona court's or the Ninth Circuit's decision in Sample. There is thus no way to determine whether the situation in Berger was in any way comparable to those in Sample, Duke, and Mincey, nor any way to determine whether the Berger court simply disregarded the Ninth Circuit's Sample decision or instead, as in Duke (decided just two weeks after Berger ), viewed Sample as distinguishable. 2 The Stone holding has not eased the burden on the lower federal courts as much as the Stone majority might have hoped, since those courts have had to struggle over what this Court meant by "an opportunity for full and fair litigation of a Fourth Amendment claim," 428 U.S., at 494, 96 S.Ct., at 3052. See, e. g., Gates v. Henderson, 568 F.2d 830 (CA2 1977); United States ex rel. Petillo v. New Jersey, 562 F.2d 903 (CA3 1977); O'Berry v. Wainwright, 546 F.2d 1204 (CA5 1977). 3 A bill currently pending in the Congress would have the effect of overruling Stone v. Powell. S. 1314, 95th Cong., 1st Sess. (1977); see 123 Cong.Rec. (11347-11353 (1977)). 1 The Supreme Court of Arizona also emphasized "the fact that [Mincey] was able to write his answers in a legible and fairly sensible fashion." 115 Ariz., at 480 n. 3, 566 P.2d, at 281 n. 3. The Court concedes that "Mincey's answers seem relatively responsive to the questions," ante, at 400 n. 16, but chooses to ignore this evidence on the ground that the "reliability of Hust's report is uncertain." Ibid. Despite the contrary impression given by the Court, ibid., the Arizona Supreme Court's opinion casts no doubt on the testimony or report of Detective Hust. The Court is thus left solely with its own conclusion as to the reliability of various witnesses based on a re-examination of the record on appeal. 2 While Mincey asked at several points to see a lawyer, he also expressed his willingness to continue talking to Detective Hust even without a lawyer. See ante, at 399-400, n. 16. As the Court notes, since Mincey's statements were not used as part of the prosecution's case in chief but only in impeachment, any violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was irrelevant. See Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975).

01

437 U.S. 365 98 S.Ct. 2396 57 L.Ed.2d 274 OWEN EQUIPMENT AND ERECTION COMPANY, Petitioner,v.Geraldine KROGER, Administratrix of the Estate of James D. Kroger, Deceased. No. 77-677. Argued April 18, 1978. Decided June 21, 1978. Syllabus Respondent, a citizen of Iowa, sued for damages based on the wrongful death of her husband, who was electrocuted when the boom of a steel crane next to which he was walking came too close to a high-tension electric power line. The action was brought in federal court on the basis of diversity of c tizenship against a Nebraska corporation (OPPD), whose negligent operation of the power line was alleged to have caused decedent's death. OPPD then filed a third-party complaint against petitioner company which owned and operated the crane, alleging that petitioner's negligence proximately caused the death. Respondent was thereafter granted leave to amend her complaint by naming petitioner, which she alleged to be a Nebraska corporation with its principal place of business in Nebraska, as an additional defendant. OPPD successfully moved for summary judgment, leaving petitioner as the sole defendant. Though in its answer petitioner admitted that it was a corporation organized and existing under the laws of Nebraska, during trial it was disclosed that petitioner's principal place of business was in Iowa. Since both parties were thus Iowa citizens, petitioner moved to dismiss on the basis of lack of federal jurisdiction. After the jury had returned a verdict for respondent, the District Court denied petitioner's motion to dismiss. The Court of Appeals affirmed, holding that under Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218, the District Court had jurisdictional power, in its discretion, to adjudicate the claim, which arose from the "core of 'operative facts' giving rise to both [respondent's] claim against OPPD and OPPD's claim against [petitioner]," and that the District Court had properly exercised its discretion because petitioner had concealed its Iowa citizenship from respondent. Held: The District Court had no power to entertain respondent's lawsuit against petitioner as a third-party defendant since diversity jurisdiction was lacking. Gibbs, supra, distinguished. Pp. 370-377. (a) A finding that federal and nonfederal claims arise from a "common nucleus of operative fact," the Gibbs test, does not suffice to establish that a federal court has power to hear nonfederal as well as federal claims, since, though the constitutional power to adjudicate the nonfederal claim may exist, it does not follow that statutory authorization has been granted. Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276; Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511. Pp. 370-373. (b) Here the relevant statute, 28 U.S.C. § 1332(a)(1), which confers upon federal courts jurisdiction over civil actions where the amount in controversy exceeds $10,000 and is between citizens of different States, requires complete diversity of citizenship, and it is thus congressionally mandated that diversity jurisdiction is not available when any plaintiff is a citizen of the same State as any defendant, a situation that developed in this case when respondent amended her complaint. Pp. 373-374. (c) Under the Court of Appeals' ancillary-jurisdiction theory a plaintiff could defeat the statutory requirement of complete diversity simply by suing only those defendants of diverse citizenship and waiting for them to implead nondiverse defendants. Pp. 374-375. (d) In determining whether jurisdiction over a nonfederal claim exists, the context in which that claim is asserted is crucial. Here the nonfederal claim was simply not ancillary to the federal one, as respondent's claim against petitioner was entirely separate from her original claim against OPPD, and petitioner's liability to her did not depend at all upon whether or not OPPD was also liable. Moreover, the nonfederal claim here was asserted by the plaintiff, who voluntarily chose to sue upon a state-law claim in federal court, whereas ancillary jurisdiction typically involves claims by a defendant party haled into court against his will, or by another person whose rights might be irretrievably lost unless he could assert them in an ongoing action in federal court. Pp. 375-376. 558 F.2d 417, reversed. Emil F. Sodoro, Omaha, Neb., for petitioner. Warren C. Schrempp, Omaha, Neb., for respondent. Mr. Justice STEWART deliver d the opinion of the Court. 1 In an action in which federal jurisdiction is based on diversity of citizenship, may the plaintiff assert a claim against a third-party defendant when there is no independent basis for federal jurisdiction over that claim? The Court of Appeals for the Eighth Circuit held in this case that such a claim is within the ancillary jurisdiction of the federal courts. We granted certiorari, 434 U.S. 1008, 98 S.Ct. 715, 54 L.Ed.2d 749, because this decision conflicts with several recent decisions of other Courts of Appeals.1 2 * On January 18, 1972, James Kroger was electrocuted when the boom of a steel crane next to which he was walking came too close to a high-tension electric power line. The respondent (his widow, who is the administratrix of his estate) filed a wrongful-death action in the United States District Court for the District of Nebraska against the Omaha Public Power District (OPPD). Her complaint alleged that OPPD's negligent construction, maintenance, and operation of the power line had caused Kroger's death. Federal jurisdiction was based on diversity of citizenship, since the respondent was a citizen of Iowa and OPPD was a Nebraska corporation. 3 OPPD then filed a third-party complaint pursuant to Fed.Rule Civ.Proc. 14(a)2 against the petitioner, Owen Equipment and Erection Co. (Owen), alleging that the crane was owned and operated by Owen, and that Owen's negligence had been the proximate cause of Kroger's death.3 OPPD later moved for summary judgment on the respondent's complaint against it. While this motion was pending, the respondent was granted leave to file an amended complaint naming Owen as an additional defendant. Thereafter, the District Court granted OPPD's motion for summary judgment in an unreported opinion.4 The case thus went to trial between the respondent and the petitioner alone. 4 The respondent's amended complaint alleged that Owen was "a Nebraska corporation with its principal place of business in Nebraska." Owen's answer admitted that it was "a corporation organized and existing under the laws of the State of Nebraska," and denied every other allegation of the complaint. On the third day of trial, however, it was disclosed that the petitioner's principal place of business was in Iowa, not Nebraska,5 and that the petitioner and the respondent were thus both citizens of Iowa.6 The petitioner then moved to dismiss the complaint for lack of jurisdiction. The District Court reserved decision on the motion, and the jury thereafter returned a verdict in favor of the respondent. In an unreported opinion issued after the trial, the District Court denied the petitioner's motion to dismiss the complaint. 5 The judgment was affirmed on appeal. 558 F.2d 417. The Court of Appeals held that under this Court's decision in Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218, the District Court had jurisdictional power, in its discretion, to adjudicate the respondent's claim against the petitioner because that claim arose from the "core of 'operative facts' giving rise to both [respondent's] claim against OPPD and OPPD's claim against Owen." 558 F.2d at 424. It further held that the District Court had properly exercised its discretion in proceeding to decide the case even after summary judgment had been granted to OPPD, because the petitioner had concealed its Iowa citizenship from the respondent. Rehearing en banc was denied by an equally divided court. 558 F.2d 417. II 6 It is undisputed that there was no independent basis of federal jurisdiction over the respondent's state-law tort action against the petitioner, since both are citizens of Iowa. And although Fed.Rule Civ.Proc. 14(a) permits a plaintiff to assert a claim against a third-party defendant, see n. 2, supra, it does not purport to say whether or not such a claim requires an independent basis of federal jurisdiction. Indeed, it could not determine that question, since it is axiomatic that the Federal Rules of Civil Procedure do not create or withdraw federal jurisdiction.7 7 In affirming the District Court's judgment, the Court of Appeals relied upon the doctrine of ancillary jurisdiction, whose contours it believed were defined by this Court's holding in Mine Workers v. Gibbs, supra. The Gibbs case differed from this one in that it involved pendent jurisdiction, which concerns the resolution of a plaintiff's federal- and state-law claims against a single defendant in one action. By contrast, in this case there was no claim based upon substantive federal law, but rather state-law tort claims against two different defendants. Nonethel ss, the Court of Appeals was correct in perceiving that Gibbs and this case are two species of the same generic problem: Under what circumstances may a federal court hear and decide a state-law claim arising between citizens of the same State?8 But we believe that the Court of Appeals failed to understand the scope of the doctrine of theGibbs case. 8 The plaintiff in Gibbs alleged that the defendant union had violated the common law of Tennessee as well as the federal prohibition of secondary boycotts. This Court held that, although the parties were not of diverse citizenship, the District Court properly entertained the state-law claim as pendent to the federal claim. The crucial holding was stated as follows: 9 "Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim 'arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . ,' U.S.Const., Art. III, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.' . . . The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole." 383 U.S., at 725, 86 S.Ct., at 1138. (emphasis in original).9 10 It is apparent that Gibbs delineated the constitutional limits of federal judicial power. But even if it be assumed that the District Court in the present case had constitutional power to decide the respondent's lawsuit against the petitioner,10 it does not follow that the decision of the Court of Appeals was correct. Constitutional power is merely the first hurdle that must be overcome in determining that a federal court has jurisdiction over a particular controversy. For the jurisdiction of the federal courts is limited not only by the provisions of Art. III of the Constitution, but also by Acts of Congress. Palmore v. United States, 411 U.S. 389, 401, 93 S.Ct. 1670, 1678, 36 L.Ed.2d 342; Lockerty v. Phillips, 319 U.S. 182, 187, 63 S.Ct. 1019, 1022, 87 L.Ed. 1339; Kline v. Burke Constr. Co., 260 U.S. 226, 234, 43 S.Ct. 79, 82, 67 L.Ed. 226; Cary v. Curtis, 3 How. 236, 245, 11 L.Ed. 576. 11 That statutory law as well as the Constitution may limit a federal court's jurisdiction over nonfederal claims11 is well illustrated by two recent decisions of this Court, Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 and Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 51 . In Aldinger the Court held that a Federal District Court lacked jurisdiction over a state-law claim against a county, even if that claim was alleged to be pendent to one against county officials under 42 U.S.C. § 1983. In Zahn the Court held that in a diversity class action under Fed.Rule Civ.Proc. 23(b)(3), the claim of each member of the plaintiff class must independently satisfy the minimum jurisdictional amount set by 28 U.S.C. § 1332(a), and rejected the argument that jurisdiction existed over those claims that involved $10,000 or less as ancillary to those that involved more. In each case, despite the fact that federal and nonfederal claims arose from a "common nucleus of operative fact," the Court held that the statute conferring jurisdiction over the federal claim did not allow the exercise of jurisdiction over the nonfederal claim.12 The Aldinger and Zahn cases thus make clear that a finding that federal and nonfederal claims arise from a "common nucleus of operative fact," the test of Gibbs, does not end the inquiry into whether a federal court has power to hear the nonfederal claims along with the federal ones. Beyond this constitutional minimum, there must be an examination of the posture in which the nonfederal claim is asserted and of the specific statute that confers jurisdiction over the federal claim, in order to determine whether "Congress in [that statute] has . . . expressly or by implication negated" the exercise of jurisdiction over the particular nonfederal claim. Aldinger v. Howard, supra, 427 U.S., at 18, 96 S.Ct., at 2422. III 12 The relevant statute in this case, 28 U.S.C. § 1332(a)(1), confers upon federal courts jurisdiction over "civil actions where the matter in controversy exceeds the sum or value of $10,000 . . . and is between . . . citizens of different States." This statute and its predecessors have consistently been held to require complete diversity of citizenship.13 That is, diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff. Over the years Congress has repeatedly re-enacted or amended the statute conferring diversity jurisdiction, leaving intact this rule of complete diversity.14 Whatever may have been the original purposes of diversity-of-citizenship jurisdiction,15 this subsequent history clearly demonstrates a congressional mandate that diversity jurisdiction is not to be available when any plaintiff is a citizen of the same State as any defendant. Cf. Snyder v. Harris, 394 U.S. 332, 338-339,16 89 S.Ct. 1053, 1057-1058, 22 L.Ed.2d 319. 13 Thus it is clear that the respondent could not originally have brought suit in federal court naming Owen and OPPD as codefendants, since citizens of Iowa would have been on both sides of the litigation. Yet the identical lawsuit resulted when she amended her complaint. Complete diversity was destroyed just as surely as if she had sued Owen initially. In either situation, in the plain language of the statute, the "matter in controversy" could not be "between . . . citizens of different States." 14 It is a fundamental precept that federal courts are courts of limited jurisdiction. The limits upon federal jurisdiction, whether imposed by the Constitution or by Congress, must be neither disregarded nor evaded. Yet under the reasoning of the Court of Appeals in this case, a plaintiff could defeat the statutory requirement of complete diversity by the simple expedient of suing only those defendants who were of diverse citizenship and waiting for them to implead nondiverse defendants.17 If, as the Court of Appeals thought, a "common nucleus of operative fact" were the only requirement for ancillary jurisdiction in a diversity case, there would be no principled reason why the respondent in this case could not have joined her cause of action against Owen in her original complaint as ancillary to her claim against OPPD. Congress' requirement of complete diversity would thus have been evaded completely. 15 It is true, as the Court of Appeals noted, that the exercise of ancillary jurisdiction over nonfederal claims has often been upheld in situations involving impleader, cross-claims or counterclaims.18 But in determining whether jurisdiction over a nonfederal claim exists, the context in which the nonfederal claim is asserted is crucial. See Aldinger v. Howard, 427 U.S., at 14, 96 S.Ct., at 2420. And the claim here arises in a setting quite different from the kinds of nonfederal claims that have been viewed in other cases as falling within the ancillary jurisdiction of the federal courts. 16 First, the nonfederal claim in this case was simply not ancillary to the federal one in the same sense that, for example, the impleader by a defendant of a third-party defendant always is. A third-party complaint depends at least in part upon the resolution of the primary lawsuit. See n. 3, supra. Its relation to the original complaint is thus not mere factual similarity but logical dependence. Cf. Moore v. New York Cotton Exchange, 270 U.S. 593, 610, 46 S.Ct. 367, 371, 70 L.Ed. 750. The respondent's claim against the petitioner, however, was entirely separate from her original claim against OPPD, since the petitioner's liability to her depended not at all upon whether or not OPPD was also liable. Far from being an ancillary and dependent claim, it was a new and independent one. 17 Second, the nonfederal claim here was asserted by the plaintiff, who voluntarily chose to bring suit upon a state-law claim in a federal court. By contrast, ancillary jurisdiction typically involves claims by a defending party haled into court against his will, or by another person whose rights might be irretrievably lost unless he could assert them in an ongoing action in a federal court.19 A plaintiff cannot complain if ancillary jurisdiction does not encompass all of his possible claims in a case such as this one, since it is he who has chosen the federal rather than the state forum and must thus accept its limitations. "[T]he efficiency plaintiff seeks so avidly is available without question in the state courts." Kenrose Mfg. Co. v. Fred Whitaker Co., 512 F.2d 890, 894 (CA4).20 18 It is not unreasonable to assume that, in generally requiring complete diversity, Congress did not intend to confine the jurisdiction of federal courts so inflexibly that they are unable to protect legal rights or effectively to resolve an entire, logically entwined lawsuit. Those practical needs are the basis of the doctrine of ancillary jurisdiction. But neither the convenience of litigants nor considerations of judicial economy can suffice to justify extension of the doctrine of ancillary jurisdiction to a plaintiff's cause of action against a citizen of the same State in a diversity case. Congress has established the basic rule that diversity jurisdiction exists under 28 U.S.C. § 1332 only when there is complete diversity of citizenship. "The policy of the statute calls for its strict construction." Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248; Indianapolis v. Chase Nat. Bank, 314 U.S. 63, 76, 62 S.Ct. 15, 20, 86 L.Ed. 47; Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 675, 86 L.Ed. 951; Snyder v. Harris, 394 U.S., at 340, 89 S.Ct., at 1058. To allow the requirement of complete diversity to be circumvented as it was in this case would simply flout the congressional command.21 19 Accordingly, the judgment of the Court of Appeals is reversed. 20 It is so ordered. 21 Mr. Justice WHITE, with whom Mr. Justice BRENNAN joins, dissenting. 22 The Court today states that "[i]t is not unreasonable to assume that, in generally requiring complete diversity, Congress did not intend to confine the jurisdiction of federal courts so inflexibly that they are unable . . . effectively to resolve an entire, logically entwined lawsuit." Ante, at 377. In spite of this recognition, the majority goes on to hold that in diversity suits federal courts do not have the jurisdictional power to entertain a claim asserted by a plaintiff against a third-party defendant, no matter how entwined it is with the matter already before the court, unless there is an independent basis for jurisdiction over that claim. Because I find no support for such a requirement in either Art. III of the Constitution or in any statutory law, I dissent from the Court's "unnecessarily grudging"1 approach. 23 The plaintiff below, Mrs. Kroger, chose to bring her lawsuit against the Omaha Public Power District (OPPD) in Federal District Court. No one questions the power of the District Court to entertain this claim, for Mrs. Kroger at the time was a citizen of Iowa, OPPD was a citizen of Nebraska, and the amount in controversy was greater than $10,000; jurisdiction therefore existed under 28 U.S.C. § 1332(a). As permitted by Fed.Rule Civ.Proc. 14(a), OPPD impleaded petitioner Owen Equipment & Erection Co. (Owen). Although OPPD's claim against Owen did not raise a federal question and although it was alleged that Owen was a citizen of the same State as OPPD, the parties and the court apparently believed that the District Court's ancillary jurisdiction encompassed this claim. Subsequently, Mrs. Kroger asserted a claim against Owen, everyone believing at the time that these two parties were citizens of different States. Because it later came to light that Mrs. Kroger and Owen were in fact both citizens of Iowa, the Court concludes that the District Court lacked jurisdiction over the claim. 24 In Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966), we held that once a claim has been stated that is of sufficient substance to confer subject-matter jurisdiction on the federal district court, the court has judicial power to consider a nonfederal claim if it and the federal claim2 are derived from "a common nucleus of operative fact." Although the specific facts of that case concerned a state claim that was said to be pendent to a federal-question claim, the Court's language and reasoning were broad enough to cover the instant factual situation: "[I]f, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all i one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole." Ibid. (footnote omitted). In the present case, Mrs. Kroger's claim against Owen and her claim against OPPD derived from a common nucleus of fact; this is necessarily so because in order for a plaintiff to assert a claim against a third-party defendant, Fed.Rule Civ.Proc. 14(a) requires that it "aris[e] out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff . . . ." Furthermore, the substantiality of the claim Mrs. Kroger asserted against OPPD is unquestioned. Accordingly, as far as Art. III of the Constitution is concerned, the District Court had power to entertain Mrs. Kroger's claim against Owen. 25 The majority correctly points out, however, that the analysis cannot stop here. As Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), teaches, the jurisdictional power of the federal courts may be limited by Congress, as well as by the Constitution. In Aldinger, although the plaintiff's state claim against Spokane County was closely connected with her 42 U.S.C. § 1983 claim against the county treasurer, the Court held that the District Court did not have pendent jurisdiction over the state claim, for, under the Court's precedents at that time, it was thought that Congress had specifically determined not to confer on the federal courts jurisdiction over civil rights claims against cities and counties. That being so, the Court refused to allow "the federal courts to fashion a jurisdictional doctrine under the general language of Art. III enabling them to circumvent this exclusion . . . ." 427 U.S., at 16,3 96 S.Ct., at 2421. 26 In the present case, the only indication of congressional intent that the Court can find is that contained in the diversity jurisdictional statute, 28 U.S.C. § 1332(a), which states that "district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000 . . . and is between . . . citizens of different States . . . ." Because this statute has been interpreted as requiring complete diversity of citizenship between each plaintiff and each defendant, Strawbridge v. Curtiss, 3 Cranch 267, 20 L.Ed. 179 (1806), the Court holds that the District Court did not have ancillary jurisdiction over Mrs. Kroger's claim against Owen. In so holding, the Court unnecessarily expands the scope of the complete-diversity requirement while substantially limiting the doctrine of ancillary jurisdiction. 27 The complete-diversity requirement, of course, could be viewed as meaning that in a diversity case, a federal district court may adjudicate only those claims that are between parties of different States. Thus, in order for a defendant to implead a third-party defendant, there would have to be diversity of citizenship; the same would also be true for cross-claims between defendants and for a third-party defendant's claim against a plaintiff. Even the majority, however, refuses to read the complete-diversity requirement so broadly; it recognizes with seeming approval the exercise of ancillary jurisdiction over nonfederal claims in situations involving impleader, cross-claims, and co nterclaims. See ante, at 375. Given the Court's willingness to recognize ancillary jurisdiction in these contexts, despite the requirements of § 1332(a), I see no justification for the Court's refusal to approve the District Court's exercise of ancillary jurisdiction in the present case. 28 It is significant that a plaintiff who asserts a claim against a third-party defendant is not seeking to add a new party to the lawsuit. In the present case, for example, Owen had already been brought into the suit by OPPD, and, that having been done, Mrs. Kroger merely sought to assert against Owen a claim arising out of the same transaction that was already before the court. Thus the situation presented here is unlike that in Aldinger, supra, wherein the Court noted: 29 "[I]t is one thing to authorize two parties, already present in federal court by virtue of a case over which the court has jurisdiction, to litigate in addition to their federal claim a state-law claim over which there is no independent basis of federal jurisdiction. But it is quite another thing to permit a plaintiff, who has asserted a claim against one defendant with respect to which there is federal jurisdiction, to join an entirely different defendant on the basis of a state-law claim over which there is no independent basis of federal jurisdiction, simply because his claim against the first defendant and his claim against the second defendant 'derive from a common nucleus of operative fact.' . . . True, the same considerations of judicial economy would be served insofar as plaintiff's claims 'are such that he would ordinarily be expected to try them all in one judicial proceeding . . . .' [Gibbs, 383 U.S., at 725, 86 S.Ct., at 1138.] But the addition of a completely new party would run counter to the well-established principle that federal courts, as opposed to state trial courts of general jurisdiction, are courts of limited jurisdiction marked out by Congress." 427 U.S., at 14-15, 96 S.Ct., at 2420. 30 Because in the instant case Mrs. Kroger merely sought to assert a claim against someone already a party to the suit, considerations of judicial economy, convenience, and fairness to the litigants—the factors relied upon in Gibbs—support the recognition of ancillary jurisdiction here. Already before the court was the whole question of the cause of Mr. Kroger's death. Mrs. Kroger initially contended that OPPD was responsible; OPPD in turn contended that Owen's negligence had been the proximate cause of Mr. Kroger's death. In spite of the fact that the question of Owen's negligence was already before the District Court, the majority requires Mrs. Kroger to bring a separate action in state court in order to assert that very claim. Even if the Iowa statute of limitations will still permit such a suit, see ante, at 376-377, n. 20, considerations of judicial economy are certainly not served by requiring such duplicative litigation.4 31 The majority, however, brushes aside such considerations of convenience, judicial economy, and fairness because it concludes that recognizing ancillary jurisdiction over a plaintiff's claim against a third-party defendant would permit the plaintiff to circumvent the complete-diversity requirement and thereby "flout the congressional command." Since the plaintiff in such a case does not bring the third-party defendant into the suit, however, there is no occasion for deliberate circumvention of the diversity requirement, absent collusion with the defendant. In the case of such collusion, of which there is absolutely no indication here,5 the court can dismiss the action under the authority of 28 U.S.C. § 1359.6 In the absence of such collusion, there is no reason to adopt an absolute rule prohibiting the plaintiff from asserting those claims that he may properly assert against the third-party defendant pursuant to Fed.Rule Civ.Proc. 14(a). The plaintiff in such a situation brings suit against the defendant only with absolutely no assurance that the defendant will decide or be able to implead a particular third-party defendant. Since the plaintiff has no control over the defendant's decision to implead a third party, the fact that he could not have originally sued that party in federal court should be irrelevant. Moreover, the fact that a plaintiff in some cases may be able to foresee the subsequent chain of events leading to the impleader does not seem to me to be a sufficient reason to declare that a district court does not have the power to exercise ancillary jurisdiction over the plaintiff's claims against the third-party defendant.7 32 We have previously noted that "[s]ubsequent decisions of this Court indicate that Strawbridge is not to be given an expansive reading." State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 531 n. 6, 87 S.Ct. 1199, 1203, 18 L.Ed.2d 270 (1967). In light of this teaching, it seems to me appropriate to view § 1332 as requiring complete diversity only between the plaintiff and those parties he actually brings into the suit. Beyond that, I would hold that in a diversity case the District Court has power, both constitutional and statutory, to entertain all claims among the parties arising from the same nucleus of operative fact as the plaintiff's original, jurisdiction-conferring claim against the defendant. Accordingly, I dissent from the Court's disposition of the present case. 1 Fawvor v. Texaco, Inc., 546 F.2d 636 (CA5); Saalfrank v. O'Daniel, 533 F.2d 325 (CA6); Parker v. W. W. Moore & Sons, 528 F.2d 764 (CA4); Joseph v. Chrysler Corp., 513 F.2d 626 (CA3), aff'g 61 F.R.D. 347 (WD Pa.); Kenrose Mfg. Co. v. Fred Whitaker Co., 512 F.2d 890 (CA4). 2 Rule 14(a) provides in relevant part: "At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. . . . The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff's claim as provided in Rule 12 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 13. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses as provided in Rule 12 and his counter-claims and cross-claims as provided in Rule 13." 3 Under Rule 14(a), a third-party defendant may not be impleaded merely because he may be liable to the plaintiff. See n. 2, supra ; see also Advisory Committee's Notes on 1946 Amendment to Fed.Rule Civ.Proc. 14, 28 U.S.C. App., pp. 7752-7753. While the third-party complaint in this case alleged merely that Owen's negligence caused Kroger's death, and the basis of Owen's alleged liability to OPPD is nowhere spelled out, OPPD evidently relied upon the state common-law right of ontribution among joint tortfeasors. See Dairyland Ins. Co. v. Mumert, 212 N.W.2d 436, 438 (Iowa); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23. The petitioner has never challenged the propriety of the third-party complaint as such. 4 Judgment was entered pursuant to Fed.Rule Civ.Proc. 54(b), and the Court of Appeals affirmed. Kroger v. Omaha Public Power District, 523 F.2d 161 (CA8). 5 The problem apparently was one of geography. Although the Missouri River generally marks the boundary between Iowa and Nebraska, Carter Lake, Iowa, where the accident occurred and where Owen had its main office, lies west of the river, adjacent to Omaha, Neb. Apparently the river once avulsed at one of its bends, cutting Carter Lake off from the rest of Iowa. 6 Title 28 U.S.C. § 1332(c) provides that "[f]or the purposes of [diversity jurisdiction] . . ., a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." 7 Fed.Rule Civ.Proc. 82; see Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319; Sibbach v. Wilson & Co., 312 U.S. 1, 10, 61 S.Ct. 422, 424, 85 L.Ed. 479. 8 No more than in Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276, is it necessary to determine here "whether there are any 'principled' differences between pendent and ancillary jurisdiction; or, if there are, what effect Gibbs had on such differences." Id., at 13, 96 S.Ct., at 2420. 9 The Court further noted that even when such power exists, its exercise remains a matter of discretion based upon "considerations of judicial economy, convenience and fairness to litigants," 383 U.S., at 726, 86 S.Ct., at 1139, and held that the District Court had not abused its discretion in retaining jurisdiction of the state-law claim. 10 Federal jurisdiction in Gibbs was based upon the existence of a question of federal law. The Court of Appeals in the present case believed that the "common nucleus of operative fact" test also determines the outer boundaries of constitutionally permissible federal jurisdiction when that jurisdiction is based upon diversity of citizenship. We may assume without deciding that the Court of Appeals was correct in this regard. See also n. 13, infra. 11 As used in this opinion, the term "nonfederal claim" means one as to which there is no independent basis for federal jurisdiction. Conversely, a "federal claim" means one as to which an independent basis for federal jurisdiction exists. 12 In Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611, we have overruled Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, insofar as it held that political subdivisions are never amenable to suit under 42 U.S.C. § 1983—the basis of the holding in Aldinger that 28 U.S.C. § 1343(3) does not allow pendent jurisdiction of a state-law claim against a county. But Monell in no way qualifies the holding of Aldinger that the jurisdictional questions presented in a case such as this one are statutory as well as constitutional, a point on which the dissenters in Aldinger agreed with the Court. See 427 U.S., at 22 n.3, 96 S.Ct., at 2424 (BRENNAN, J., joined by MARSHALL and BLACKMUN, JJ., dissenting). 13 E. g., Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435; Coal Co. v. Blatchford, 11 Wall. 172, 20 L.Ed. 179; Indianapolis v. Chase Nat. Bank, 314 U.S. 63, 69, 62 S.Ct. 15, 16, 86 L.Ed. 47; American Fire & Cas. Co. v. Finn, 341 U.S. 6, 17, 71 S.Ct. 534, 541, 95 L.Ed. 702. It is settled that complete diversity is not a constitutional requirement. State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 530-531, 87 S.Ct. 1199, 1203-1204, 18 L.Ed.2d 270. 14 The various Acts are enumerated and described in 1 J. Moore, Federal Practice ¶ 0.71[4] (2d ed. 1977). 15 See C. Wright, Law of Federal Courts § 23 (3d ed. 1976), for a discussion of the various theories that have been advanced to explain the constitutional grant of diversity-of-citizenship jurisdiction. 16 Notably, Congress enacted § 1332 as part of the Judicial Code of 1948, 62 Stat. 930, shortly after Rule 14 was amended in 1946. When the Rule was amended, the Advisory Committee noted that "in any case where the plaintiff could not have joined the third party originally because of jurisdictional limitations such as lack of diversity of citizenship, the majority view is that any attempt by the plaintiff to amend his complaint and assert a claim against the impleaded third party would be unavailing." 28 U.S.C. App., p. 7752. The subsequent re-enactment without relevant change of the diversity statute may thus be seen as evidence of congressional approval of that "majority view." 17 This is not an unlikely hypothesis, since a defendant in a tort suit such as this one would surely try to limit his liability by impleading any joint tortfeasors for indemnity or contribution. Some commentators have suggested that the possible abuse of third-party practice could be dealt with under 28 U.S.C. § 1359, which forbids collusive attempts to create federal jurisdiction. See, e. g., 3 J. Moore, Federal Practice ¶ 14.27[1], p. 14-571 (2d ed. 1974); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1444, pp. 231-232 (1971); Note, Rule 14 Claims and Ancillary Jurisdiction, 57 Va.L.Rev. 265, 274-275 (1971). The dissenting opinion today also expresses this view. Post, at 383. But there is nothing necessarily collusive about a plaintiff's selectively suing only those tortfeasors of diverse citizenship, or about the named defendants' desire to implead joint tortfeasors. Nonetheless, the requirement of complete diversity would be eviscerated by such a course of events. 18 The ancillary jurisdiction of the federal courts derives originally from cases such as Freeman v. Howe, 24 How. 450, 16 L.Ed. 749, which held that when federal jurisdiction "effectively controls the property or fund under dispute, other claimants thereto should be allowed to intervene in order to protect their interests, without regard to jurisdiction." Aldinger v. Howard, 427 U.S., at 11, 96 S.Ct. at 2419. More recently, it has been said to include cases that involve multiparty practice, such as compulsory counterclaims, e. g., Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750; impleader, e. g., H. L. Peterson Co. v. Applewhite, 383 F.2d 430, 433 (CA5); Dery v. Wyer, 265 F.2d 804 (CA2); cross-claims, e. g., LASA Per L'Industria Del Marmo Soc. Per Azioni v. Alexander, 414 F.2d 143 (CA6); Scott v. Fancher, 369 F.2d 842, 844 (CA5); Glen Falls Indemnity Co. v. United States ex rel. Westinghouse Electric Supply Co., 229 F.2d 370, 373-374 (CA9); or intervention as of right, e. g., Phelps v. Oaks, 117 U.S. 236, 241, 6 S.Ct. 714, 716, 29 L.Ed. 888; Smith Petroleum Service, Inc. v. Monsanto Chemical Co., 420 F.2d 1103, 1113-1115 (CA5). 19 See n. 18, supra. 20 Whether Iowa's statute of limitations would now bar an action by the respondent in an Iowa court is, of course, entirely a matter of state law. See Iowa Code § 614.10 (1977). Compare 558 F.2d at 420, with id., at 432 n. 42 (Bright, J., dissenting; cf. Burnett v. New York Central R. Co., 380 U.S. 424, 431-432, and n. 9, 85 S.Ct. 1050, 1056-1057, 13 L.Ed.2d 941. 21 Our holding is that the District Court lacked power to entertain the respondent's lawsuit against the petitioner. Thus, the asserted inequity in the respondent's alleged concealment of its citizenship is irrelevant. Federal judicial power does not depend upon "prior action or consent of the parties." American Fire & Cas. Co. v. Finn, 341 U.S., at 17-18, 71 S.Ct., at 542. 1 See Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). 2 I use the terms "federal claim" and "nonfederal claim" in the same sense that the majority uses them. See ante, at 372 n. 11. 3 We were careful in Aldinger to point out the limited nature of our holding: "There are, of course, many variations in the language which Congress has employed to confer jurisdiction upon the federal courts, and we decide here only the issue of so-called 'pendent party' jurisdiction with respect to a claim brought under §§ 1343(3) and 1983. Other statutory grants and other alignments of parties and claims might call for a different result." 427 U.S., at 18, 96 S.Ct., at 2422. 4 It is true that prior to trial OPPD was dismissed as a party to the suit and that, as we indicated in Gibbs, the dismissal prior to trial of the federal claim will generally require the dismissal of the nonfederal claim as well. See 383 U.S., at 726, 86 S.Ct., at 1139. Given the unusual facts of the present case, however—in particular, the fact that the actual location of Owen's principal place of business was not revealed until the third day of trial—fairness to the parties would lead me to conclude that the District Court did not abuse its discretion in retaining jurisdiction over Mrs. Kroger's claim against Owen. Under the Court's disposition, of course, it would not matter whether or not the federal claim is tried, for in either situation the court would have no jurisdiction over the plaintiff's nonfederal claim against the third-party defendant. 5 When Mrs. Kroger brought suit, it was believed that Owen was a citizen of Nebraska, not Iowa. Therefore, had she desired at that time to make Owen a party to the suit, she would have done so directly by naming Owen as a defendant. 6 Section 1359 states: "A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court." 7 Under the Gibbs analysis, recognition of the district court's power to hear a plaintiff's nonfederal claim against a third-party defendant in a diversity suit would not mean that the court would be required to entertain such claims in all cases. The district court would have the discretion to dismiss the nonfederal claim if it concluded that the interests of judicial economy, convenience, and fairness would not be served by the retention of the claim in the federal lawsuit. See Gibbs, 383 U.S., at 726, 86 S.Ct., at 1139. Accordingly, the majority's concerns that lead it to conclude that ancillary jurisdiction should not be recognized in the present situation could be met on a case-by-case basis, rather than by the absolute rule it adopts.

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437 U.S. 443 98 S.Ct. 2441 57 L.Ed.2d 337 ZENITH RADIO CORPORATION, Petitioner,v.UNITED STATES. No. 77-539. Argued April 25, 1978. Decided June 21, 1978. Syllabus. Petitioner, an American manufacturer of consumer electronic products, filed a petition with the Commissioner of Customs, requesting assessment under § 303 of the Tar ff Act of 1930 of countervailing duties on various consumer electronic products exported from Japan to this country. Petitioner contended that the products benefited from bounties or grants paid or conferred by Japan because Japan imposes a commodity tax (an "indirect" tax) on those products when they are sold in that country but "remits" the tax when the products are exported, any tax paid on the shipment of a product being refunded upon the subsequent exportation. Section 303 provides that whenever a foreign country pays a "bounty or grant" upon the exportation of a product from that country, the Secretary of the Treasury (Secretary) must levy a countervailing duty "equal to the net amount of such bounty or grant" upon the importation of the product into the United States. After rejection of its request petitioner filed suit in the Customs Court, claiming that the Treasury Department had erred in concluding that remission of the Japanese tax was not a bounty or grant within the purview of § 303. The Secretary contended that since the remission of the tax was "nonexcessive" (i. e., not above the amount of the tax paid or otherwise due), § 303 did not require assessment of a countervailing duty. Relying on Downs v. United States, 187 U.S. 496, 23 S.Ct. 222, 47 L.Ed. 275, the Customs Court ruled in petitioner's favor. The Court of Customs and Patent Appeals reversed. Held : Japan does not confer a "bounty or grant" within the meaning of § 303 on the consumer electronic products by failing to impose a commodity tax on those products when they are exported to this country, while imposing the tax on the products when they are sold in Japan. Downs v. United States, supra, distinguished. Pp. 450-462. (a) The Secretary's statutory interpretation that was followed in this case has been consistently maintained since the basic countervailing-duty statute was enacted in 1897, and that administrative interpretation is entitled to great weight. See Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616. Pp. 450-451. (b) The legislative history of the statute suggests that the term "bounty" was not intended to encompass the nonexcessive remission of an indirect tax. Pp. 451-455. (c) The Secretary's interpretation was reasonable in light of the statutory purpose of the countervailing duty, viz., offsetting the unfair competitive advantage that foreign products would otherwise enjoy from export subsidies paid by their governments. In deciding in 1898 that a nonexcessive remission of indirect taxes did not give the exporter an unfair competitive advantage, the Secretary permissibly viewed the remission as a reasonable measure for avoiding double taxation of exports—once by the foreign country and once upon sale in this country. Pp. 455-457. (d) The Secretary's interpretation is as permissible today as it was in 1898. The statute has been re-enacted five times with no modification of the relevant language, and the Secretary's position has been incorporated into an international agreement followed by every major trading nation in the world. It is not for the judiciary to substitute its views as to the fairness and economic effect of remitting indirect taxes. Pp. 457-459. (e) Downs v. United States, supra, did not involve the issue of whether a nonexcessive remission of taxes, standing alone, would have constituted a bounty on exportation, and is not dispositive of this case. Pp. 459-462. 64 C.C.P.A. 130, 562 F.2d 1209, affirmed. Frederick L. Ikenson, Washington, D.C., for petitioner. Mr. Justice MARSHALL delivered the opinion of the Court. 1 Under § 303(a) of the Tariff Act of 1930, 46 Stat. 687, as amended, 19 U.S.C. § 1303(a) (1976 ed.), whenever a foreign country pays a "bounty or grant" upon the exportation of a product from that country, the Secretary of the Treasury is required to levy a countervailing duty, "equal to the net amount of such bounty or grant," upon mportation of the product into the United States.1 The issue in this case is whether Japan confers a "bounty" or "grant" on certain consumer electronic products by failing to impose a commodity tax on those products when they are exported, while imposing the tax on the products when they are sold in Japan. 2 * Under the Commodity Tax Law of Japan, Law No. 48 of 1962, see App. 44-48, a variety of consumer goods, including the electronic products at issue here, are subject to an "indirect" tax—a tax levied on the goods themselves, and computed as a percentage of the manufacturer's sales price rather than the income or wealth of the purchaser or seller. The Japanese tax applies both to products manufactured in Japan and to those imported into Japan.2 On goods manufactured in Japan, the tax is levied upon shipment from the factory; imported products are taxed when they are withdrawn from the customs warehouse. Only goods destined for consumption in Japan are subject to the tax, however. Products shipped for export are exempt, and any tax paid upon the shipment of a product is refunded if the product is subsequently exported. Thus the tax is "remitted" on exports.3 3 In April 1970 petitioner, an American manufacturer of consumer electronic products, filed a petition with the Commissioner of Customs,4 requesting assessment of countervailing duties on a number of consumer electronic products exported from Japan to this country.5 Petitioner alleged that Japan had bestowed a "bounty or grant" upon exportation of these products by, inter alia, remitting the Japanese Commodity Tax that would have been imposed had the products been sold within Japan. In January 1976, after soliciting the views of interested parties and conducting an investigation pursuant to Treasury Department regulation , see 19 CFR § 159.47(c) (1977), the Acting Commissioner of Customs published a notice of final determination, rejecting petitioner's request. 41 Fed.Reg. 1298 (1976).6 4 Petitioner then filed suit in the Customs Court, claiming that the Treasury Department had erred in concluding that remission of the Japanese Commodity Tax was not a bounty or grant within the purview of the countervailing-duty statute.7 The Department defended on the ground that, since the remission of indirect taxes was "nonexcessive," the statute did not require assessment of a countervailing duty. In the Department's terminology, a remission of taxes is "nonexcessive" if it does not exceed the amount of tax paid or otherwise due; thus, for example, if a tax of $5 is levied on goods at the factory, the return of the $5 upon exportation would be "nonexcessive," whereas a payment of $8 from the government to the manufacturer upon exportation would be "excessive" by $3. The Department pointed out that the current version of § 303 is in all relevant respects unchanged from the countervailing-duty statute enacted by Congress in 1897,8 and that the Secretary—in decisions dating back to 1898—has always taken the position that the nonexcessive remission of an indirect tax is not a bounty or grant within the meaning of the statute.9 5 On cross-motions for summary judgment, the Customs Court ruled in favor of petitioner and ordered the Secretary to assess countervailing duties on all Japanese consumer electronic products specified in petitioner's complaint. 430 F.Supp. 242 (1977). The court acknowledged the Secretary's longstanding interpretation of the statute. It concluded, however, that this administrative practice could not be sustained in light of this Court's decision in Downs v. United States, 187 U.S. 496, 23 S.Ct. 222, 47 L.Ed. 275 (1903), which held that an export bounty had been conferred by a complicated Russian scheme for the regulation of sugar production and sale, involving, among other elements, remission of excise taxes in the event of exportation. 6 On appeal by the Government, the Court of Customs and Patent Appeals, dividing 3-2, reversed the judgment of the Customs Court and remanded for entry of summary judgment in favor of the United States. 64 C.C.P.A. 130, 562 F.2d 1209 (1977). The majority opinion distinguished Downs on the ground that it did not decide the question of whether nonexcessive remission of an indirect tax, standing alone, constitutes a bounty or grant upon exportation. The court then examined the language of § 303 and the legislative history of the 1897 provision and concluded that, "in determining whether a bounty or grant has been conferred, it is the economic result of the foreign government's action which controls." 64 C.C.P.A., at 138-139, 562 F.2d, at 1216. Relying primarily on the "long-continued" and "uniform" administrative practice, id., at 142-143, 146-147, 562 F.2d at 1218-1219, 1222-1223, and secondarily on congressional "acquiescence" in this practice through repeated re-enactment of the controlling statutory language, id., 143-144, 562 F.2d, at 1220, the court held that interpretation of "bounty or grant" so as not to include a nonexcessive remission of an indirect tax is "a lawfully permissible interpretation of § 303." Id., at 147, 562 F.2d, at 1223. 7 We granted certiorari, 434 U.S. 1060, 98 S.Ct. 1231, 55 L.Ed.2d 760 (1978), and we now affirm. II 8 It is undisputed that the Treasury Department adopted the statutory interpretation at issue here less than a year after passage of the basic countervailing-duty statute in 1897, see T.D. 19321, 1 Synopsis of [Treasury] Decisions 696 (1898), and that the Department has uniformly maintained this position for over 80 years.10 This longstanding and consistent administrative interpretation is entitled to considerable weight. 9 "When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration. 'To sustain [an agency's] application of [a] statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.' " Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), quoting Unemploym nt Compensation Comm'n v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136 (1946). 10 Moreover, an administrative "practice has peculiar weight when it involves a contemporaneous construction of a statute by the [persons] charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new." Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933); see e. g., Power Reactor Co. v. Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924 (1961). 11 The question is thus whether, in light of the normal aids to statutory construction, the Department's interpretation is "sufficiently reasonable" to be accepted by a reviewing court. Train v. Natural Resources Defense Council, 421 U.S. 60, 75, 95 S.Ct. 1470, 1479, 43 L.Ed.2d 731 (1975). Our examination of the language, the legislative history, and the overall purpose of the 1897 provision persuades us that the Department's initial construction of the statute was far from unreasonable; and we are unable to find anything in the events subsequent to that time that convinces us that the Department was required to abandon this interpretation. A. 12 The language of the 1897 statute evolved out of two earlier countervailing-duty provisions that had been applicable only to sugar imports. The first provision was enacted in 1890, apparently for the purpose of protecting domestic sugar refiners from unfair foreign competition; it provided for a fixed countervailing duty on refined sugar imported from countries that "pay, directly or indirectly, a [greater] bounty on the exportation of" refined sugar than on raw sugar. Tariff Act of 1890, ¶ 237, 26 Stat. 584. Although the congressional debates did not focus sharply on the meaning of the word "bounty," what evidence there is suggests that the term was not intended to encompass the nonexcessive remission of an indirect tax. Thus, one strong supporter of increased protection for American sugar producers heavily criticized the export "bounties" conferred by several European governments, and attached a concise description of "The Bounty Systems in Europe"; both the remarks and the description indicated that the "bounties" consisted of the amounts by which government payments exceeded the excise taxes that had been paid upon the beets from which the sugar was produced. See 21 Cong.Rec. 9529, 9532 (1890) (remarks of Sen. Gibson); id., at 9537 (description). According to the description, for example, French sugar manufacturers paid an "excise tax [of] $97.06 per gross ton[,] [b]ut upon the export of a ton of sugar . . . received back as a drawback $117.60, making a clear bounty of $20.54 per gross ton of sugar exported." Ibid. This concept of a "net" bounty—that is, a remission in excess of taxes paid or otherwise due—as the trigger for a countervailing-duty requirement emerged more clearly in the second sugar provision, enacted in 1894. Tariff Act of 1894, ¶ 1821/2, 28 Stat. 521. The 1894 statute extended the countervailing-duty requirement to all imported sugar, raw as well as refined, and provided for payment of a fixed duty on all sugar coming from a country which "pays, directly or indirectly, a bounty on the export thereof." A proviso to the statute made clear, however, that no duties were to be assessed in the event that the "bounty" did not exceed the amount of taxes already paid.11 The author of the 1894 provision, Senator Jones, expressly characterized this difference between the amounts received upon exportation and the amounts already paid in taxes as the "net bounty" on exportation. 26 Cong.Rec. 5705 (1894) (discussing German export bounty system). 13 The 1897 statute greatly expanded upon the coverage of the 1894 provision by making the countervailing-duty requirement applicable to all imported products. Tariff Act of 1897, § 5, 30 Stat. 205, quoted in n. 8, supra. There are strong indications, however, that Congress intended to retain the "net bounty" concept of the 1894 provision as the criterion for determining when a countervailing duty was to be imposed. Although the proviso in the 1894 law was deleted, the 1897 statute did provide for levying of duties equal to the "net amount" of any export bounty or grant. And the legislative history suggests that this language, in addition to establishing a responsive mechanism for determining the appropriate amount of countervailing duty, was intended to incorporate the prior rule that nonexcessive remission of indirect taxes would not trigger the countervailing-duty requirement at all. 14 There is no question that the prior rule was carried forward in the version of the 1897 statute that originally passed the House. This version did not extend the countervailing-duty requirement to all imports. Instead, it merely modified the 1894 sugar provision so that the amount of the countervailing duty, rather than being fixed, would be "equal to [the export] bounty, or so much thereof as may be in excess of any tax collected by [the foreign] country upon [the] exported [sugar], or upon the beet or cane from which it was produced . . . ." See 30 Cong.Rec. 1634 (1897). The House Report unequivocally stated that the countervailing duty was intended to be "equivalent to the net export bounty paid by any country." H.R.Rep. No. 1, 55th Cong., 1st Sess., 4-5 (1897) (emphasis supplied). 15 The Senate deleted the House provision from the bill and replaced it with the more general provision that was eventually enacted into law. See 30 Cong.Rec. 1733 (1897) (striking House provision); id., at 2226 (adopting general provision); id., at 2705, 2750 (House agreement to Senate amendment). The debates in the Senate indicate, however, that—aside from extending the coverage of the House provision—the Senate did not intend to change its substance. Senator Allison, the sponsor of the Senate amendment, explained that the House provision was being "stricken from the bill," because "the same paragraph in substance [is] being inserted [in] section [5], making this countervailing duty apply to all articles instead of to [sugar] alone." Id., at 1635. See also id., at 1732 (remarks of Sen. White). Senator Allison twice remarked that the countervailing duty that he was proposing was an "imitation" of the one provided in the 1894 statute, id., at 1719; see id., at 1674, and later in the debates he stated—in response to a question as to whether the countervailing duty would be equal to "the whole amount of the export bounty" that "[the bounty contemplated] is the net bounty, less the taxes and reductions . . .," id., at 1721 (answering question from Sen. Vest). 16 An additional indication of the Senate's intent can be found in the extended discussion of the effect that the statute would have with respect to German sugar exports. Time after time the amount of the German "bounty"—and, correspondingly, the amount of the countervailing duty that would be imposed under the statute was stated to be 38¢ per 100 pounds of refined sugar, and 27¢a per 100 pounds of raw sugar. See, e. g., id., at 1650 (remarks of Sens. Allison, Vest, and Caffery), 1658 (Sens. Allison and Jones), 1680 (Sen. Jones), 1719 (Sens. Allison and Lindsay), 1729 (Sen. C ffery), 2823-2824 (Sens. Aldrich and Jones). These figures were supplied by the Treasury Department itself, see id., at 1719 (remarks of Sen. Allison), 1722 (letter from Treasury Department to Sen. Caffery), and were utilized by both proponents and opponents of the measure. And yet it was frequently acknowledged during the debates that Germany exempted sugar exports from its domestic consumption tax of $2.16 per 100 pounds, an amount far in excess of the 38¢ and 27¢ figures. See, e. g., id., at 1646 (remarks of Sen. Vest), 1651 (Sen. Caffery), 1697 (same), 2205 (same). Had the Senators considered the mere remission of an indirect tax to be a "bounty," it seems unlikely that they would have stated that the German "bounties" were only 38¢ and 27¢ per 100 pounds.12 Especially in light of the strong opposition to countervailing duties even of the magnitude of 38¢ and 27¢, see e. g., id., at 1719 (remarks of Sen. Lindsay), 2203-2205 (remarks of Sen. Gray), it seems reasonable to infer that Congress did not intend to impose countervailing duties of many times this magnitude. B 17 Regardless of whether this legislative history absolutely compelled the Secretary to interpret "bounty or grant" so as not to encompass any nonexcessive remission of an indirect tax, there can be no doubt that such a construction was reasonable in light of the statutory purpose. Cf. Mourning v. Family Publications Service, Inc., 411 U.S. 356, 374, 93 S.Ct. 1652, 1663, 36 L.Ed.2d 318 (1973). This purpose is relatively clear from the face of the statute and is confirmed by the congressional debates: The countervailing duty was intended to offset the unfair competitive advantage that foreign producers would otherwise enjoy from export subsidies paid by their governments. See, e. g., 30 Cong.Rec. 1674 (remarks of Sen. Allison), 2205 (Sen. Caffery), 2225 (Sen. Lindsay) (1897). The Treasury Department was well positioned to establish rules of decision that would accurately carry out this purpose, particularly sin e it had contributed the very figures relied upon by Congress in enacting the statute. See Zuber v. Allen, 396 U.S. 168, 192, 90 S.Ct. 314, 327, 24 L.Ed.2d 345 (1969). 18 In deciding in 1898 that a nonexcessive remission of indirect taxes did not result in the type of competitive advantage that Congress intended to counteract, the Department was clearly acting in accordance with the shared assumptions of the day as to the fairness and economic effect of that practice. The theory underlying the Department's position was that a foreign country's remission of indirect taxes did not constitute subsidization of that country's exports. Rather, such remission was viewed as a reasonable measure for avoiding double taxation of exports—once by the foreign country and once upon sale in this country. As explained in a recent study prepared by the Department for the Senate Committee on Finance: 19 "[The Department's construction was] based on the principle that, since exports are not consumed in the country of production, they should not be subject to consumption taxes in that country. The theory has been that the application of countervailing duties to the rebate of consumption [and other indirect] taxes would have the effect of double taxation of the product, since the United States would not only impose its own indirect taxes, such as Federal and state excise taxes and state and local sales taxes, but would also collect, through the use of the countervailing duty, the indirect tax imposed by the exporting country on domestically consumed goods." Senate Committee on Finance, Executive Branch GATT Studies, 93d Cong., 2d Sess., 17-18 (1974). 20 This intuitively appealing principle regarding double taxation had been widely accepted both in this country and abroad for many years prior to enactment of the 1897 statute. See, e. g., Act of July 4, 1789, § 3, 1 Stat. 26 (remission of import duties upon exportation of products); 4 Works and Correspondence of D. Ricardo 216-217 (pamphlets and papers published in 1822); A. Smith, An Inquiry Into the Nature and Causes of the Wealth of Nations, Book Four, ch. IV (1776). C 21 The Secretary's interpretation of the countervailing-duty statute is as permissible today as it was in 1898. The statute has been re-enacted five times by Congress without any modification of the relevant language, see n. 8, supra, and, whether or not Congress can be said to have "acquiesced" in the administrative practice, it certainly has not acted to change it. At the same time, the Secretary's position has been incorporated into the General Agreement on Tariffs and Trade (GATT),13 which is followed by every major trading nation in the world; foreign tax systems as well as private expectations thus have been built on the assumption that countervailing duties would not be imposed on nonexcessive remissions of indirect taxes. In light of these substantial reliance interests, the longstanding administrative construction of the statute should "not be disturbed except for cogent reasons." McLaren v. Fleischer, 256 U.S. 477, 481, 41 S.Ct. 577, 578, 65 L.Ed.2d 1052 (1921); see Udall v. Tallman, 380 U.S., at 18, 85 S.Ct., at 802. 22 Aside from the contention, discussed in Part III, infra, that the Department's construction is inconsistent with this Court's decisions, petitioner's sole argument is that the Department's position is premised on false economic assumptions that should be rejected by the courts. In particular, petitioner points to "modern" economic theory suggesting that remission of indirect taxes may create an incentive to export in some circumstances, and to recent criticism of the GATT rules as favoring producers in countries that rely more heavily on indirect than on direct taxes.14 But, even assuming that these arguments are at all relevant in view of the legislative history of the 1897 provision and the longstanding administrative construction of the statute, they do not demonstrate the unreasonableness of the Secretary's current position. Even "modern" economists do not agree on the ultimate economic effect of remitting indirect taxes, and—given the present state of economic knowledge—it may be difficult, if not impossible, to measure the precise effect in any particular case. See, e. g., Executive Branch GATT Studies, supra, at 13-14, 17; Marks & Malmgren, Negotiating Nontariff Distortions to Trade, 7 L. & Policy in Int'l Bus. 351 (1975). More fundamentally, as the Senate Committee with responsibility in this area recently stated, "the issues involved in applying the countervailing duty law are complex, and . . . internationally, there is [a] lack of any satisfactory agreement on what constitutes a fair, as opposed to an 'unfair,' subsidy." S.Rep. No. 93-1298, p. 183 (1974). In this situation, it is not the task of the judiciary to substitute its views as to fairness and economic effect for those of the Secretary. III 23 Notwithstanding all of the foregoing considerations, this would be a very different case if, as petitioner contends, the Secretary's practice were contrary to this Court's decision in Downs v. United States, 187 U.S. 496, 23 S.Ct. 222, 47 L.Ed. 275 (1903).15 Upon close examination of the admittedly opaque opinion in that case, however, we do not believe that Downs is controlling on the question presented here. 24 The Russian sugar laws at issue in Downs were, as the Court noted, "very complicated." Id., at 502, 23 S.Ct., at 223. Much of the Court's opinion was devoted to an exposition of these provisions, see id., at 502-512, 23 S.Ct., at 223-227, but for present purposes only two features are relevant: (1) excise taxes imposed on sugar sales within Russia were remitted on exports; and (2) the exporter received, in addition, a certificate entitling its bearer to sell an amount of sugar in Russia, equal to the quantity exported, without paying the full excise tax otherwise due. This certificate was transferable and had a substantial market v lue related to the amount of tax forgiveness that it carried with it. 25 The Secretary, following the same interpretation of the statute that he followed here, imposed a countervailing duty based on the value of the certificates alone, and not on the excise taxes remitted on the exports themselves.16 Downs, the importer, sought review, claiming that the Russian system did not confer any countervailable bounty or grant within the meaning of the 1897 statute. He did not otherwise challenge the amount of the duty assessed by the Secretary.17 26 The issue as it came before this Court, therefore, was whether a nonexcessive remission of an indirect tax, together with the granting of an additional benefit represented by the value of the certificate, constituted a "bounty or grant." Since the amount of the bounty was not in question, neither the parties nor this Court focused carefully on the distinction between remission of the excise tax and conferral of the certificate. Petitioner argues, however, that certain broad language in the Court's opinion suggests that mere remission of a tax, even if nonexcessive, must be considered a bounty or grant within the meaning of the statute. Petitioner relies in particular on the following language: 27 "The details of this elaborate procedure for the production, sale, taxation and exportation of Russian sugar are of much less importance than the two facts which appear clearly through this maze of regulations, viz.: that no sugar is permitted to be sold in Russia that does not pay an excise tax of R. 1.75 per pood, and that sugar exported pays no tax at all. . . . When a tax is imposed upon all sugar produced, but is remitted upon all sugar exported, then, by whatever process, or in whatever manner, or under whatever name it is disguised, it is a bounty upon exportation." Id., 187 U.S., at 515, 23 S.Ct., at 228. 28 This passage is inconsistent with both preceding and subsequent language which suggests that the Court understood the "bounty" to reside in the value of the certificates. At one point the Court stated that "[t]he amount [the exporter] receives for his export certificate [on the market], say R. 1.25, is the exact amount of the bounty he receives upon exportation . . . ." Ibid.18 And the Court in conclusion specifically endorsed the Fourth Circuit's holding to the same effect, see n. 17, supra : 29 "[T]he Circuit Court of Appeals found: 'That the Russian exporter of sugar obtained from his government a certificate, solely because of such exportation, which is worth in the open market of that country from R. 1.25 to R. 1.64 per pood, or from 1.8 to 2.35 cents per pound. Therefore we hold that the government of Russia does secure to the exporter of that country, as the inevitable resul of its action, a money reward or gratuity whenever he exports sugar from Russia.' We all concur in this expression of opinion." 187 U.S., at 516, 23 S.Ct., at 229. 30 Given this other language, we cannot read for its broadest implications the passage on which petitioner relies. In our view the passage does no more than establish the proposition that an excessive remission of taxes—there, the combination of the exemption with the certificates—is an export bounty within the meaning of the statute. 31 As the court below noted, " '[i]t is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used.' " 64 C.C.P.A., at 134, 562 F.2d, at 1213, quoting Cohens v. Virginia, 6 Wheat. 264, 399, 5 L.Ed. 257 (1821). No one argued in Downs that a nonexcessive remission of taxes, standing alone, would have constituted a bounty on exportation, and indeed that issue was not presented on the facts of the case. It must also be remembered, of course, that the Court did affirm the Secretary's decision, and that decision rested on the conclusion that a bounty had been paid only to the extent that the remission exceeded the taxes otherwise due. In light of all these circumstances, the isolated statement in Downs relied upon by petitioner cannot be dispositive here. 32 The judgment of the Court of Customs and Patent Appeals is, accordingly, 33 Affirmed. 1 Section 303(a) provides in relevant part: "(1) Whenever any country, dependency, colony, province, or other political subdivision of government, person, partnership, association, cartel, or corporation, shall pay or bestow, directly or indirectly, any bounty or grant upon the manufacture or production or export of any article or merchandise manufactured or produced in such country, dependency, colony, province, or other political subdivision of government, then upon the importation of such article or merchandise into the United States, whether the same shall be imported directly from the country of production or otherwise, and whether such article or merchandise is imported in the same condition as when exported from the country of production or has been changed in condition by remanufacture or otherwise, there shall be levied and paid, in all such cases, in addition to any duties otherwise imposed, a duty equal to the net amount of such bounty or grant, however the same be paid or bestowed. * * * * * "(5) The Secretary shall from time to time ascertain and determine, or estimate, the net amount of each such bounty or grant, and shall declare the net amount so determined or estimated. "(6) The Secretary shall make all regulations he deems necessary for the identification of articles and merchandise subject to duties under this section and for the assessment and collection of such duties. All determinations by the Secretary under this section, and all determinations by the Commission under subsection (b)(1) of this section (whether affirmative or negative) shall be published in the Federal Register." 19 U.S.C. § 1303(a) (1976 ed.). 2 See App. 12-13, 30-31; An Outline of Japanese Taxes 128-129 (Tax Bureau, Japanese Ministry of Finance, 1976). For the products at issue here, the rate of taxation apparently ranges from 15 to 20%. See App. 13-14; An Outline of Japanese Taxes, supra, at 131. 3 For purposes of this opinion, we adopt the convention followed by the parties and use the term "remission" to encompass both the exemption of exports from initial taxation and the refund to the exporter of any taxes already paid. 4 The Secretary of the Treasury has delegated the authority to make countervailing-duty determinations to the Commissioner of Customs, subject to the Secretary's approval. See 19 CFR § 159.47 (1977). 5 The products included television receivers, radio receivers, radio-phonograph combinations, radio-television-phonograph combinations, radio-tape recorder combinations, record players and phonographs complete with amplifiers and speakers, tape-recorders, tape players, and color television picture tubes. See 37 Fed.Reg. 10087, App. A (1972), as amended, 37 Fed.Reg. 11487 (1972). 6 The notice stated in relevant part that "on the basis of the . . . facts gathered and the investigation conducted pursuant to . . . Customs Regulations . . . a final determination is hereby made . . . that . . . no bounty or grant is being paid or bestowed, directly or indirectly, within the meaning of section 303 . . . upon the . . . exportation of certain consumer electronic products from Japan." 41 Fed.Reg. 1298 (1976). 7 Suit was filed pursuant to a provision, enacted in 1975, authorizing American manufacturers, producers, and wholesalers to seek review in the Customs Court of administrative decisions not to impose countervailing duties under § 303. Tariff Act of 1930, as amended, § 516(d), 19 U.S.C. § 1516(d) (1976 ed.). 8 Section 5 of the Tariff Act of July 24, 1897, 30 Stat. 205, provided in full: "That whenever any country, dependency, or colony shall pay or bestow, directly or indirectly, any bounty or grant upon the exportation of any article or merchandise from such country, dependency, or colony, and such article or merchandise is dutiable under the provisions of this Act, then upon the importation of any such article or merchandise into the United States, whether the same shall be imported directly from the country of production or otherwise, and whether such article or merchandise is imported in the same condition as when exported from the country of production or has been changed in condition by remanufacture or otherwise, there shall be levied and paid, in all such cases, in addition to the duties otherwise imposed by this Act, an additional duty equal to the net amount of such bounty or grant, however the same be paid or bestowed. The net amount of all such bounties or grants shall be from time to time ascertained, determined, and declared by the Secretary of the Treasury, who shall make all needful regulations for the identification of such articles and merchandise and for the assessment and collection of such additional duties." The current version of § 303 represents the fifth re- nactment of the 1897 provision without any changes relevant here. Tariff Act of 1909, § 6, 36 Stat. 85; Tariff Act of 1913, § IV(E), 38 Stat. 193; Tariff Act of 1922, § 303, 42 Stat. 935; Tariff Act of 1930, § 303, 46 Stat. 687; Trade Act of 1974, § 331(a), 88 Stat. 2049. 9 There is no dispute here regarding either the nonexcessive nature of the remission or the indirect nature of the tax. Moreover, although the Department did not so state in the notice of final determination, see n. 6, supra, petitioner does not dispute that the Department's decision in this case was based on its longstanding position that the nonexcessive remission of an indirect tax is not a bounty or grant. 10 See, e. g., T.D. 19729, 2 Synopsis of Decisions 157 (1898); T.D. 20039, 2 Synopsis of Decisions 534 (1898); T.D. 43634, 56 Treas.Dec. 342 (1929); T.D. 49355, 73 Treas.Dec. 107 (1938). 11 The proviso specified that "the importer of sugar produced in a foreign country, the Government of which grants such direct or indirect bounties, may be relieved from this additio al duty under such regulations as the Secretary of the Treasury may prescribe, in case said importer produces a certificate of said Government that no indirect bounty has been received upon said sugar in excess of the tax collected upon the beet or cane from which it was produced, and that no direct bounty has been or shall be paid . . . ." 28 Stat. 521 (emphasis added). 12 The figures of 38¢ and 27¢ per 100 pounds apparently represented the amount of direct bounty paid upon exportation. See, e. g., 30 Cong.Rec. 1722 (1897) (letter from Treasury Department). Petitioner argues that the Senate must have intended the term "bounty" to include nonexcessive remissions of indirect taxes, since Germany collected a tax on the output of sugar factories that was not remitted upon exportation and yet was not subtracted from the figures of 38¢ and 27¢ cited as the "bounties" paid by Germany. The sole evidence cited by petitioner to show that Germany in fact collected such a tax is an exhibit to the testimony of a single witness during hearings conducted by the House in 1896. See Tariff Hearings Before the House Committee on Ways and Means, 54th Cong., 2d Sess., 617-618 (1896-1897). We have been unable to find any references to this tax anywhere in the Senate debates; moreover, to the extent that anyone contemplated the existence of German taxes that were not remitted upon exportation, the assumption appears to have been that they would be deducted from the 38¢ and 27¢ figures in determining the net amount of the bounty to be countervailed. The following exchange between Senators Allison and Vest is illustrative: "Mr. VEST. What . . . is the amount of export bounty, taking out taxes, etc., granted by Germany? "Mr. ALLISON. . . . Of course it can not exceed three-eighths of a cent a pound—thirty-eight one-hundredths on refined sugar—nor can it exceed twenty-seven one-hundredths upon raw sugar. But it may be very much less." 30 Cong.Rec. 1721 (1897). We note in any event that the amount of the tax cited by petitioner was less than 2¢ per 100 pounds, see Tariff Hearings, supra, at 617, whereas the consumption tax—which concededly was remitted upon exportation and yet not added to the figures of 38 and 27¢—was in the vicinity of $2.16 per 100 pounds. 13 Article VI(3) of the GATT, adopted in 1947, 61 Stat. A24, provides that "[n]o product . . . imported into the territory of any other contracting party shall be subject to . . . countervailing duty by reason of the exemption of such product from . . . taxes borne by the like product when destined for consumption in the country of origin or exportation, or by reason of the refund of such . . . taxes." The Government does not contend that the GATT provision would supersede § 303 in the event of conflict between the two. Brief for United States 19 n. 11. 14 See, e. g., Marks & Malmgren, Negotiating Nontariff Distortions to Trade, 7 L. & Policy in Int'l Bus. 327, 351-355 (1975); The United States Submission on Border Tax Adjustments to Working Party No. 4 of the Council on Border Tax Adjustments, Organization for Economic Cooperation and Development (1966), reprinted in App. 93-116; Paper Submitted by John R. Petty, Assn't Sec'y of the Treasury, Twenty-First Annual Conference of the Canadian Tax Foundation (1968), reprinted in App. 117-138. Both the Secretary and GATT apparently consider remissions of direct taxes (e. g., income taxes) to be countervailable export subsidies. See Brief for United States 18 n. 10, 37-38; GATT, Basic Instruments and Selected Documents 186-187 (Supp.1961). 15 Petitioner also relies on language in G. S. Nicholas & Co. v. United States, 249 U.S. 34, 39 S.Ct. 218, 63 L.Ed. 461 (1919), suggesting that the countervailing-duty statute was intended to be read broadly. See id., at 39-41, 39 S.Ct., at 220. As petitioner concedes, however, the only question before the Court in that case was whether a direct bounty on exportation of liquor from Great Britain was a "bounty or grant" within the meaning of the statute, see Brief for Petitioner 16-17, and the Court did not address the question of whether nonexcessive remission of an indirect tax fell within the statute. 16 See Memorandum from the Secretary of the Treasury (1901), reprinted in App. 49-51; T.D. 20407, 2 Synopsis of Decisions 996, 997-998 (1898); T.D. 22814, 4 Treas.Dec. 184 (1901); Downs v. United States, 113 F. 144, 145 (CA4 1902). 17 In rejecting Downs' claim, both the United States Board of General Appraisers and the Fourth Circuit Court of Appeals identified the "bounty" as residing in the value of the certificates granted upon exportation. See T.D. 22984, 4 Treas.Dec. 405, 410-411, 413 (1901); Downs v. United States, supra, at 145. 18 The Court also noted that "[i]t is practically admitted in this case that a bounty equal to the value of [the] certificates is paid by the Russian government, and the main argument of the petitioner is addressed to the proposition that this bounty is paid, not upon exportation, but upon production." 187 U.S., at 512, 23 S.Ct., at 227. This latter argument was based on the fact that the 1897 statute covered only bounties on exportation and not those on production. In 1922, Congress amended the statute to cover bounties on production and manufacture as well as exportation. Tariff Act of 1922, supra, n. 8.

1112

437 U.S. 556 98 S.Ct. 2505 57 L.Ed.2d 428 EASTEX, INCORPORATED, Petitioner,v.NATIONAL LABOR RELATIONS BOARD. No. 77-453. Argued April 25, 1978. Decided June 22, 1978. Syllabus Employees of petitioner corporation sought to distribute a four-part union newsletter in nonworking areas of petitioner's plant during nonworking time. The first and fourth sections urged employees to support the union and extolled union solidarity. The second section encouraged employees to write their legislators to oppose incorporation of the state "right-to-work" statute into a revised state constitution. The third section criticized a Presidential veto of an increase in the federal minimum wage and urged employees to register to vote to "defeat our enemies and elect our friends." After representatives of petitioner refused to permit the requested distribution, the union filed as unfair labor practice charge with the National Labor Relations Board (NLRB), alleging that petitioner's refusal interfered with the employees' exercise of their rights under § 7 of the National Labor Relations Act (Act), which provides that "[e]mployees shall have the right . . . to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ," and thus violated § 8(a)(1). Following a hearing, at which petitioner contended that the second and third sections of the letter were not protected by § 7 because they did not relate to petitioner's association with the union, the NLRB ordered petitioner to cease and desist from the violation, having determined that both those sections of the newsletter came within the ambit of § 7's protection. The second section of the newsletter was held to be protected because union security is "central to the union concept of strength through solidarity" and "a mandatory subject of bargaining in other than right-to-work states," and the fact that Texas already has a "right-to-work" statute was held not to diminish employees' interest in the matter. The third section was held to be protected even though petitioner's employees were paid more than the vetoed minimum wage, on the ground that the "minimum wage inevitably influences wage levels derived from collective bargaining, even those far above the minimum," and that the petitioner's employees' concern "for the plight of other employees might gain support for them at some future time when they might have a dispute with their employer." The Court of Appeals enforced the NLRB's order, rejecting petitioner's contention that § 7's "mutual aid or protection" clause protects only concerted activity by employees that is directed at conditions that their employer has the authority or power to change or control, and that the second and third sections of the newsletter did not constitute such activity. The court concluded that "whatever is reasonably related to the employees' jobs or to their status or condition as employees in the plant may be the subject of such handouts as we treat of here, distributed on the plant premises in such a manner as not to interfere with the work . . . ," and that the material in the newsletter met that test. Held : 1. Distribution of the challenged second and third sections of the newsletter is protected under the "mutual aid or protection" clause of § 7. Pp. 563-570. (a) The Act's definition of "employee" in § 2(3) was intended to protect employees when they engage in otherwise proper concerted activities in support of employees of employers other than their own, and it has long been held that "mutual aid or protection" encompasses such activity. Pp. 564-565. (b) Employees do not lose their protection under the "mutual aid or protection" clause when they seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship, and the NLRB did not err in holding that distribution of the challenged parts of the newsletter was for he purpose of "mutual aid or protection." Pp. 565-570. 2. The NLRB did not err in holding that petitioner's employees may distribute the newsletter in nonworking areas of petitioner's property during nonworking time. The fact that the distribution is to take place on petitioner's property does not give rise to a countervailing interest that petitioner can assert outweighing the exercise of § 7 rights by its employees in that location. Under the circumstances of this case, the NLRB was not required to apply a rule different from the one it applied in Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372, to the effect that an employer may not prohibit his employees from distributing union literature (in that case organizational material) in nonworking areas of industrial property during nonworking time, absent a showing by the employer that a ban is necessary to maintain plant discipline or production. Here, as in Republic Aviation, petitioner's employees were "already rightfully on the employer's property," so that in the context of this case it is the employer's management interests rather than its property interests that primarily are implicated. Petitioner, however, made no attempt to show that its management interests would be prejudiced by distribution of the sections to which it objected, and any incremental intrusion on its property rights from their distribution together with the other sections would be minimal. In addition, viewed in context, the distribution was closely tied to vital concerns of the Act. Pp. 570-576. 5 Cir., 550 F.2d 198, affirmed. John B. Abercrombie, Houston, Tex., for petitioner. Richard A. Allen, for respondent. Mr. Justice POWELL delivered the opinion of the Court. 1 Employees of petitioner sought to distribute a union newsletter in nonworking areas of petitioner's property during nonworking time urging employees to support the union and discussing a proposal to incorporate the state "right-to-work" statute into the state constitution and a Presidential veto of an increase in the federal minimum wage. The newsletter also called on employees to take action to protect their interests as employees with respect to these two issues. The question presented is whether petitioner's refusal to allow the distribution violated § 8(a)(1) of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U.S.C. § 158(a)(1), by interfering with, restraining, or coercing employees' exercise of their right under § 7 of the Act, 29 U.S.C. § 157, to engage in "concerted activities for the purpose of . . . mutual aid or protection." 2 * Petitioner is a company that manufactures paper products in Silsbee, Tex. Since 1954, petitioner's production employees have been represented by Local 801 of the United Paperworkers International Union. It appears that many, although not all, of petitioner's approximately 800 production employees are members of Local 801. Since Texas is a "right-to-work" State by statute,1 Local 801 is barred from obtaining an agreement with petitioner requiring all production employees to become union members. 3 In March 1974, officers of Local 801, seeking to strengthen employee support for the union and perhaps recruit new members in anticipation of upcoming contract negotiations with petitioner, decided to distribute a union newsletter to petitioner's production employees.2 The newsletter was divided into four sections. The first and fourth sections urged employees to support and participate in the union and, more generally, extolled the benefits of union solidarity. The second section encouraged employees to write their legislators to oppose incorporation of the state "right-to-work" statute into a revised state constitution then under consideration, warning that incorporation would "weake[n] Unions and improv[e] the edge business has at the bargaining table. ' The third section noted that the President recently had vetoed a bill to increase the federal minimum wage from $1.60 to $2.00 per hour, compared this action to the increase of prices and profits in the oil industry under administration policies, and admonished: "As working men and women we must defeat our enemies and elect our friends. If you haven't registered to vote, please do so today."3 4 On March 26, 1974, Hugh Terry, an employee of petitioner and vice president of Local 801, asked Herbert George, petitioner's assistant personnel director, for permission to distribute the newsletter to employees in the "clock alley" that leads to petitioner's time clocks.4 George doubted whether management would allow employees to "hand out propaganda like that," but agreed to check with his superiors. Leonard Menius, petitioner's personnel director, confirmed that petitioner would not allow employees to distribute the newsletter in clock alley. A few days later George communicated this decision to Terry, but gave no reasons for it. 5 On April 22, 1974, Boyd Young, president of Local 801,5 together with Terry and another employee, asked George whether employees could distribute the newsletter in any nonworking areas of petitioner's property other than clock alley.6 After conferring again with Menius, George reported that employees would not be allowed to do so and that petitioner thought the union had other ways to communicate with employees. Local 801 then filed an unfair practice charge with the National Labor Relations Board (Board), alleging that petitioner's refusal to allow employees to distribute the newsletter in nonworking areas of petitioner's property during nonworking time interfered with, restrained, and coerced employees' exercise of their § 7 rights in violation of § 8(a)(1).7 6 At a hearing on the charge, Menius testified that he had no objection to the first and fourth sections of the newsletter. He had denied permission to distribute the newsletter because he "didn't see any way in which [the second and third sections were] related to our association with the Union." App. 19. The Administrative Law Judge held that although not all of the newsletter had immediate bearing on the relat onship between petitioner and Local 801, distribution of all its contents was protected under § 7 as concerted activity for the "mutual aid or protection" of employees. Because petitioner had presented no evidence of "special circumstances" to justify a ban on the distribution of protected matter by employees in nonworking areas during nonworking time, the Administrative Law Judge held that petitioner had violated § 8(a)(1) and ordered petitioner to cease and desist from the violation.8 The Board affirmed the Administrative Law Judge's rulings, findings, and conclusions, and adopted his recommended order. 215 N.L.R.B. 271 (1974). 7 The Court of Appeals enforced the order. 550 F.2d 198 (CA5 1977). It rejected petitioner's argument that the "mutual aid or protection" clause of § 7 protects only concerted activity by employees that is directed at conditions that their employer has the authority or power to change or control. Without expressing an opinion as to the full range of § 7 rights "when exercised off the employer's property," 550 F.2d, at 202, the court purported to balance those rights against the employer's property rights and concluded that "whatever is reasonably related to the employees' jobs or to their status or condition as employees in the plant may be the subject of such handouts as we treat of here, distributed on the plant premises in such a manner as not to interfere with the work . . . ." Id., at 203 (emphasis in original). The court further held that all of the material in the newsletter here met this test. Id., at 204-205.9 8 Because of apparent differences among the Courts of Appeals as to the scope of rights protected by the "mutual aid or protection" clause of § 7, see n. 17,infra, we granted certiorari. 434 U.S. 1045, 98 S.Ct. 888, 54 L.Ed.2d 795 (1978). We affirm. II 9 Two distinct questions are presented. The first is whether, apart from the location of the activity, distribution of the newsletter is the kind of concerted activity that is protected from employer interference by §§ 7 and 8(a)(1) of the National Labor Relations Act. If it is, then the second question is whether the fact that the activity takes place on petitioner's property gives rise to a countervailing interest that outweighs the exercise of § 7 rights in that location. See Hudgens v. NLRB, 424 U.S. 507, 521-523, 96 S.Ct. 1029, 1037-1038, 47 L.Ed.2d 196 (1976); Central Hardware Co. v. NLRB, 407 U.S. 539, 542-545, 92 S.Ct. 2238, 2240-2242, 33 L.Ed.2d 122 (19 2); NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1956); Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797-798, 65 S.Ct. 982, 985, 89 L.Ed. 1372 (1945). We address these questions in turn. A. 10 Section 7 provides that "[e]mployees shall have the right . . . to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ."10 Petitioner contends that the activity here is not within the "mutual aid or protection" language because it does not relate to a "specific dispute" between employees and their own employer "over an issue which the employer has the right or power to affect." Brief for Petitioner 13. In support of its position, petitioner asserts that the term "employees" in § 7 refers only to employees of a particular employer, so that only activity by employees on behalf of themselves or other employees of the same employer is protected. Id., at 18, 24. Petitioner also argues that the term "collective bargaining" in § 7 "indicates a direct bargaining relationship whereas 'other mutual aid or protection' must refer to activities of a similar nature . . . ." Id., at 24. Thus, in petitioner's view, under § 7 "the employee is only protected for activity within the scope of the employment relationship." Id., at 13. Petitioner rejects the idea that § 7 might protect any activity that could be characterized as "political," and suggests that the discharge of an employee who engages in any such activity would not violate the Act.11 11 We believe that petitioner misconceives the reach of the "mutual aid or protection" clause. The "employees" who may engage in concerted activities for "mutual aid or protection" are defined by § 2(3) of the Act, 29 U.S.C. § 152(3), to "include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise . . . ." This definition was intended to protect employees when they engage in otherwise proper concerted activities in support of employees of employers other than their own.12 In recognition of this intent, the Board and the courts long have held that the "mutual aid or protection" clause encompasses such activity.13 Petitioner's argument on this point ignores the language of the Act and its settled construction. 12 We also find no warrant for petitioner's view that employees lose their protection under the "mutual aid or protection" clause when they seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship. The 74th Congress knew well enough that labor's cause often is advanced on fronts other than collective bargaining and grievance settlement within the immediate employment context. It recognized this fact by choosing, as the language of § 7 makes clear, to protect concerted activities for the somewhat broader purpose of "mutual aid or protection" as well as for the narrower purposes of "self-organization" and "collective bargaining."14 Thus, it has been held that the "mutual aid or protection" clause protects employees from retaliation by their employers when they seek to improve working conditions through resort to administrative and judicial forums,15 and that employees' appeals to legislators to protect their interests as employees are within the scope of this clause.16 To hold that activity of this nature is entirely unprotected—irrespective of location or the means employed—would leave employees open to retaliation for much legitimate activity that could improve their lot as employees. As this could "frustrate the policy of the Act to protect the right of workers to act together to better their working conditions," NLRB v. Washington Aluminum Co., 370 U.S. 9, 14, 82 S.Ct. 1099, 1102, 8 L.Ed.2d 298 (1962), we do not think that Congress could have intended the protection of § 7 to be as narrow as petitioner insists.17 13 It is true, of course, that some concerted activity bears a less immediate relationship to employees' interests as employees than other such activity. We may assume that at some point the relationship becomes so attenuated that an activity cannot fairly be deemed to come within the "mutual aid or protection" clause. It is neither necessary nor appropriate, however, for us to attempt to delineate precisely the boundaries of the "mutual aid or protection" clause. That task is for the Board to perform in the first instance as it considers the wide variety of cases that come before it.18 Republic Aviation Corp. v. NLRB, 324 U.S., at 798, 65 S.Ct., at 985; Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271 (1941). To decide this case, it is enough to determine whether the Board erred in holding that distribution of the second and third sections of the newsletter is for the purpose of "mutual aid or protection." The Board determined that distribution of the second section, urging employees to write their legislators to oppose incorporation of the state "right-to-work" statute into a revised state constitution, was protected because union security is "central to the union concept of strength through solidarity" and "a mandatory subject of bargaining in other than right-to-work states." 215 N.L.R.B., at 274. The newsletter warned that incorporation could affect employees adversely "by weakening Unions and improving the edge business has at the bargaining table." The fact that Texas already has a "right-to-work" statute does not render employees' interest in this matter any less strong, for, as the Court of Appeals noted, it is "one thing to face a statutory scheme which is open to legislative modification or repeal" and "quite another thing to face the prospect that such a scheme will be frozen in a concrete constitutional mandate." 550 F.2d, at 205. We cannot say that the Board erred in holding that this section of the newsletter bears such a relation to employees' interests as to come within the guarantee of the "mutual aid or protection" clause. See cases cited in n. 16, supra. 14 The Board held that distribution of the third section, criticizing a Presidential veto of an increase in the federal minimum wage and urging employees to register to vote to "defe t our enemies and elect our friends," was protected despite the fact that petitioner's employees were paid more than the vetoed minimum wage. It reasoned that the "minimum wage inevitably influences wage levels derived from collective bargaining, even those far above the minimum," and that "concern by [petitioner's] employees for the plight of other employees might gain support for them at some future time when they might have a dispute with their employer." 215 N.L.R.B., at 274 (internal quotation marks omitted). We think that the Board acted within the range of its discretion in so holding. Few topics are of such immediate concern to employees as the level of their wages. The Board was entitled to note the widely recognized impact that a rise in the minimum wage may have on the level of negotiated wages generally,19 a phenomenon that would not have been lost on petitioner's employees. The union's call, in the circumstances of this case, for these employees to back persons who support an increase in the minimum wage, and to oppose those who oppose it, fairly is characterized as concerted activity for the "mutual aid or protection" of petitioner's employees and of employees generally. 15 In sum, we hold that distribution of both the second and the third sections of the newsletter is protected under the "mutual aid or protection" clause of § 7.20 B 16 The question that remains is whether the Board erred in holding that petitioner's employees may distribute the newsletter in nonworking areas of petitioner's property during nonworking time. Consideration of this issue must begin with the Court's decisions in Republic Aviation Corp. v. NLRB, supra, and NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956). In Republic Aviation the Court upheld the Board's ruling that an employer may not prohibit its employees from distributing union organizational literature in nonworking areas of its industrial property during nonworking time, absent a showing by the employer that a ban is necessary to maintain plant discipline or production. This ruling obtained even though the employees had not shown that distribution of the employer's property would be ineffective. 324 U.S., at 798-799, 801, 65 S.Ct., at 985-986, 987. In the Court's view, the Board had reached an acceptable "adjustment between the undisputed right of self-organization assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments." Id., 324 U.S., at 797-798,21 65 S.Ct., at 985. 17 In Babcock & Wilcox, on the other hand, nonemployees sought to enter an employer's property to distribute union organizational literature. The Board applied the rule of Republic Aviation in this situation, but the Court held that there is a distinction "of substance" between "rules of law applicable to employees and those applicable to nonemployees." 351 U.S., at 113, 76 S.Ct., at 684. The difference was that the nonemployees in Babcock & Wilcox sought to trespass on the employer's property, whereas the employees in Republic Aviation did not. Striking a balance between § 7 organizational rights and an employer's right to keep strangers from entering on its property, the Court held that the employer in Babcock & Wilcox was entitled to prevent "nonemployee distribution of union literature [on its property] if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message . . . ." Id., at 112, 76 S.Ct., at 684. The Court recently has emphasized the distinction between the two cases: "A wholly different balance was struck when the organizational activity was carried on by employees already rightfully on the employer's property, since the employer's management interests rather than his property interests were there involved." Hudgens v. NLRB, 424 U.S., at 521-522, n.10, 96 S.Ct., at 1037; see also Central Hardware Co. v. NLRB, 407 U.S., at 543-545, 92 S.Ct., at 2241-2242. 18 It is apparent that the instant case resembles Republic Aviation rather closely. Here, as there, employees sought to distribute literature in nonworking areas of their employer's industrial property during nonworking time. Here, as there, the employer has not attempted to show that distribution would interfere with plant discipline or production. And here, as there, distribution of the newsletter clearly would be protected by § 7 against employer discipline if it took place off the employer's property. The only possible ground of distinction is that part of the newsletter in this case does not address purely organizational matters, but rather concerns other activity protected by § 7. The question, then, is whether this difference required the Board to apply a different rule here than it applied in Republic Aviation. 19 Petitioner contends that the Board must distinguish among distributions of protected matter by employees on an employer's property on the basis of the content of each distribution. Echoing its earlier argument, petitioner urges that the Republic Aviation rule should not be applied if a distribution "does not involve a request for any action on the part of the employer, or does not concern a matter over which the employer has any degree of control . . .." Brief for Petitioner 28. In petitioner's view, distribution of any other matter protected by § 7 would be an "unnecessary intrusio[n] on the employer's property rights," id., at 29, in the absence of a showing by employees that no alternative channels of communication with fellow employees are available. 20 We hold that the Board was not required to adopt this view in the case at hand. In the first place, petitioner's reliance on its property right is largely misplaced. Here, as in Republic Aviation, petitioner's employees are "already rightfully on the employer's property," so that in the context of this case it is the "employer's management interests rather than [its] property interests" that primarily are implicated. Hudgens, supra, 424 U.S., at 521-522, n.10, 96 S.Ct., at 1037 n.10. As already noted, petitioner made no attempt to show that its management interests would be prejudiced in any way by the exercise of § 7 rights proposed by its employees here. Even if the mere distribution by employees of material protected by § 7 can be said to intrude on petitioner's property rights in any meaningful sense, the degree of intrusion does not va y with the content of the material. Petitioner's only cognizable property right in this respect is in preventing employees from bringing literature onto its property and distributing it there—not in choosing which distributions protected by § 7 it wishes to suppress.22 21 On the other side of the balance, it may be argued that the employees' interest in distributing literature that deals with matters affecting them as employees, but not with self-organization or collective bargaining, is so removed from the central concerns of the Act as to justify application of a different rule than in Republic Aviation. Although such an argument may have force in some circumstances, see Hudgens, supra, 424 U.S., at 522, 96 S.Ct., at 1037, the Board to date generally has chosen not to engage in such refinement of its rules regarding the distribution of literature by employees during nonworking time in nonworking areas of their employers' property. We are not prepared to say in this case that the Board erred in the view it took. 22 It is apparent that the complexity of the Board's rules and the difficulty of the Board's task might be compounded greatly if it were required to distinguish not only between literature that is within and without the protection of § 7, but also among subcategories of literature within that protection. In addition, whatever the strength of the employees' § 7 interest in distributing particular literature, the Board is entitled to view the intrusion by employees on the property rights of their employer as quite limited in this context as long as the employer's management interests are adequately protected. The Board also properly may take into account the fact that the plant is a particularly appropriate place for the distribution of § 7 material, because it "is the one place where [employees] clearly share common interests and where they traditionally seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees." Gale Products, 142 N.L.R.B. 1246, 1249 (1963). 23 We need not go so far in this case, however, as to hold that the Republic Aviation rule properly is applied to every in-plant distribution of literature that falls within the protective ambit of § 7. This is a new area for the Board and the courts which has not yet received mature consideration.23 It may be that the "nature of the problem, as revealed by unfolding variant situations," requires "an evolutionary process for its rational response, not a quick, definitive formula as a comprehensive answer." Local 761, Electrical Workers v. NLRB, 366 U.S. 667, 674, 81 S.Ct. 1285, 1290, 6 L.Ed.2d 592 (1961). For this reason, we confine our holding to the facts of this case. 24 Petitioner concedes that its employees were entitled to distribute a substantial portion of his newsletter on its property. In addition, as we have held above, the sections to which petitioner objected concern activity which petitioner, in the absence of a countervailing interest of its own, is not entitled to suppress. Yet petitioner made no attempt to show that its management interests would be prejudiced in any manner by distribution of these sections, and in our view any incremental intrusion on petitioner's property rights from their distribution together with the other sections would be minimal. Moreover, it is undisputed that the union undertook the distribution in order to boost its support and improve its bargaining position in upcoming contract negotiations with petitioner. Thus, viewed in context, the distribution was closely tied to vital concerns of the Act.24 In these circumstances, we hold that the Board did not err in applying the Republic Aviation rule to the facts of this case. The judgment of the Court of Appeals therefore is 25 Affirmed. APPENDIX TO OPINION OF THE COURT NEWS BULLETIN TO LOCAL 801 MEMBERS FROM BOYD YOUNG—PRESIDENT WE NEED YOU 26 As a member, we need you to help build the Union through your support and understanding. Too often members become disinterested and look upon their Union as being something separate from themselves. Nothing could be further from the truth. 27 This Union or any Union will only be as good as the members make it. The policies and practices of this Union are made by the membership—the active membership. If this Union has ever missed its target it may be because not enough members made their views known where the final decisions are made—The Union Meeting. 28 It would be impossible to satisfy everyone with the decisions that are made but the active member has the opportunity to bring the majority around to his way of thinking. This is how a democratic organization works and it's the best system around. 29 Through participation you can make your voice felt not only in this Local but throughout the International Union. 30 A PHONY LABEL—"right to work" 31 Wages are determined at the bargaining table and the stronger the Union, the better the opportunity for improvements. The "right to work" law is simply an attempt to weaken the strength of Unions. The misleading title of "right to work" cannot guarantee anyone a job. It simply weakens the negotiating power of Unions by outlawing provisions in contracts for Union shops, agency shops, and modified Union shops. The e laws do not improve wages or working conditions but just protect free riders. Free riders are people who take all the benefits of Unions without paying dues. They ride on the dues that members pay to build an organization to protect their rights and improve their way of life. At this time there is a very well organized and financed attempt to place the "right to work" law in our new state constitution. This drive is supported and financed by big business, namely, the National Right-To-Work Committee and the National Chamber of Commerce. If their attempt is successful, it will more than pay for itself by weakening Unions and improving the edge business has at the bargaining table. States that have no "right-to-work" law consistently have higher wages and better working conditions. Texas is well known for its weak laws concerning the working class and the "right-to-work" law would only add insult to injury. If you fail to take action against the "right-to-work" law it may well show up in wages negotiated in the future. I urge every member to write their state congressman and senator in protest of the "right-to-work" law being incorporated into the state constitution. Write your state representative and state senator and let the delegate know how you feel. POLITICS AND INFLATION 32 The Minimum Wage Bill, HR 7935, was vetoed by President Nixon. The President termed the bill as inflationary. The bill would raise the present $1.60 to $2.00 per hour for most covered workers. 33 It seems almost unbelievable that the President could term $2.00 per hour as inflationary and at the same time remain silent about oil companies profits ranging from 56% to 280%. 34 It also seems disturbing, that after the price of gasoline has increased to over 50 cents a gallon, that the fuel crisis is beginning to disappear. If the price of gasoline ever reaches 70 cents a gallon you probably couldn't find a closed filling station or empty pump in the Northern Hemisphere. 35 Congress is now pr[o]ceeding with a second minimum wage bill that hopefully the President will sign into law. At $1.60 per hour you could work 40 hours a week, 52 weeks a year and never earn enough money to support a family. 36 As working men and women we must defeat our enemies and elect our friends. If you haven't registered to vote, please do so today. FOOD FOR THOUGHT 37 In Union there is strength, justice, and moderation; 38 In disunion, nothing but an alternating humility and insolence. COMING TOGETHER WAS A BEGINNING STAYING TOGETHER IS PROGRESS WORKING TOGETHER MEANS SUCCESS 39 THE PERSON WHO STANDS NEUTRAL, STANDS FOR NOTHING! 40 Mr. Justice WHITE, concurring. 41 As I understand the record in this case, the only issue before the Administrative Law Judge and before the Board was whether the activity engaged in here by the employees was the kind of activity protected by § 7 of the National Labor Relations Act. The Administrative Law Judge held that the circulars were related to matters encompassed by § 7 and noted that there had been no attempt or evidence to show that even though the distributions were § 7 activity, there were nevertheless circumstances that permitted the employer to forbid the distributions on his property. The Board adopted the report of the Administrative Law Judge. 42 I agree that the employees here were engaged in activity protected by § 7, at least in the sense that the employer could not discharge employees for propagandizing their fellow workers with materials concerning minimum wages and right-towork laws, so long as the distribution takes place off the employer's property. I agree further that under current law and the facts and claims in this record, the distributions could take place on the employer's property. Accordingly, the Board was entitled to have its order enforced and I join the judgment and opinion of the Court. 43 In doing so, I should say that it is not easy to explain why an employer need permit his property to be used for distributions about subjects unrelated to his relationship with his employees simply because it is convenient for the latter to use his property in this manner and simply because there is no interference with "management interests." Ownership of property normally confers the right to control the use of that property. Here there was no finding by the Board that the literature sought to be distributed was connected with the bargaining relationship; and I doubt that federal law requires the employer always to permit his property to be used for solicitations and distributions having § 7 protection, even by and among employees in nonworking areas and during nonworking times. Such distributions might concern goals and ends about which his work force, considered as a whole, as well as the public, may be deeply divided, with which he may have no sympathy whatsoever, or in connection with which he would not care to have it inferred that he supports one side or the other. All of these, if substantiated by the record, would appear to be substantial factors to be weighed in the balance when determining whether the employer has violated the Labor Act's strictures concerning his relationship with his employees. 44 However this may be, on the record before us, I am content to affirm the judgment of the Court of Appeals. 45 Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting. 46 It is not necessary to determine the scope of the "mutual aid or protection" language of § 7 of the National Labor Relations Act to conclude that Congress never intended to require the opening of private property to the sort of political advocacy involved in this case. Petitioner's right as a property owner to prescribe the conditions under which strangers may enter its property is fully recognized under Texas law. " 'A licensee who goes beyond the rights and privileges granted by the license becomes a trespasser.' " Burton Construction & Shipbuilding Co. v. Broussard, 154 Tex. 50, 58, 273 S.W.2d 598, 603 (1954) (citation omitted). See also Brown v. Dellinger, 355 S.W.2d 742 (Tex.Civ.App.1962); 56 Tex.Jur.2d, Trespass § 4 (1964). Thus, the employees' effort to distribute their leaflet in defiance of petitioner's wishes would clearly be a trespass infringing upon petitioner's property right. There is no indication that Texas takes so narrow a view of petitioner's rights that it may fairly be said that its "only cognizable property right in this respect is in preventing employees from bringing literature onto its property and distributing it there." Ante, at 573. So far as appears, a Texas property owner may admit certain leaflets onto his property and exclude others, as it pleases him. The Court can only mean that the Board need not take cognizance of any greater property right because the Congress has clearly and constitutionally said so. 47 From its earliest cases construing the National Labor Relations Act the Court has recognized the weight of an employer's property rights, rights which are explicitly protected from federal interference by the Fifth Amendment to the Constitution. The Court has not been quick to conclude in a given instance that Congress has authorized the displacement of those rights by the federally created rights of the employees. In NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627 (1939), construing another section of the Act, this Court dealt with the Board's efforts to compel the reinstatement of employees who had been discharged after violating their employer's property rights by engaging in a sitdown strike. Mr. Chief Justice Hughes wrote for the Court: 48 "We are unable to conclude that Congress intended to compel employers to retain persons in their employ regardless of their unlawful conduct,—to invest those who go on strike with an immunity from discharge for acts of trespass or violence against the employer's property, which they would not have enjoyed had they remained at work. Apart from the question of the constitutional validity of an enactment of that sort, it is enough to say that such legislative intention should be found in some definite and unmistakable expression. We find no such expression in the cited provision." Id., at 255, 59 S.Ct., at 496. 49 See also id., at 265, 59 S.Ct., at 500 (Stone, J., concurring in part). An employer's property rights must give way only where necessary to effectuate the central purposes of the Act: "to safeguard the rights of self-organization and collective bargaining, and thus by the promotion of industrial peace to remove obstructions to the free flow of commerce as defined in the Act." Id., at 257, 59 S.Ct., at 497. 50 Those rights of self-organization were again recognized six years later in Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). There, the Court held that Congress had authorized the Board to displace the property rights of employers where necessary to accommodate the rights of employees to distribute union organizational literature and to wear union insignia. In NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), the Court recognized that nonemployees could also invoke this right to solicit union membership, but it held that the Board's authority to displace the employer's property rights in such circumstances was extremely limited.1 Later, the Court in Central Hardware Co. v. NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972), explained the limited nature of the intrusion upon property rights permitted by Babcock : 51 "The principle of Babcock is limited to this accommodation between organization rights and property rights. This principle requires a 'yielding' of property rights only in the context of an organization campaign. Moreover, the allowed intrusion on property rights is limited to that necessary to facilitate the exercise of employees' § 7 rights. After the requisite need for access to the employer's property has been shown, the access is limited to (i) union organizers; (ii) prescribed nonworking areas of the employer's premises; and (iii) the duration of organization activity. In short, the principle of accommodation announced in Babcock is limited to labor organization campaigns and the 'yielding' of property rights it may require is both temporary and minimal." 407 U.S., at 544-545,2 92 S.Ct., at 2242. 52 The Court today cites no case in which it has ever held that anyone, whether an employee or a nonemployee, has a protected right to engage in anything other than organizational activity on an employer's property. The simple question before us is whether Congress has authorized the Board to displace an employer's right to prevent the distribution on his property of political material concerning matters over which he has no control.3 In eschewing any analysis of this question, in deference to the supposed expertise of the Board, the Court permits a " 'yielding' of property rights" which is certainly not "temporary"; and I cannot conclude that the deprivation of such a right of property can be dismissed as "minimal." It may be that Congress has power under the Commerce Clause to require an employer to open his property to such political advocacy, but, if Congress intended to do so, "such a legislative intention should be found in some definite and unmistakable expression." Fansteel, 306 U.S., at 255, 59 S.Ct., at 496. Finding no such expression in the Act, I would not permit the Board to balance away petitioner's right to exclude political literature from its property. 53 I would reverse the judgment of the Court of Appeals. 1 Tex.Rev.Civ.Stat.Ann., Art. 5154g, § 1; Art. 5207a, § 2 (Vernon 1971). 2 The president of Local 801 testified: "We were going into negotiations, and . . . we was [sic ] trying to reorganize our group into a stronger group. We were trying to get members, people that were working there who were non-members, and try to motivate or strengthen the conviction of our members, and it was to organize a little." App. 11. 3 The newsletter is reprinted in full as an appendix to this opinion. 4 The Administrative Law Judge described "clock alley" as "a passageway 6 or 7 feet wide, flanked on either side by administrative offices. In addition to time clocks, the area contains an employee bulletin board and benches and chairs for those waiting to transact business in the offices. Clock alley is physically discrete from the production areas of the plant." 215 N.L.R.B. 271, 273 n. 7 (1974). 5 Young, a longtime employee of petitioner, was on leave to serve as president of Local 801. 6 Young testified that he had asked "permission for employees of the Company to be allowed to distribute this on non-working hours, on non-production areas, and specifically outside the clock alley; and if that area posed a problem, we would be willing to move to any area convenient to the Company, out on the end of the walk or guardhouse or parking lot, that we would only hand it out to employees leaving the plant, and where it wouldn't cause a litter problem in the plant." App. 8-9. The Administrative Law Judge credited Young's testimony that the request was only for employees to distribute the newsletter. 215 N.L.R.B., at 273 n. 9. 7 Section 8(a)(1) makes it an unfair labor practice "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in" § 7 of the Act. 8 Because no evidence of "special circumstances" had been presented, the administrative law judge did not consider whether alternative channels of communication were available to Local 801. 215 N.L.R.B., at 275 n. 13. In the alternative, the judge held that even if distribution of the second and third sections of the newsletter was not protected by § 7, distribution of the newsletter as a whole was protected. Id., at 274, relying on Samsonite Corp., 206 N.L.R.B. 343 (1973). The Administrative Law Judge also held that petitioner maintained an overbroad no-solicitation rule. 215 N.L.R.B., at 272. Petitioner did not rely on this rule in refusing to allow distribution of the newsletter, see id., at 272 n. 4, and its validity was not an issue in the Court of Appeals, see 550 F.2d 198, 201 n. 3 (CA5 1977). That rule is not before us. See Brief for Petitioner 5 n. 2. 9 The court went on to disapprove the alternative ground for the Board's decision, see n. 8, supra, stating that "the presence of some § 7 protected material will not rescue that which is significantly not protected." 550 F.2d, at 205. We do not find it necessary to express an opinion as to the correctness of this statement. In an opinion denying rehearing and rehearing en banc, the court reaffirmed that it had balanced the employer's and employees' rights, and it deleted two references in its first opinion to the First Amendment. 556 F.2d 1280 (CA5 1977). 10 Section 7, as amended, as set forth in 29 U.S.C. § 157, states in full: "Employees shall have the right to self-organize, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title [29]." 11 See Tr. of Oral Arg. 17: "QUESTION: [Suppose the] Union is banding together and they all want to oppose right-to-work laws, and they pass out literature out on the public street; and the employer says, 'I just don't like you fellows getting into this kind of business, I'm going to fire you.' "Now, is that an unfair labor practice? "MR. ABERCROMBIE: Your Honor, we would submit that it was not, that political activity is not protected under Section 7." 12 See Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 191-192, 61 S.Ct. 845, 851-852, 85 L.Ed. 1271 (1941); S.Rep.No.573, 74th Cong., 1st Sess., 6 (1935); H.R.Rep.No.1147, 74th Cong., 1st Sess., 9-10 (1935). 13 E. g., Fort Wayne Corrugated Paper Co. v. NLRB, 111 F.2d 869, 874 (CA7 1940), enf'g Cayuga Linen & Cotten Mills, Inc., 11 N.L.R.B. 1, 4-5 (1939) (right to assist in organizing another employer's employees); NLRB v. J. G. oswell Co., 136 F.2d 585, 595 (CA9 1943), enf'g 35 N.L.R.B. 968 (1941) (right to express sympathy for striking employees of another employer); Redwing Carriers, Inc., 137 N.L.R.B. 1545, 1546-1547 (1962), enf'd sub nom. Teamsters v. NLRB, 117 U.S.App.D.C. 84, 325 F.2d 1011 (1963), cert. denied, 377 U.S. 905, 84 S.Ct. 1165, 12 L.Ed.2d 176 (1964) (right to honor picket line of another employer's employees); NLRB v. Alamo Express Co., 430 F.2d 1032, 1036 (CA5 1970), cert. denied, 400 U.S. 1021, 91 S.Ct. 584, 27 L.Ed.2d 633 (1971), enf'g 170 N.L.R.B. 315 (1968) (accord); Washington State Service Employees, 188 N.L.R.B. 957, 959 (1971) (right to demonstrate in support of another employer's employees); Yellow Cab, Inc., 210 N.L.R.B. 568, 569 (1974) (right to distribute literature in support of another employer's employees). We express no opinion, however, as to the correctness of the particular balance struck between employees' exercise of § 7 rights and employers' legitimate interests in any of the above-cited cases. 14 Congress modeled the language of § 7 after that found in § 2 of the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. § 102, which declares that it is the public policy of the United States that workers "shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of . . . representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ." See S.Rep.No.573, 74th Cong., 1st Sess., 9 (1935); H.R.Rep.No.1147, 74th Cong., 1st Sess., 15 (1935). This section of the Norris-LaGuardia Act expresses Congress' recognition of the "right of wage earners to organize and to act jointly in questions affecting wages, conditions of labor, and the welfare of labor generally . . . ." S.Rep.No.163, 72d Cong., 1st Sess., 9 (1932) (emphasis supplied). Similar language is found in § 7(a)(1) of the National Industrial Recovery Act of 1933, 48 Stat. 198; § 1 of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C. § 151 (declaration of policy); and § 2(a) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U.S.C. § 401(a) (findings, purposes, and policy). 15 E. g., Walls Mfg. Co., 137 N.L. .B. 1317 (1962), enf'd, 116 U.S.App.D.C. 140, 321 F.2d 753, cert. denied, 375 U.S. 923, 84 S.Ct. 265, 11 L.Ed.2d 166 (1963); Socony Mobil Oil Co., 153 N.L.R.B. 1244 (1965), enf'd, 357 F.2d 662 (CA2 1966); Altex Ready Mixed Concrete Corp. v. NLRB, 542 F.2d 295, 297 (CA5 1976), enf'g 223 N.L.R.B. 696 (1976); Wray Electric Contracting, Inc., 210 N.L.R.B. 757 (1974); Alleluia Cushion Co., 221 N.L.R.B. 999 (1975); King Soopers, Inc., 222 N.L.R.B. 1011 (1976); Triangle Tool & Engineering, Inc., 226 N.L.R.B. 1354 (1976). We do not address here the question of what may constitute "concerted" activities in this context. Cf. NLRB v. Weingarten, Inc., 420 U.S. 251, 260-261, 95 S.Ct. 959, 965, 43 L.Ed.2d 171 (1975). 16 Bethlehem Shipbuilding Corp. v. NLRB, 114 F.2d 930, 937 (CA1 1940), dismissed on motion of petitioner, 312 U.S. 710, 61 S.Ct. 448, 85 L.Ed. 1141 (1941), enf'g 11 N.L.R.B. 105 (1939); NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 130 F.2d 503, 506 (CA2 1942) (dicta), enf'g 33 N.L.R.B. 1170 (1941); Kaiser Engineers v. NLRB, 538 F.2d 1379, 1384-1385 (CA9 1976), enf'g 213 N.L.R.B. 752 (1974); cf. Machinists v. Street, 367 U.S. 740, 800-801, 812-816, 81 S.Ct. 1784, 1815, 1821-1823, 6 L.Ed.2d 1141 (1961) (Frankfurter, J., dissenting). Other laws, however, may place limits on concerted activity in the legislative and political spheres. See United States v. CIO, 335 U.S. 106, 68 S.Ct. 1349, 92 L.Ed. 1849 (1948); United States v. Auto Workers, 352 U.S. 567, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957); Street, supra; Railway Clerks v. Allen, 373 U.S. 113, 83 S.Ct. 1158, 10 L.Ed.2d 235 (1963); Pipefitters v. United States, 407 U.S. 385, 92 S.Ct. 2247, 33 L.Ed.2d 11 (1972); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). 17 Petitioner relies upon several cases said to construe § 7 more narrowly than do we. NLRB v. Leslie Metal Arts Co., 509 F.2d 811 (CA6 1975), and Shelly & Anderson Furniture Mfg. Co. v. NLRB, 497 F.2d 1200 (CA9 1974), both quote the same treatise for the proposition that to be protected under § 7, concerted activity must seek "a specific remedy" for a "work-related complaint or grievance." 509 F.2d, at 813, and 497 F.2d, at 1202-1203, quoting 18B T. Kheel, Labor Law § 10.02[3], pp. 10-21 (1973). It was unnecessary in those cases to decide whether the protection of § 7 went beyond the treatise's formulation, for the activity in both cases was held to be protected. Moreover, in stating its "rule," the treatise relied upon takes no note of the cases cited in nn. 13, 15, and 16, supra. Cf. R. Gorman, Labor Law 296-302 (1976). The Courts of Appeals for the Sixth and Ninth Circuits themselves have taken a broader view of the "mutual aid or protection" clause than the reference to the treatise in the above-cited cases would seem to suggest. See, e. g., Kellogg Co. v. NLRB, 457 F.2d 519, 522-523 (CA6 1972), and cases there cited; Kaiser Engineers v. NLRB, supra, 538 F.2d, at 1384-1385. Similarly, although the Court of Appeals for the Fourth Circuit stated in NLRB v. Bretz Fuel Co., 210 F.2d 392 (1954), that "concerted activity is protected only where such activity is intimately connected with the employees' immediate employment," id., at 396, the holding in that case turned more on the fact that the activity there consisted of a wildcat strike in violation of a collective-bargaining agreement than on a narrow view of the "mutual aid or protection" clause. See id., at 397-398. This leaves only G&W Electric Specialty Co. v. NLRB, 360 F.2d 873 (CA7 1966), which refused to enforce a Board order because the concerted activity there—circulation of a petition concerning management of an employee-run credit union—"involved no request for any action upon the part of the Company and did not concern a matter over which the Company had control." Id., at 876. G&W Electric cites no authority for its narrowing of § 7, and it ignores a § bstantial weight of authority to the contrary, including the Seventh Circuit's own prior holding in Fort Wayne Corrugated Paper Co. v. NLRB, 111 F.2d, at 874. See n. 13, supra. We therefore do not view any of these cases as persuasive authority for petitioner's position. 18 See Ford Motor Co., 221 N.L.R.B. 663, 666 (1975), enf'd, 546 F.2d 418 (CA3 1976) (holding distribution on employer's premises of a "purely political tract" unprotected even though "the election of any political candidate may have an ultimate effect on employment conditions"); cf. Ford Motor Co. (Rouge Complex), 233 N.L.R.B. 698, 705 (1977) (decision of Administrative Law Judge) (concession of General Counsel that distributions on employer's premises of literature urging participation in Revolutionary Communist Party celebration, and of Party's newspaper, were unprotected). The Board has not yet made clear whether it considers distributions like those in the above-cited cases to be unprotected altogether, or only on the employer's premises. In addition, even when concerted activity comes within the scope of the "mutual aid or protection" clause, the forms such activity permissibly may take may well depend on the object of the activity. "The argument that the employer's lack of interest or control affords a legitimate basis for holding that a subject does not come within 'mutual aid or protection' is unconvincing. The argument that economic pressure should be unprotected in such cases is more convincing." Getman, The Protection of Economic Pressure by Section 7 of the National Labor Relations Act, 115 U.Pa.L.Rev. 1195, 1221 (1967). 19 See N. Chamberlain, Labor 435-437 (1958); L. Reynolds, Labor Economics and Labor Relations 272 (5th ed. 1970). 20 Petitioner argues that the "right to work" and minimum wage issues are "political," and that advancing a union's political views is not protected by § 7. As almost every issue can be viewed by some as political, the clear purpose of the "mutual aid or protection" clause would be frustrated if the mere characterization of conduct or speech removed it from the protection of the Act. See cases cited in n. 16, supra. Moreover, what may be viewed as political in one context can be viewed quite differently in another. There may well be types of conduct or speech that are so purely political or so remotely connected to the concerns of employees as employees as to be beyond the protection of the clause. But this is a determination that should be left for case-by-case consideration. Cf. cases cited in n. 18, supra. 21 In Republic Aviation the Court also upheld Board rulings that employees may solicit other employees to join a union on the employer's property during nonworking time, and may wear union insignia on the employer's property. The Board since has distinguished between distributions of literature and oral solicitation, holding that the latter but not the former may take place in working areas during nonworking time. Stoddard-Quirk Mfg. Co., 138 N.L. .B. 615 (1962). 22 In addition, we doubt whether the test proposed by petitioner for the protection of its property rights can be squared with Republic Aviation itself, for the organizational literature in that case did not "involve a request for any action on the part of the employer, or . . . concern a matter over which the employer [had] any degree of control." To be sure, if the material distributed on the premises of the employer were inflammatory to the point of threatening disorder or other interruption of the normal functioning of the business, the exception noted in Republic Aviation with respect to interference with discipline or production would be fully applicable. See Procter & Gamble Mfg. Co., 160 N.L.R.B. 334, 395 (1966). 23 In addition to the instant case, the Board has extended the rule of Republic Aviation to a limited extent to encompass nonorganizational literature complaining about an incumbent union's leadership or bargaining position. Samsonite Corp., 206 N.L.R.B. 343 (1973); McDonnell Douglas Corp., 210 N.L.R.B. 280 (1974); General Motors Corp., 212 N.L.R.B. 133 (1974); The Singer Co., 220 N.L.R.B. 1179 (1975); Ford Motor Co., 221 N.L.R.B. 663 (1 75), enf'd, 546 F.2d 418 (CA3 1976). In one case it applied the rule to literature exhorting employees "to support employees of other employers who were on strike and to oppose an alleged antilabor combination." Yellow Cab, Inc., 210 N.L.R.B., at 569. On the other hand, it has not allowed distribution of "purely political" material on employers' premises, even when the material might arguably be within the scope of § 7. See n.18, supra. This Court already has approved the Board's limited extension of the Republic Aviation rule to cover the distribution of literature by dissident employees advocating the displacement of a union. See NLRB v. Magnavox Co., 415 U.S. 322, 94 S.Ct. 1099, 39 L.Ed.2d 358 (1974); id., at 327, 94 S.Ct., at 1102 (STEWART, J., concurring in part and dissenting in part). 24 As we have had occasion to state: "Unions have a legitimate and substantial interest in continuing organizational efforts after recognition. Whether the goal is merely to strengthen or preserve the union's majority, or is to achieve 100% employee membership—a particularly substantial union concern where union security agreements are not permitted, as they are not here . . .—these organizing efforts are equally entitled to the protection of § 7 . . . ." Letter Carriers v. Austin, 418 U.S. 264, 279, 94 S.Ct. 2770, 2778, 41 L.Ed.2d 745 (1974). 1 The Court's assertion to the contrary notwithstanding, both Babcock and Republic Aviation, like this case, involved a "trespass on the employer's property," ante, at 571, in that union members sought to override the employer's right to prescribe the conditions of entry to its property. It cannot accept the implications of the dictum in Hudgens v. NLRB, 424 U.S. 507, 521-522, n.10, 96 S.Ct. 1029, 1036-1037, 47 L.Ed.2d 196 (1976), which may in turn be traced back to that portion of the Board's opinion quoted in Republic Aviation, 324 U.S., at 803-804, n.10, 65 S.Ct., at 987-988, n.10, that this constitutionally protected right may be disregarded where employees are involved simply by characterizing it as a "management interes[t]." The employer has a property right under Texas law to decide not only who shall come on his property but also the conditions which must be complied with to remain there. The fact that this right may be subordinated by various governmental enactments makes it no less a property right. 2 I do not read the reference in Central Hardware to "§ 7 rights" as a suggestion that all rights protected under that section may be allowed to intrude upon an employer's property rights. The rest of the paragraph clearly limits its application to organization rights, and the Court in a later case suggested that distinctions might be drawn between "lawful economic strike activity" and "organizational activity," both of which are protected rights under § 7. Hudgens v. NLRB, supra, 424 U.S., at 522, 96 S.Ct., at 1037. Earlier this Term, in Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209, the Court conceded that trespassory picketing might be protected in some circumstances, but went on to state: "Even on the assumption that picketing to enforce area standards is entitled to the same deference in the Babcock accommodation analysis as organizational solicitation, it would be unprotected in most instances." Id., at 206, 98 S.Ct., at 1762 (footnote omitted). No holding of this Court has ever found such a trespass protected. 3 The Court's complaint that "almost every issue can be viewed by some as political," ante, at 527 n.20, contrasts markedly with its earlier assurance, in another context, that "common-sense" distinctions may be drawn between political speech and commercial speech. Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455-456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978). In any case, there is little difficulty in determining whether the employer has the power to affect those matters of which his employees complain. Where he does not, there is no reason to require him to permit such advocacy on his property, even though such activity might arguably be protected under § 7 if committed elsewhere.

67

437 U.S. 518 98 S.Ct. 2482 57 L.Ed.2d 397 Sidney S. HICKLIN et al., Appellants,v.Edmund ORBECK, Commissioner of the Department of Labor of Alaska, et al. No. 77-324. Argued March 21, 1978. Decided June 22, 1978. Syllabus Appellants, at least five of whom are not residents of Alaska, challenged in state court the constitutionality of the "Alaska Hire" statute (which was enacted professedly for the purpose of reducing unemployment within the State) that requires that all Alaskan oil and gas leases, easements or right-of-way permits for oil and gas pipelines, and unitization agreements contain a requirement that qualified Alaska residents be hired in preference to nonresidents. The trial court upheld the statute. The Alaska Supreme Court affirmed except for that part of the Act that contained a one-year durational residency requirement, which it held invalid. Held: 1. The invalidation of the one-year durational residency requirement does not moot the case, since a controversy still exists between the nonresident appellants, none of whom can qualify as "residents" under the statutory definition, and the appellees, state officials. Those appellants thus have a continuing interest in restraining the statutory discrimination favoring state residents. P. 523. 2. Alaska Hire violates the Privileges and Immunities Clause of Art. IV, § 2. Pp. 523-534. (a) Though the Clause "does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it," it "does bar discrimination against citizens of other States where there is no reason for the discrimination beyond the mere fact that they are citizens of other States." Toomer v. Witsell, 334 U.S. 385, 396, 68 S.Ct. 1156, 1162, 92 L.Ed. 1460. See also Mullaney v. Anderson, 342 U.S. 415, 72 S.Ct. 428, 96 L.Ed. 458. Pp. 524-526. (b) Even under the dubious assumption that a State may validly alleviate its unemployment problem by requiring private employers within the State to discriminate against nonresidents, Alaska Hire cannot be upheld, for the record indicates that Alaska's unemployment was not attributable to the influx of nonresident jobseekers, but rather to the fact that a substantial number of Alaska's jobless residents were unemployed either because of lack of education and job training or because of geographical remoteness from job opportunities. Employment of nonresidents threatened to deny jobs to residents only to the extent that jobs for which untrained residents were being prepared might be filled by nonresidents before the residents' training was completed. Moreover, even if a showing was made that nonresidents were "a peculiar source of the evil," Toomer v. Witsell, supra, 334 U.S. at 398, 68 S.Ct., at 1163, at which Alaska Hire was aimed, the statute would still be invalid, for its discrimination against nonresidents does not bear a substantial relationship to the "evil" that they are said to present, since statutory preference over nonresidents is given to all Alaskans, not just those who are unemployed. Pp. 526-528. (c) Alaska's ownership of the oil and gas that are the subject matter of Alaska Hire constitutes insufficient justification for the statute's pervasive discrimination against nonresidents. Alaska Hire's reach includes employers who have no connection with the State's oil and gas, perform no work on state land, have no contractual relationship with the State, and receive no payment from the State; and the Act's coverage is not limited to activities connected with the extraction of Alaska's oil and gas. Pp. 528-531. (d) The conclusion that Alaska Hire cannot withstand constitutional scrutiny is fortified by decisions under the Commerce Clause that circumscribe a State's ability to prefer its own citizens in the utilization of natural resources found within its borders but destined for interstate commerce. West v. Kansas Natural Gas, 221 U.S. 229, 31 S.Ct. 564, 55 L.Ed. 716; Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117, and Foster Packing Co. v. Haydel, 278 U.S. 1, 49 S.Ct. 1, 73 L.Ed. 147. The oil and gas upon which Alaska hinges its discrimination are bound for out-of-state consumption and are of profound national importance while the breadth of the discrimination mandated by Alaska Hire transcends the degree of resident bias that Alask § ownership of the oil and gas can justifiably support. Pp. 531-534. Alaska, 565 P.2d 159, reversed. Robert H. Wagstaff, Anchorage, Alaska, for appellants. Ronald W. Lorensen, Juneau, Alaska, for appellees. Mr. Justice BRENNAN delivered the opinion of the Court. 1 In 1972, professedly for the purpose of reducing unemployment in the State, the Alaska Legislature passed an Act entitled "Local Hire Under State Leases." Alaska Stat.Ann. §§ 38.40.010 to 38.40.090 (1977). The key provision of "Alaska Hire," as the Act has come to be known, is the requirement that "all oil and gas leases, easements or right-of-way permits for oil or gas pipeline purposes, unitization agreements, or any renegotiation of any of the preceding to which the state is a party" contain a provision "requiring the employment of qualified Alaska residents" in preference to nonresidents.1 Alaska Stat.Ann. § 38.40.030(a) (1977).2 This employment preference is administered by providing persons meeting the statutory requirements for Alaskan residency with certificates of residence—"resident cards"—that can be presented to an employer covered by the Act as proof of residency. 8 Alaska Admin.Code 35.015 (1977). Appellants, individuals desirous of securing jobs covered by the Act but unable to qualify for the necessary resident cards, challenge Alaska Hire as violative of both the Privileges and Immunities Clause of Art. IV, § 2, and the Equal Protection Clause of the Fourteenth Amendment. 2 * Although enacted in 1972, Alaska Hire was not seriously enforced until 1975, when construction on the Trans-Alaska Pipeline,3 was reaching its peak. At that time, the State Department of Labor began issuing residency cards and limiting to resident cardholders the dispatchment to oil pipeline jobs. On March 1, 1976, in response to "numerous complaints alleging that persons who are not Alaska residents have been dispatched on pipeline jobs when qualified Alaska residents were available to fill the jobs," Executive Order # 76-1, Alaska Dept. of Labor (Mar. 1, 1976) (emphasis in original), Edmund Orbeck, the Commissioner of Labor and one of the appellees here, issued a cease-and-desist order to all unions supplying pipeline workers4 enjoining them "to respond to all open job calls by dispatching all qualified Alaska residents before any non-residents are dispatched." Ibid. (emphasis in original). As a result, the appellants, all but one of whom had previously worked on the pipeline, were prevented from obtaining pipeline-related work. Consequently, on April 28, 1976, appellants filed a complaint in the Superior Court in Anchorage seeking declaratory and injunctive relief against enforcement of Alaska Hire. 3 At the time the suit was filed, the provision setting forth the qualifications for Alaskan residency for purposes of Alaska Hire, Alaska Stat.Ann. § 38.40.090,5 included a one-year durational residency requirement. Appellants attacked that requirement as well as the flat employment preference given by Alaska Hire to state residents. By agreement of the parties, consideration of a motion for a preliminary injunction was consolidated with the determination of the suit on its merits. The case was submitted on affidavits, depositions, and memoranda of law; no oral testimony was taken. On July 21, 1976, the Superior Court upheld Alaska Hire in its entirety and denied appellants all relief. On appeal, the Alaska Supreme Court unanimously held that Alaska Hire's one-year durational residency requirement was unconstitutional under both the state and federal Equal Protection Clauses, 565 P.2d 159, 165 (1977), and held further that a durational residency requirement in excess of 30 days was constitutionally infirm. Id., at 171.6 By a vote of 3 to 2, however, the court held that the Act's general preference for Alaska residents was constitutionally permissible. Appellants appealed the State Supreme Court's judgment insofar as it embodied the latter holding, and we noted probable jurisdiction. 434 U.S. 919, 98 S.Ct. 391, 54 L.Ed.2d 275 (1977). We reverse. II 4 Preliminarily, we hold that this case is not moot. Despite the Alaska Supreme Court's invalidation of the one-year durational residency requirement, a controversy still exists between at least five of the appellants—Tommy Ray Woodruff, Frederick A. Mathers, Emmett Ray, Betty Cloud, and Joseph G. O'Brien—and the state appellees. These five appellants have all sworn that they are not residents of Alaska, Record 43, 47, 49, 96, 124. Therefore, none of them can satisfy the element of the definition of "resident" under § 38.40.090(1)(D) that requires that an individual "has not, within the period of required residency, claimed residency in another state." They thus have a continuing interest in restraining the enforcement of Alaska Hire's discrimination in favor of residents of that State.7 5 Appellants' principal challenge to Alaska Hire is made under the Privileges and Immunities Clause of Art. IV, § 2: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." That provision, which "appears in the so-called States' Relations Article, the same Article that embraces the Full Faith and Credit Clause, the Extradition Clause . . . , the provisions for the admission of new States, the Territory and Property Clause, and the Guarantee Clause," Baldwin v. Montana Fish and Game Comm'n, 436 U.S. 371, 379, 98 S.Ct. 1852, 1858, 56 L.Ed.2d 354 (1978), "establishes a norm of comity," Austin v. New Hampshire, 420 U.S. 656, 660, 95 S.Ct. 1191, 1194, 43 L.Ed.2d 530 (1975), that is to prevail among the States with respect to their treatment of each other's residents.8 The purpose of the Clause, as described in Paul v. Virginia, 8 Wall. 168, 180, 19 L.Ed. 357 (1869), is 6 "to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws. It has been justly said that no provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this." 7 Appellants' appeal to the protection of the Clause is strongly supported by this Court's decisions holding violative of the Clause state discrimination against nonresidents seeking to ply their trade, practice their occupation, or pursue a common calling within the State. For example, in Ward v. Maryland, 12 Wall. 418, 20 L.Ed. 449 (1871), a Maryland statute regulating the sale of most goods in the city of Baltimore fell to the privileges and immunities challenge of a New Jersey resident against whom the law discriminated. The statute discriminated against nonresidents of Maryland in several ways: It required nonresident merchants to obtain licenses in order to practice their trade without requiring the same of certain similarly situated Maryland merchants; it charged nonresidents a higher license fee than those Maryland residents who were required to secure licenses; and it prohibited both resident and nonresident merchants from using nonresident salesmen, other than their regular employees, to sell their goods in the city. In holding that the statute violated the Privileges and Immunities Clause, the Court observed that "the clause plainly and unmistakably secures and protects the right of a citizen of one State to pass into any other State of he Union for the purpose of engaging in lawful commerce, trade, or business without molestation." Id., at 430. Ward thus recognized that a resident of one State is constitutionally entitled to travel to another State for purposes of employment free from discriminatory restrictions in favor of state residents imposed by the other State. 8 Again, Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948), the leading modern exposition of the limitations the Clause places on a State's power to bias employment opportunities in favor of its own residents, invalidated a South Carolina statute that required nonresidents to pay a fee 100 times greater than that paid by residents for a license to shrimp commercially in the three-mile maritime belt off the coast of that State. The Court reasoned that although the Privileges and Immunities Clause "does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it," id., at 396, 68 S.Ct., at 1162, "[i]t does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States." Ibid. A "substantial reason for the discrimination" would not exist, the Court explained, "unless there is something to indicate that non-citizens constitute a peculiar source of the evil at which the [discriminatory] statute is aimed." Id., at 398, 68 S.Ct., at 1163. Moreover, even where the presence or activity of nonresidents causes or exacerbates the problem the State seeks to remedy, there must be a "reasonable relationship between the danger represented by non-citizens, as a class, and the . . . discrimination practiced upon them." Id., at 399, 68 S.Ct., at 1164. Toomer's analytical framework was confirmed in Mullaney v. Anderson, 342 U.S. 415, 72 S.Ct. 428, 96 L.Ed. 458 (1952), where it was applied to invalidate a scheme used by the Territory of Alaska for the licensing of commercial fishermen in territorial waters; under that scheme residents paid a license fee of only $5 while nonresidents were charged $50. 9 Even assuming that a State may validly attempt to alleviate its unemployment problem by requiring private employers within the State to discriminate against nonresidents—an assumption made at least dubious by Ward9—it is clear that under the Toomer analysis reaffirmed in Mullaney, Alaska Hire's discrimination against nonresidents cannot withstand scrutiny under the Privileges and Immunities Clause. For although the statute may not violate the Clause if the State shows "something to indicate that noncitizens constitute a peculiar source of the evil at which the statute is aimed." Toomer v. Witsell, supra, 334 U.S. at 398, 68 S.Ct., at 1163, and, beyond this, the State "has no burden to prove that its laws are not violative of the . . . Clause," Baldwin v. Montana Fish and Game Comm'n, 436 U.S. at 402, 98 S.Ct., at 1870 (Brennan, J., dissenting), certainly no showing was made on this record that nonresidents were "a peculiar source of the evil" Alaska Hire was enacted to remedy, namely, Alaska's "uniquely high unemployment." Alaska Stat.Ann. § 38.40.020 (1977). What evidence the record does contain indicates that the major cause of Alaska's high unemployment was not the influx of nonresidents seeking employment, but rather the fact that a substantial number of Alaska's jobless residents—especially the unemployed Eskimo and Indian residents—were unable to secure employment either because of their lack of education and job training or because of their geographical remoteness from job opportunities;10 and that the employment of nonresidents threatened to deny jobs to Alaska residents only to the extent that jobs for which untrained residents were being prepared might be filled by nonresidents before the residents' training was completed. 10 Moreover, even if the State's showing is accepted as sufficient to indicate that nonresidents were "a peculiar source of evil," Toomer and Mullaney compel the conclusion that Alaska Hire nevertheless fails to pass constitutional muster. For the discrimination the Act works against nonresidents does not bear a substantial relationship to the particular "evil" they are said to present. Alaska Hire simply grants all Alaskans, regardless of their employment status, education, or training, a flat employment preference for all jobs covered by the Act. A highly skilled and educated resident who has never been unemployed is entitled to precisely the same preferential treatment as the unskilled, habitually unemployed Arctic Eskimo enrolled in a job-training program. If Alaska is to attempt to ease its unemployment problem by forcing employers within the State to discriminate against nonresidents again, a policy which may present serious constitutional questions the means by which it does so must be more closely tailored to aid the unemployed the Act is intended to benefit. Even if a statute granting an employment preference to unemployed residents or to residents enrolled in job-training programs might be permissible, Alaska Hire's across-the-board grant of a job preference to all Alaskan residents clearly is not. 11 Relying on MCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248 (1877), however, Alaska contends that because the oil and gas that are the subject of Alaska Hire are owned by the State,11 this ownership, of itself, is sufficient justification for the Act's discrimination against nonresidents, and takes the Act totally without the scope of the Privileges and Immunities Clause. As the State sees it "the privileges and immunities clause [does] not apply, and was never meant to apply, to decisions by the states as to how they would permit, if at all, the use and distribution of the natural resources which they own . . . ." Brief for Appellees 20 n. 14. We do not agree that the fact that a State owns a resource, of itself, completely removes a law concerning that resource from the prohibitions of the Clause. Although some courts, including the court below, have read McCready as creating an "exception" to the Privileges and Immunities Clause, we have just recently confirmed that "[i]n more recent years . . . the Court has recognized that the States' interest in regulating and controlling those things they claim to 'own' . . . is by no means absolute." Baldwin v. Montana Fish and Game Comm'n, 436 U.S., at 385, 98 S.Ct., at 1861. Rather than placing a statute completely beyond the Clause, a State's ownership of the property with which the statute is concerned is a factor—although often the crucial factor to be consid red in evaluating whether the statute's discrimination against noncitizens violates the Clause. Dispositive though this factor may be in many cases in which a State discriminates against nonresidents, it is not dispositive here. 12 The reason is that Alaska has little or no proprietary interest in much of the activity swept within the ambit of Alaska Hire; and the connection of the State's oil and gas with much of the covered activity is sufficiently attenuated so that it cannot justifiably be the basis for requiring private employers to discriminate against nonresidents. The extensive reach of Alaska Hire is set out in Alaska Stat.Ann. § 38.40.050(a) (1977). That section provides: 13 "The provisions of this chapter apply to all employment which is a result of oil and gas leases, easements, leases or right-of-way permits for oil or gas pipeline purposes, unitization agreements12 or any renegotiation of any of the preceding to which the state is a party after July 7, 1972; however, the activity which generates the employment must take place inside the state and it must take place either on the property under the control of the person subject to this chapter or be directly related to activity taking place on the property under his control and the activity must be performed directly for the person subject to this chapter or his contractor or a subcontractor of his contractor or a supplier of his contractor or subcontractor." (Emphasis added.) 14 Under this provision, Alaska Hire extends to employers who have no connection whatsoever with the State's oil and gas, perform no work on state land, have no contractual relationship with the State, and receive no payment from the State. The Act goes so far as to reach suppliers who provide goods or services to subcontractors who, in turn, perform work for contractors despite the fact that none of these employers may themselves have direct dealings with the State's oil and gas or ever set foot on state land.13 Moreover, the Act's coverage is not limited to activities connected with the extraction of Alaska's oil and gas.14 It encompasses, as emphasized by the dissent below, "employment opportunities at refineries and in distribution systems utilizing oil and gas obtained under Alaska leases." 565 P.2d, at 171. The only limit of any consequence on the Act's reach is the requirement that "the activity which generates the employment must take place inside the state." Although the absence of this limitation would be noteworthy, its presence hardly is; for it simply prevents Alaska Hire from having what would be the surprising effect of requiring potentially covered out-of-state employers to discriminate against res dents of their own State in favor of nonresident Alaskans. In sum, the Act is an attempt to force virtually all businesses that benefit in some way from the economic ripple effect of Alaska's decision to develop its oil and gas resources to bias their employment practices in favor of the State's residents. We believe that Alaska's ownership of the oil and gas that is the subject matter of Alaska Hire simply constitutes insufficient justification for the pervasive discrimination against nonresidents that the Act mandates.15 15 Although appellants raise no Commerce Clause challenge to the Act, the mutually reinforcing relationship between the Privileges and Immunities Clause of Art. IV, § 2, and the Commerce Clause—a relationship that stems from their common origin in the Fourth Article of the Articles of Confederation16 and their shared vision of federalism, see Baldwin v. Montana Fish and Game Comm'n, 436 U.S. at 379-380, 98 S.Ct., at 1858, renders several Commerce Clause decisions appropriate support for our conclusion. West v. Kansas Natural Gas, 221 U.S. 229, 31 S.Ct. 564, 55 L.Ed. 716 (1911), struck down an Oklahoma statutory scheme that completely prohibited the out-of-state shipment of natural gas found within the State. The Court reasoned that if a State could so prefer its own economic well-being to that of the Nation as a whole, "Pennsylvania might keep its coal, the Northwest its timber, [and] the mining States their minerals," so that "embargo may be retaliated by embargo" with the result that "commerce [would] be halted at state lines." Id., at 255, 31 S.Ct., at 571. West was held to be controlling in Pen sylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923), where a West Virginia statute that effectively required natural gas companies within the State to satisfy all fuel needs of West Virginia residents before transporting any natural gas out of the State was held to violate the Commerce Clause. West and Pennsylvania v. West Virginia thus established that the location in a given State of a resource bound for interstate commerce is an insufficient basis for preserving the benefits of the resource exclusively or even principally for that State's residents. Foster Packing Co. v. Haydel, 278 U.S. 1, 49 S.Ct. 1, 73 L.Ed. 147 (1928), went one step further; it limited the extent to which a State's purported ownership of certain resources could serve as a justification for the State's economic discrimination in favor of residents. There, in the face of Louisiana's claim that the State owned all shrimp within state waters, the Court invalidated a Louisiana law that required the local processing of shrimp taken from Louisiana marshes as a prerequisite to their out-of-state shipment. The Court observed that "by permitting its shrimp to be taken and all the products thereof to be shipped and sold in interstate commerce, the State necessarily releases its hold and, as to the shrimp so taken, definitely terminates its control." Id., at 13, 49 S.Ct., at 4. 16 West, Pennsylvania v. West Virginia, and Foster Packing thus establish that the Commerce Clause circumscribes a State's ability to prefer its own citizens in the utilization of natural resources found within its borders, but destined for interstate commerce. Like Louisiana's shrimp in Foster Packing, Alaska's oil and gas here are bound for out-of-state consumption. Indeed, the construction of the Trans-Alaska Pipeline, on which project appellants' nonresidency has prevented them from working, was undertaken expressly to accomplish this end.17 Although the fact that a state-owned resource is destined for interstate commerce does not, of itself, disable the State from preferring its own citizens in the utilization of that resource, it does inform analysis under the Privileges and Immunities Clause as to the permissibility of the discrimination the State visits upon nonresidents based on its ownership of the resource. Here, the oil and gas upon which Alaska hinges its discrimination against nonresidents are of profound national importance.18 On the other hand, the breadth of the discrimination mandated by Alaska Hire goes far beyond the degree of resident bias Alaska's ownership of the oil and gas can justifiably support. The confluence of these realities points to but one conclusion: Alaska Hire cannot withstand constitutional scrutiny. As Mr. Justice Cardozo observed in Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 523, 55 S.Ct. 497, 500, 79 L.Ed. 1032 (1935), the Constitution "was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division."19 17 Reversed. 1 The regulations implementing the Act further require that all nonresidents be laid off before any resident "working in the same trade or craft" is terminated: "[T]he nonresident may be retained only if no resident employee is qualified to fill the position." 8 Alaska Admin.Code 35.011 (1977). See also 8 Alaska Admin.Code 35.042(4) (1977). 2 The complete text of § 38.40.030(a) is as follows: "In order to create, protect and preserve the right of Alaska residents to employment, the commissioner of natural resources shall incorporate into all oil and gas leases, easements or right-of-way permits for oil or gas pipeline purposes, unitization agreements, or any renegotiation of any of the preceding to which the state is a party, provisions requiring the lessee to comply with applicable laws and regulations with regard to the employment of Alaska residents, a provision requiring the employment of qualified Alaska residents, a provision prohibiting discrimination against Alaska residents and, when in the determination of the commissioner of natural resources it is practicable, a provision requiring compliance with the Alaska Plan, all in accordance with the provisions of this chapter." 3 See Trans Alaska Pipeline Rate ases, 436 U.S. 631, 98 S.Ct. 2053, 56 L.Ed.2d 591 (1978); Trans-Alaska Pipeline Authorization Act, 87 Stat. 584, 43 U.S.C. § 1651 et seq. (1970 ed., Supp. V). 4 App. 13-14. The vast majority of pipeline jobs were filled through union dispatchment. Deposition of David Finrow, Deputy Director of the Wage and Hour Division of the Alaska Dept. of Labor, in No. 3025 (Sup. Ct. Alaska), pp. 18-19, 28, 48. 5 Section 38.40.090 provides: "In this chapter "(1) 'resident' means a person who "(A) except for brief intervals, military service, attendance at an educational or training institution, or for absences for good cause, is physically present in the state for a period of one year immediately before the time his status is determined; "(B) maintains a place of residence in the state; "(C) has established residency for voting purposes in the state; "(D) has not, within the period of required residency, claimed residency in another state; and "(E) shows by all attending circumstances that his intent is to make Alaska his permanent residence." 6 Appellees have not cross-appealed this portion of the Alaska Supreme Court's decision, which rests upon an independent and adequate state ground. Murdock v. Memphis, 20 Wall. 590, 22 L.Ed. 429 (1875). 7 As to the remaining three appellants—Sidney S. Hicklin, Ruby E. Dorman, and Harry A. Browning—the case does appear moot. At the time this suit was instituted, all three claimed to be Alaskan residents, but none had lived in the State continuously for one year. Record 45, 51-52, 126-127. Consequently, the only aspect of Alaska Hire they challenged was the Act's one-year durational residency requirement. When this requirement was held invalid by the Alaska Supreme Court, their controversy with the appellees see § to have terminated. 8 Although this Court has not always equated state residency with state citizenship, compare Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 78-79, 40 S.Ct. 228, 231-232, 64 L.Ed. 460 (1920), and Blake v. McClung, 172 U.S. 239, 246-247, 19 S.Ct. 165, 168, 43 L.Ed. 432 (1898), with Southern R. Co. v. Mayfield, 340 U.S. 1, 3-4, 71 S.Ct. 1, 2-3, 95 L.Ed. 3 (1950); Douglas v. New Haven R. Co., 279 U.S. 377, 386-387, 49 S.Ct. 355, 356, 73 L.Ed. 747 (1929); and La Tourette v. McMaster, 248 U.S. 465, 469-470, 39 S.Ct. 160, 161-162, 63 L.Ed. 362 (1919), it is now established that the terms "citizen" and "resident" are "essentially interchangeable," Austin v. New Hampshire, 420 U.S. 656, 662 n. 8, 95 S.Ct. 1191, 1195, 43 L.Ed. 530 (1975), for purposes of analysis of most cases under the Privileges and Immunities Clause of Art. IV, § 2. See Toomer v. Witsell, 334 U.S. 385, 397, 68 S.Ct. 1156, 1162, 92 L.Ed. 1460 (1948). 9 Cf. Edwards v. C lifornia, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941). 10 For example, a report quoted in the State's Memorandum in Opposition to Plaintiffs' Motion for Partial Preliminary Injunction and Second Motion for Preliminary Injunction, Record 58, observed: "The skill levels of in-migrants and seasonal workers are generally higher than those of the unemployed or under-employed resident workers. Their ability to command jobs in Alaska is a symptom of, rather than the cause of conditions resulting in high unemployment rates, particularly among Alaska Natives. Those who need the jobs the most tend to be undereducated, untrained, or living in areas of the state remote from job opportunities. Unless unemployed residents—most of whom are Eskimos and Indians have access to job markets and receive the education and training required to fit them into Alaska's increasingly technological economy and unless there is a restructuring of labor demands, new jobs will continue to be filled by persons from other states who have the necessary qualifications." Federal Field Committee for Development Planning in Alaska, Economic Outlook for Alaska 311-312 (1971) (emphasis added; footnote omitted). 11 At the time Alaska was admitted into the Union on January 3, 1959, 99% of all land within Alaska's borders was owned by the Federal Government. In becoming a State, Alaska was granted and became entitled to select approximately 103 million acres of those federal lands. Alaska Statehood Law, 72 Stat. 340, § 6, 48 U.S.C. note preceding § 21. The selection process is not yet complete, but since 1959 large portions of land have been conveyed to the State, in fee, by the Federal Government. Full title to those lands and to the minerals on and below them is vested in the State. 72 Stat. 342, § 6(i), note preceding 48 U.S.C. § 21. 12 The term "unitization agreement" is not defined in the Act. Alaska's Commissioner of Natural Resources gave the following definition of the term: "Well, unitization agreement is an agreement between the operators and any given oil field as to the equity that each of them would have with respect to the oil and gas resources in that field. And in some cases that word is used to also include something called the 'Plan of Operations', which sets out the way in which an oil field or gas field would be operated pursuant to the State's conservation laws." Deposition of Guy R. Martin in No. 3025 (Sup.Ct.Alaska), p. 5. 13 According to one of the administrative regulations implementing Alaska Hire, "[s]uppliers shall have the same hiring requirements as an employer covered by this chapter, as to that portion of their supply business that is the result of a project or activity of a lessee, contractor or subcontractor." 8 Alaska Admin. Code 35.080(a) (1977). 14 The Commissioner of Natural Resources expressed this understanding of the scope of the Act: Mr. Martin : " . . . I think it would cover relationships such as anything on a work pad or an associated construction road or possibly a site for a support camp or construction camp." Mr. Wagstaff (attorney for appellants): "What about things such as docks if shipping is being used?" Mr. Martin : "I would think that it could possibly include that." Deposition of Guy R. Martin, supra, at 4. 15 Heim v. McCall, 239 U.S. 175, 36 S.Ct. 78, 60 L.Ed. 206 (1915) and Crane v. New York, 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218 (1915)—if they have any remaining vitality, see Sugarman v. Dougall, 413 U.S. 634, 643-645, 93 S.Ct. 2842, 2848-2849, 37 L.Ed.2d 853 (1973); C. D. R. Enterprises, Ltd. v. Board of Education, 412 F.Supp. 1164 (EDNY1976), summarily aff'd sub nom. Lefkowitz v. C. D. R. Enterprises, Ltd., 429 U.S. 1031, 97 S.Ct. 721, 50 L.Ed.2d 742 (1977)—do not suggest otherwise. In those cases, a New York statute that limited employment "in the construction of public works" to United States citizens and also required that an employment preference be given to New York citizens in such projects was upheld against challenges under both the Constitution and the Treaty of 1871 with Italy. Although the Art. IV, § 2, Privileges and Immunities Clause, along with the Due Process, Equal Protection, and Privileges and Immunities Clauses of the Fourteenth Amendment, was listed as one of the constitutional bases for attacking the statute, no out-of-state United States citizen challenged the law. As a consequence, both the appellants and the Court were concerned almost exclusively with the statute's discrimination against resident aliens. This was reflected in the Court's holding, which was limited to the Fourteenth Amendment and Treaty challenges and expressed no view on appellants' passing Art. IV, § 2, privileges and immunities claim. 16 That Article provided: "The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each of these states, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions, as the inhabitants thereof respectively; provided, that such restrictions shall not extend so far as to prevent the removal of property, imported into any State, to any other State of which the owner is an inhabitant; provided also, that no imposition, duties, or restriction, shall be laid by any State on the property of the United States, or either of them." 9 Journal of the Continental Congress 908-909 (1777) (Library of Congress ed., 1907). 17 In authorizing the construction of the Trans-Alaska Pipeline, Congress expressly found that "[t]he early development and delivery of oil and gas from Alaska's North Slope to domestic markets is in the national interest because of growing domestic shortages and increasing dependence upon insecure foreign sources." 43 U.S.C. § 1651(a) (1970 ed., Supp. V) (emphasis added). 18 In enacting the Alaska Natural Gas Transportation Act of 1976, 15 U.S.C. § 719 et seq. (1976 ed.) Congress declared: "(1) a natural gas supply shortage exists in the contiguous States of the United States; "(2) large reserves of natural gas in the State of Alaska could help significantly to alleviate this supply shortage; "(3) the expeditious construction of a viable natural gas transportation system for delivery of Alaska natural gas to United States markets is in the national interest; and "(4) the determinations whether to authorize a transportation system for delivery of Alaska natural gas to the contiguous States and, if so, which system to select, involve questions of the utmost importance respecting national energy policy, international relations, national security, and economic and environmental impact, and therefore should appropriately be addressed by the Congress and the President in addition to those Federal officers and agencies assigned functions under law pertaining to the selection, construction, and initial operation of such a system." 15 U.S.C. § 719 (1976 ed.). See n. 17, supra. 19 In light of our conclusion that Alaska Hire is invalid under the Privileges and Immunities Clause of Art. IV, § 2, we have no occasion to address appellants' challenges to the Act under the Equal Protection Clause of the Fourteenth Amendment.

12

437 U.S. 584 98 S.Ct. 2522 57 L.Ed.2d 451 Lutrelle F. PARKER, Acting Commissioner of Patents and Trademarks, Petitioner,v.Dale R. FLOOK. No. 77-642. Argued April 25, 1978. Decided June 22, 1978. Syllabus Respondent's method for updating alarm limits during catalytic conversion processes, in which the only novel feature is a mathematical formula, held not patentable under § 101 of the Patent Act. The identification of a limited category of useful, though conventional, post-solution applications of such a formula does not make the method eligible for patent protection, since assuming the formula to be within prior art, as it must be, O'Reilly v. Morse, 15 How. 62, 14 L.Ed. 601, respondent's application contains no patentable invention. The chemical processes involved in catalytic conversion are well known, as are the monitoring of process variables, the use of alarm limits to trigger alarms, the notion that alarm limit values must be recomputed and readjusted, and the use of computers for "automatic process monitoring." Pp. 588-596. 559 F.2d 21, reversed. Lawrence G. Wallace, Washington, D.C., for petitioner. D. Dennis Allegretti, Chicago, Ill., for respondent. Mr. Justice STEVENS delivered the opinion of the Court. 1 Respondent applied for a patent on a "Method for Updating Alarm Limits." The only novel feature of the method is a mathematical formula. In Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253, 34 L.Ed.2d 273, we held that the discovery of a novel and useful mathematical formula may not be patented. The question in this case is whether the identification of a limited category of useful, though conventional, post-solution applications of such a formula makes respondent's method eligible for patent protection. 2 * An "alarm limit" is a number. During catalytic conversion processes, operating conditions such as temperature, pressure, and flow rates are constantly monitored. When any of these "process variables" exceeds a predetermined "alarm limit," an alarm may signal the presence of an abnormal condition indicating either inefficiency or perhaps danger. Fixed alarm limits may be appropriate for a steady operation, but during transient operating situations, such as start-up, it may be necessary to "update" the alarm limits periodically. 3 Respondent's patent application describes a method of updating alarm limits. In essence, the method consists of three steps: an initial step which merely measures the present value of the process variable (e. g., the temperature); an intermediate step which uses an algorithm1 to calculate an updated alarm-limit value; and a final step in which the actual alarm limit is adjusted to the updated value.2 The only difference between the conventional methods of changing alarm limits and that described in respondent's application rests in the second step—the mathematical algorithm or formula. Using the formula, an operator can calculate an updated alarm limit once he knows the original alarm base, the appropriate margin of safety, the time interval that should elapse between each updating, the current temperature (or other process variable), and the appropriate weighting factor to be used to average the original alarm base and the current temperature. 4 The patent application does not purport to explain how to select the appropriate margin of safety, the weighting factor, or any of the other variables. Nor does it purport to contain any disclosure relating to the chemical processes at work, the monitoring of process variables, or the means of setting off an alarm or adjusting an alarm system. All that it provides is a formula for computing an updated alarm limit. Although the computations can be made by pencil and paper calculations, the abstract of disclosure makes it clear that the formula is primarily useful for computerized calculations producing automatic adjustments in alarm settings.3 5 The patent claims cover any use of respondent's formula for updating the value of an alarm limit on any process variable involved in a process comprising the catalytic chemical conversion of hydrocarbons. Since there are numerous processes of that kind in the petrochemical and oil-refining industries,4 the claims cover a broad range of potential uses of the method. They do not, however, cover every conceivable application of the formula. II 6 The patent examiner rejected the application. H found that the mathematical formula constituted the only difference between respondent's claims and the prior act and therefore a patent on this method "would in practical effect be a patent on the formula or mathematics itself."5 The examiner concluded that the claims did not describe a discovery that was eligible for patent protection. 7 The Board of Appeals of the Patent and Trademark Office sustained the examiner's rejection. The Board also concluded that the "point of novelty in [respondent's] claimed method"6 lay in the formula or algorithm described in the claims, a subject matter that was unpatentable under Benson, supra. 8 The Court of Customs and Patent Appeals reversed. In re Flook, 559 F.2d 21. It read Benson as applying only to claims that entirely pre-empt a mathematical formula or algorithm, and noted that respondent was only claiming on the use of his method to update alarm limits in a process comprising the catalytic chemical conversion of hydrocarbons. The court reasoned that since the mere solution of the algorithm would not constitute infringement of the claims, a patent on the method would not pre-empt the formula. 9 The Acting Commissioner of Patents and Trademarks filed a petition for a writ of certiorari, urging that the decision of the Court of Customs and Patent Appeals will have a debilitating effect on the rapidly expanding computer "software" industry,7 and will require him to process thousands of addi tional patent applications. Because of the importance of the question, we granted certiorari, 434 U.S. 1033, 98 S.Ct. 764, 54 L.Ed.2d 780. III 10 This case turns entirely on the proper construction of § 101 of the Patent Act, which describes the subject matter that is eligible for patent protection.8 It does not involve the familiar issues of novelty and obviousness that routinely arise under §§ 102 and 103 when the validity of a patent is challenged. For the purpose of our analysis, we assume that respondent's formula is novel and useful and that he discovered it. We also assume, since respondent does not challenge the examiner's finding, that the formula is the only novel feature of respondent's method. The question is whether the discovery of this feature makes an otherwise conventional method eligible for patent protection. 11 The plain language of § 101 does not answer the question. It is true, as respondent argues, that his method is a "process" in the ordinary sense of the word.9 But that was also true of the algorithm, which described a method for converting binary-coded decimal numerals into pure binary numerals, that was involved in Gottschalk v. Benson. The holding that the discovery of that method could not be patented as a "process" forecloses a purely literal reading of § 101.10 Reasoning that an algorithm, or mathematical formula, is like a law of nature, Benson applied the established rule that a law of nature cannot be the subject of a patent. Quoting from earlier cases, we said: 12 " 'A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right.' Le Roy v. Tatham, 14 How. 156, 175, 14 L.Ed. 367. Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work." 409 U.S., at 67, 93 S.Ct., at 255. 13 The line between a patentable "process" and an unpatentable "principle" is not always clear. Both are "conception[s] of the mind, seen only by [their] effects when being executed or performed." Tilghman v. Proctor, 102 U.S. 707, 728, 26 L.Ed. 279. In Benson we concluded that the process application in fact sought to patent an idea, noting that 14 "[t]he mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that if the judgment below is affirmed, the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself." 409 U.S., at 71-72, 93 S.Ct., at 257. 15 Respondent correctly points out that this language does not apply to his claims. He does not seek to "wholly preempt the mathematical formula," since there are uses of his formula outside the petrochemical and oil-refining industries that remain in the public domain. And he argues that the presence of specific "post-solution" activity—the adjustment of the alarm limit to the figure computed according to the formula distinguishes this case from Benson and makes his process patentable. We cannot agree. 16 The notion that post-solution activity, no matter how conventional or obvious in itself, can transform an unpatentable principle into a patentable process exalts form over substance. A competent draftsman could attach some form of post-solution activity to almost any mathematical formula; the Pythagorean theorem would not have been patentable, or partially patentable, because a patent application contained a final step indicating that the formula, when solved, could be usefully applied to existing surveying techniques.11 The concept of patentable subject matter under § 101 is not "like a nose of wax which may be turned and twisted in any direction . . . ." White v. Dunbar, 119 U.S. 47, 51, 7 S.Ct. 72, 74, 30 L.Ed. 303. 17 Yet it is equally clear that a process is not unpatentable simply because it contains a law of nature or a mathematical algorithm. See Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523; Tilghman v. Proctor, supra.12 For instance, in Mackay Radio & Telegraph Co. v. Radio Corp. of America, 306 U.S. 86, 59 S.Ct. 427, 83 L.Ed. 506, the pplicant sought a patent on a directional antenna system in which the wire arrangement was determined by the logical application of a mathematical formula. Putting the question of patentability to one side as a preface to his analysis of the infringement issue, Mr. Justice Stone, writing for the Court, explained: 18 "While a scientific truth, or the mathematical expression of it, is not patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be." Id., at 94, 59 S.Ct., at 431. 19 Funk Bros. Seed Co. v. Kalo Co., 333 U.S. 127, 130, 68 S.Ct. 440, 441, 92 L.Ed. 588, expresses a similar approach: 20 "He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end." 21 Mackay Radio and Funk Bros. point to the proper analysis for this case: The process itself, not merely the mathematical algorithm, must be new and useful. Indeed, the novelty of the mathematical algorithm is not a determining factor at all. Whether the algorithm was in fact known or unknown at the time of the claimed invention, as one of the "basic tools of scientific and technological work," see Gottschalk v. Benson, 409 U.S., at 67, 93 S.Ct., at 255, it is treated as though it were a familiar part of the prior art. 22 This is also the teaching of our landmark decision in O'Reilly v. Morse, 15 How. 62. In that case the Court rejected Samuel Morse's broad claim covering any use of electromagnetism for printing intelligible signs, characters, or letters at a distance. Id., at 112-121. In reviewing earlier cases applying the rule that a scientific principle cannot be patented, the Court placed particular emphasis on the English case of Neilson v. Harford, Web. Pat. Cases 295, 371 (1844), which involved the circulation of heated air in a furnace system to increase its efficiency. The English court rejected the argument that the patent merely covered the principle that furnace temperature could be increased by injecting hot air, instead of cold into the furnace. That court's explanation of its decision was relied on by this Court in Morse : 23 " 'It is very difficult to distinguish it [the Neilson patent] from the specification of a patent for a principle, and this at first created in the minds of the court much difficulty; but after full consideration, we think that the plaintiff does not merely claim a principle, but a machine, embodying a principle, and a very valuable one. We think the case must be considered as if the principle being well known, the plaintiff had first invented a mode of applying it . . . .' " 15 How., at 115 (emphasis added).13 24 We think this case must also be considered as if the principle or mathematical formula were well known. 25 Respondent argues that this approach improperly imports into § 101 the considerations of "inventiveness" which are the proper concerns of §§ 102 and 103.14 This argument is based on two fundamental misconceptions. First, respondent incorrectly assumes that if a process application implements a principle in some specific fashion, it automatically falls within the patentable subject matter of § 101 and the substantive patentability of the particular process can then be determined by the conditions of §§ 102 and 103. This assumption is based on respondent's narrow reading of Benson, and is as untenable in the context of § 101 as it is in the context of that case. It would make the determination of patentable subject matter depend simply on the draftsman's art and would ill serve the principles underlying the prohibition against patents for "ideas" or phenomena of nature. The rule that the discovery of a law of nature cannot be patented rests, not on the notion that natural phenomena are not processes, but rather on the more fundamental understanding that they are not the kind of "discoveries" that the statute was enacted to protect.15 The obligation to determine what type of discovery is sought to be patented must precede the determination of whether that discovery is, in fact, new or obvious. 26 Second, respondent assumes that the fatal objection to his application is the fact that one of its components—the mathematical formula—consists of unpatentable subject matter. In countering this supposed objection, respondent relies on opinions by the Court of Customs and Patent Appeals which reject the notion "that a claim may be dissected, the claim components searched in the prior art, and, if the only component found novel is outside the statutory classes of invention, the claim may be rejected under 35 U.S.C. § 101." In re Chatfield, 545 F.2d 152, 158 (Cust. & Pat.App.1976).16 Our approach to respondent's application is, however, not at all inconsistent with the view that a patent claim must be considered as a whole. Respondent's process is unpatentable under § 101, not because it contains a mathematical algorithm as one component, but because once that algorithm is assumed to be within the prior art, the application, considered as a whole, contains no patentable invention. Even though a phenomenon of nature or mathematical formula may be well known, an inventive application of the principle may be patented. Conversely, the discovery of such a phenomenon cannot support a patent unless there is some other inventive concept in its application. 27 Here it is absolutely clear that respondent's application contains no claim of patentable invention. The chemical processes involved in catalytic conversion of hydrocarbons are well known, as are the practice of monitoring the chemical process variables, the use of alarm limits to trigger alarms, the notion that alarm limit values must be recomputed and readjusted, and the use of computers for "automatic monitoring-alarming."17 Respondent's application simply provides a new and presumably better method for calculating alarm limit values. If we assume that that method was also known, as we must under the reasoning in Morse, then respondent's claim is, in effect, comparable to a claim that the formula 2 r can be usefully applied in determining the circumference of a wheel.18 As the Court of Customs and Patent Appeals has explained, "if a claim is directed essentially to a method of calculating, using a mathematical formula, even if the solution is for a specific purpose, the claimed method is nonstatutory." In re Richman, 563 F.2d 1026, 1030 (1977). 28 To a large extent our conclusion is based on reasoning derived from opinions written before the modern business of developing programs for computers was conceived. The youth of the industry may explain the complete absence of precedent supporting patentability. Neither the dearth of precedent, nor this decision, should therefore be interpreted as reflecting a judgment that patent protection of certain novel and useful computer programs will not promote the progress of science and the useful arts, or that such protection is undesirable as a matter of policy. Difficult questions of policy concerning the kinds of programs that may be appropriate for patent protection and the form and duration of such protection can be answered by Congress on the basis of current empirical data not equally available to this tribunal.19 29 It is our duty to construe the patent statutes as they now read, in light of our prior precedents, and we must proceed cautiously when we are asked to extend patent rights into areas wholly unforeseen by Congress. As Mr. Justice White explained in writing for the Court in Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 531, 92 S.Ct. 1700, 1708, 32 L.Ed.2d 273: 30 "[W]e should not expand patent rights by overruling or modifying our prior cases construing the patent statutes, unless the argument for expansion of privilege is based on more than mere inference from ambiguous statutory language. We would require a c ear and certain signal from Congress before approving the position of a litigant who, as respondent here, argues that the beachhead of privilege is wider, and the area of public use narrower, than courts had previously thought. No such signal legitimizes respondent's position in this litigation." 31 The judgment of the Court of Customs and Patent Appeals is 32 Reversed. APPENDIX TO OPINION OF THE COURT 33 Claim 1 of the patent describes the method as follows: 34 "1. A method for updating the value of at least one alarm limit on at least one process variable involved in a process comprising the catalytic chemical conversion of hydrocarbons wherein said alarm limit has a current value of Bo + K 35 "wherein Bo is the current alarm base and K is a predetermined alarm offset which comprises: "(1) Determining the present value of said process variable, said present value being defined as PVL; 36 "(2) Determining a new alarm base B1, using the following equation: B1 = Bo(1.0—F) + PVL(F) 37 "where F is a predetermined number greater than zero and less than 1.0; 38 "(3) Determining an updated alarm limit which is defined as B1 + K; and thereafter 39 "(4) Adjusting said alarm limit to said updated alarm limit value." App. 63A. 40 In order to use respondent's method for computing a new limit, the operator must make four decisions. Based on his knowledge of normal operating conditions, he first selects the original "alarm base" (Bo); if a temperature of 400 degrees is normal, that may be the alarm base. He next decides on an appropriate margin of safety, perhaps 50 degrees; that is his "alarm offset" (K). The sum of the alarm base and the alarm offset equals the alarm limit. Then he decides on the time interval that will elapse between each updating; that interval has no effect on the computation although it may, of course, be of great practical importance. Finally, he selects a weighting factor (F), which may be any number between 99% and 1%,* and which is used in the updating calculation. 41 If the operator has decided in advance to use an original alarm base (Bo) of 400 degrees, a constant alarm offset (K) of 50 degrees, and a weighting factor (F) of 80%, the only additional information he needs in order to compute an updated alarm limit (UAV), is the present value of the process variable (PVL). The computation of the updated alarm limit according to respondent's method involves these three steps: 42 First, at the predetermined interval, the process variable is measured; if we assume the temperature is then 425 degrees, PVL will then equal 425. 43 Second, the solution of respondent's novel formula will produce a new alarm base (B1) that will be a weighted average of the preceding alarm base (Bo) of 400 degrees and the current temperature (PVL) of 425. It will be closer to one or the other depending on the value of the weighting factor (F) selected by the operator. If F is 80%, that percentage of 425 (340) plus 20% (1 F) of 400 (80) will produce a new alarm base of 420 degrees. 44 Third, the alarm offset (K) of 50 degrees is then added to the new alarm base (B1) of 420 to produce the updated alarm limit (UAV) of 470. 45 The process is repeated at the selected time intervals. In each updating computation, the most recently calculated alarm base and the current measurement of the process variable will be substituted for the corresponding numbers in the original calculation, but the alarm offset and the weighting factor will remain constant. 46 Mr. Justice STEWART, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting. 47 It is a commonplace that laws of nature, physical phenomena, and abstract ideas are not patentable subject matter.1 A patent could not issue, in other words, on the law of gravity, or the multip ication tables, or the phenomena of magnetism, or the fact that water at sea level boils at 100 degrees centigrade and freezes at zero—even though newly discovered. Le Roy v. Tatham, 14 How. 156, 175; O'Reilly v. Morse, 15 How. 62, 112-121; Rubber-Tip Pencil Co. v. Howard, 20 Wall. 498, 507, 22 L.Ed. 410; Tilghman v. Proctor, 102 U.S. 707, 26 L.Ed. 279; Mackay Radio & Telegraph Co. v. Radio Corp. of America, 306 U.S. 86, 94, 59 S.Ct. 427, 431, 83 L.Ed. 506; Funk Bros. Seed Co. v. Kalo Co., 333 U.S. 127, 130, 68 S.Ct. 440, 441, 92 L.Ed. 588. 48 The recent case of Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253, 34 L.Ed.2d 273, stands for no more than this long-established principle, which the Court there stated in the following words: 49 "Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work." Id., at 67, 93 S.Ct., at 255. 50 In Benson the Court held unpatentable claims for an algorithm that "were not limited to any particular art or technology, to any particular apparatus or machinery, or to any particular end use." Id., at 64, 93 S.Ct., at 254. A patent on such claims, the Court said, "would wholly pre-empt the mathematical formula and practical effect would be a patent on the algorithm itself." Id., at 72, 93 S.Ct., at 257. 51 The present case is a far different one. The issue here is whether a claimed process2 loses its status of subject-matter patentability simply because one step in the process would not be patentable subject matter if considered in isolation. The Court of Customs and Patent Appeals held that the process is patentable subject matter, Benson being inapplicable since "[t]he present claims do not preempt the formula or algorithm contained therein, because solution of the algorithm, per se, would not infringe the claims." In re Flock, 559 F.2d 21, 23. 52 That decision seems to me wholly in conformity with basic principles of patent law. Indeed, I suppose that thousands of processes and combinations have been patented that contained one or more steps or elements that themselves would have been unpatentable subject matter.3 Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523, is a case in point. There the Court upheld the validity of an improvement patent that made use of the law of gravity, which by itself was clearly unpatentable. See also, e. g., Tilghman v. Proctor, supra. 53 The Court today says it does not turn its back on these well-settled precedents, ante, at 594, but it strikes what seems to me an equally damaging blow at basic principles of patent law by importing into its inquiry under 35 U.S.C. § 101 the criteria of novelty and inventiveness. Section 101 is concerned only with subject-matter patentability. Whether a patent will actually issue depends upon the criteria of §§ 102 and 103, which include novelty and inventiveness, among many others. It may well be that under the criteria of §§ 102 and 103 no patent should issue on the process claimed in this case, because of anticipation, abandonment, obviousness, or for § me other reason. But in my view the claimed process clearly meets the standards of subject-matter patentability of § 101. 54 In short, I agree with the Court of Customs and Patent Appeals in this case, and with the carefully considered opinions of that court in other cases presenting the same basic issue. See In re Freeman, 573 F.2d 1237; In re Richman, 563 F.2d 1026; In re De Castelet, 562 F.2d 1236; In re Deutsch, 553 F.2d 689; In re Chatfield, 545 F.2d 152. Accordingly, I would affirm the judgment before us. 1 We use the word "algorithm" in this case, as we did in Gottschalk v. Benson, 409 U.S. 63, 65, 93 S.Ct. 253, 254, 34 L.Ed.2d 273, to mean "[a] procedure for solving a given type of mathematical problem . . . ." 2 Claim 1 of the patent is set forth in the appendix to this opinion, which also contains a more complete description of these three steps. 3 App. 13A. 4 Examples mentioned in the abstract of disclosure include naphtha reforming, petroleum distillate and petroleum residuum cracking, hydrocracking and desulfurization, aromatic hydrocarbon and paraffin isomerization and disproportionation, paraffin-olefin alkylation, and the like. Id., at 8A. 5 Id., at 47A. 6 Id., at 60A. 7 The term "software" is used in the industry to describe computer programs. The value of computer programs in use in the United States in 1976 was placed at $43.1 billion, and projected at $70.7 billion by 1980 according to one industry estimate. See Brief for the Computer & Business Equipment Manufacturers Assn. as Amicus Curiae 17-18, n. 16. 8 Title 35 U.S.C. § 101 provides: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." Section 100(b) provides: "The term 'process' means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material." 9 The statutory definition of "process" is broad. See n. 8, supra. An argument can be made, however, that his Court has only recognized a process as within the statutory definition when it either was tied to a particular apparatus or operated to change materials to a "different state or thing." See Cochrane v. Deener, 94 U.S. 780, 787-788, 24 L.Ed. 139. As in Benson, we assume that a valid process patent may issue even if it does not meet one of these qualifications of our earlier precedents. 409 U.S., at 71, 93 S.Ct., at 257. 10 In Benson we phrased the issue in this way: "The question is whether the method described and claimed is a 'process' within the meaning of the Patent Act." Id., at 64, 93 S.Ct., at 254. 11 It should be noted that in Benson there was a specific end use contemplated for the algorithm—utilization of the algorithm in computer programming. See In re Chatfield, 545 F.2d 152, 161 (Cust. & Pat. App. 1976) (Rich, J., dissenting). Of course, as the Court pointed out, the formula had no other practical application; but it is not entirely clear why a process claim is any more or less patentable because the specific end use contemplated is the only one for which the algorithm has any practical application. 12 In Eibel Process Co., the Court upheld a patent on an improvement on a papermaking machine that made use of the law of gravity to enhance the flow of the product. The patentee, of course, did not claim to have discovered the force of gravity, but that force was an element in his novel conception. Tilghman v. Proctor involved a process claim for " 'the manufacturing of fat acids and glycerine from fatty bodies.' " The Court distinguished the process from the principle involved as follows: "[T]he claim of the patent is not for a mere principle. The chemical principle or scientific fact upon which it is founded is, that the elements of neutral fat require to be severally united with an atomic equivalent of water in order to separate from each other and become free. This chemical fact was not discovered by Tilghman. He only claims to have invented a particular mode of bringing about the desired chemical union between the fatty elements and water." 102 U.S., at 729. 13 See also Risdon Locomotive Works v. Medart, 158 U.S. 68, 15 S.Ct. 745, 39 L.Ed. 899; Tilghman v. Proctor, supra. 14 Sections 102 and 103 establish certain conditions, such as novelty and nonobviousness, to patentability. 15 The underlying notion is that a scientific principle, such as that expressed in respondent's algorithm, reveals a relationship that has always existed. "An example of such a discovery [of a scientific principle] was Newton's formulation of the law of universal gravitation, relating the force of attraction between two bodies, F, to their masses, m and m', and the square of the distance, d, between their centers, according to the equation F=mm'/d2. But this relationship always existed—even before Newton announced his celebrated law. Such 'mere' recognition of a theretofore existing phenomenon or relationship carries with it no rights to exclude others from its enjoyment. . . . Patentable subject matter must be new (novel); not merely heretofore unknown. There is a very compelling reason for this rule. The reason is founded upon the proposition that in granting patent rights, the public must not be deprived of any rights that it theretofore freely enjoyed." P. Rosenberg, Patent Law Fundamentals, § 4, p. 13 (1975). 16 Section 103, by its own terms, requires that a determination of obviousness be made by considering "the subject matter as a whole," 35 U.S.C. § 103. Alt ough this does not necessarily require that analysis of what is patentable subject matter under § 101 proceed on the same basis, we agree that it should. 17 App. 22. 18 Respondent argues that the inventiveness of his process must be determined as of "the time the invention is made" under § 103, and that, therefore, it is improper to judge the obviousness of his process by assessing the application of the formula as though the formula were part of the prior art. This argument confuses the issue of patentable subject matter under § 101 with that of obviousness under § 103. Whether or not respondent's formula can be characterized as "obvious," his process patent rests solely on the claim that his mathematical algorithm, when related to a computer program, will improve the existing process for updating alarm units. Very simply, our holding today is that a claim for an improved method of calculation, even when tied to a specific end use, is unpatentable subject matter under § 101. 19 Articles assessing the merits and demerits of patent protection for computer programming are numerous. See, e. g., Davis, Computer Programs and Subject Matter Patentability, 6 Rutgers J. of Computers and Law 1 (1977), and articles cited therein, at 2 n. 5. Even among those who favor patentability of computer programs, there is questioning of whether the 17-year protection afforded by the current Patent Act is either needed or appropriate. See id., at 20 n. 133. * More precisely, it is defined as a number greater than 0, but less than 1. 1 Title 35 U.S.C. § 101 provides: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." 2 Title 35 U.S.C. § 100(b) provides: "The term 'process' means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material." 3 In Gottschalk v. Benson, the Court equated process and product patents for the purpose of its inquiry: "We dealt there with a 'product' claim, while the present case deals with a 'process' claim. But we think the same principle applies." 409 U.S., at 67-68, 93 S.Ct., at 255.

78

437 U.S. 483 98 S.Ct. 2463 57 L.Ed.2d 370 BETH ISRAEL HOSPITAL, Petitioner,v.NATIONAL LABOR RELATIONS BOARD. No. 77-152. Argued April 24, 1978. Decided June 22, 1978. Syllabus Petitioner nonprofit hospital had a written rule that prohibited employees from soliciting and distributing literature except in certain employee locker rooms and certain adjacent restrooms. The cafeteria was the common gathering place of employees and had been used by petitioner or with its approval for solicitation and distribution of literature to employees for various nonunion purposes. After an employee had made general distribution in the cafeteria to other employees of a union newsletter and had been warned that she had violated the hospital's rule and would be dismissed if she did so again, the National Labor Relations Board (NLRB), following a charge by the union, issued an unfair labor practice complaint against petitioner. The NLRB applied to petitioner the rule that it had adopted in St. John's Hospital & School of Nursing, Inc., 222 N.L.R.B. 1150, that since "the primary function of a hospital is patient care," and "a tranquil atmosphere is essential to th carrying out of that function," a hospital may be warranted in imposing more stringent restrictions on employee solicitation and distribution in immediate patient-care areas than are generally permitted other employers, but the balance should be struck against such restrictions in other areas such as lounges and cafeterias, absent a showing of disruption to patients. The NLRB held that petitioner's ban violated § 8(a)(1) of the National Labor Relations Act (Act), which by amendments to the Act in 1974 was made applicable to employees of nonprofit health-care institutions, and that the disciplining of employees for not observing the prohibition violated § 8(a)(3). The NLRB ordered petitioner to cease and desist from interfering with "concerted union activities" and employees' § 7 rights, and to rescind its written rule. The Court of Appeals accepted as settled law that restrictions on employee solicitation and distribution during nonworking hours are presumptively invalid absent special circumstances and that here petitioner had not satisfied its burden of justifying the ban on protected activities in the eating areas. While narrowing the scope of the remedies ordered by the NLRB, the court upheld the NLRB's action rescinding that part of petitioner's rule applicable to those areas. Held: The Court of Appeals did not err in enforcing the NLRB's order to petitioner to rescind its rule as applied to the hospital's eating facilities. Pp. 491-508. (a) Freedom of employees effectively to communicate with one another regarding self-organization on the jobsite is essential to their right to self-organize and to bargain collectively established by § 7 of the Act, Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372, and in the light of its experience the NLRB is free to adopt a rule that, absent special circumstances, an employer's restriction on employee solicitation during nonworking time and distribution during such time in nonworking areas is presumptively an unreasonable interference with § 7 rights constituting an unfair labor practice under § 8(a)(1), without the necessity of proving the underlying generic facts that persuaded it to reach that conclusion. Pp. 491-493. (b) Nothing in the legislative history of the 1974 amendments shows a congressional policy inconsistent with the NLRB's approach to enforcement of § 7 organizational rights in the hospital context. Pp. 496-500. (c) The NLRB by those amendments is responsible for administering the federal national labor relations policy in the health-care industry. Though the NLRB is no more an expert in that industry than it is in other enterprises within its jurisdiction, it is the NLRB's function to strike the balance in all areas within its jurisdiction between conflicting legitimate interests in order to effectuate the national labor policy. Hence petitioner's argument that the NLRB lacks expertise to make judgments involving hospitals and that the principle of limited judicial review should not apply in that area, is without merit. Pp. 500-501. (d) The NLRB's conclusion that "the possibility of any disruption in patient care resulting from solicitation or distribution of literature is remote" as applied to petitioner's cafeteria is rational and fully supported by the record, as indicated by much cogent evidence, including the facts that only 1.56% of the cafeteria's patrons are patients and that petitioner itself permitted nonunion solicitation and distribution in the cafeteria. Moreover, petitioner introduced no evidence of untoward effects on patients during the period when the rules permitted limited union solicitation in the cafeteria. Pp. 501-505. (e) Contrary to petitioner's argument, it is not irrational for the NLRB to uphold, as it has, a ban against solicitation in the dining area of a public restaurant, where such solicitation tends to upset patrons, while prohibiting a ban on such activity in a hospital cafeteria like petitioner's, 77% of whose patrons are employees, absent evidence that nonemployee patrons would be upset. That argument fails to consider that the NLRB's position struck the appropriate balance between organizational and employer rights in the particular industry to which each solicitation rule applied. Pp. 505-507. 554 F.2d 477, affirmed. Robert Chandler, Boston, Mass., for petitioner. Norton J. Come, Washington, D. C., for respondent. Laurence Gold, Washington, D. C., for intervenor Union. Mr. Justice BRENNAN delivered the opinion of the Court. 1 The National Labor Relations Act, 49 Stat. 449, as amended, 61 Stat. 136, 29 U.S.C. §§ 151 to 168, was further amended in 1974 to extend its coverage and protection to employees of nonprofit health-care institutions.1 Act of July 26, 1974, Pub.L. No. 93-360, 88 Stat. 395. Petitioner is a Boston nonprofit hospital whose employees are covered by the amended Act. This case presents the question whether the Court of Appeals for the First Circuit erred in ordering enforcement of that part of an order of the National Labor Relations Board based on the Board's finding that petitioner, in violation of §§ 8(a)(1) and (3), 29 U.S.C. §§ 158(a)(1) and (3), interfered with its employees' rights guaranteed by § 7 of the Act, 29 U.S.C. § 157, by issuing and enforcing a rule that prohibits employees from soliciting union support and distributing union literature during nonworking time in the hospital cafeteria and coffeeshop used primarily by employees but also used by patients and visitors. 2 In 1970, prior to the advent of any union organizational activity at the hospital, petitioner announced a rule barring solicitation and distribution of literature in any area to which patients or visitors have access. Petitioner permitted these activities only in certain employee locker rooms and certain adjacent restrooms. App. 59. In July 1974, however, as a result of a proceeding instituted against it before the Massachusetts Labor Relations Commission, petitioner announced a rule permitting solicitation in the cafeteria on a one-to-one basis while maintaining the total ban on distribution. Id., at 67. On March 6, 1975, shortly after the NLRB acquired jurisdiction, petitioner reinstated its previous rule limiting employee solicitation and distribution to certain employee locker and restrooms. Id., at 70.2 That rule provides: 3 "There is to be no soliciting of the general public (patients, visitors) on Hospital property. Soliciting and the distribution of literature to B. I. employees may be done by other B. I. employees, when neither individual is on his or her working time, in employee-only areas—employee locker rooms and certain adjacent rest rooms. Elsewhere within the Hospital including patient-care and all other work areas, and areas open to the public such as lobbies, cafeteria and coffee shop, corridors, elevators, gift shop, etc., there is to be no solicitation nor distribution of literature. 4 "Solicitation or distribution of literature on Hospital property by non-employees is expressly prohibited at all times. 5 "Consistent with our long-standing practices, the annual appeal campaigns of the United Fund and of the Combined Jewish Philanthropies for voluntary charitable gifts will continue to be carried out by the Hospital." Id., at 70-71. 6 Upon a charge filed by the union,3 the Board issued a complaint and the matter was tried before an Administrative Law Judge. The Board affirmed the rulings, findings and conclusions of the Administrative Law Judge that petitioner's issuance and maintenance of the rules violated § 8(a)(1) and the disciplining of an employee for an infraction of them violated § 8(a)(3). 223 N.L.R.B. 1193 (1976). The Administrative Law Judge found that there were few places in which employees' § 7 rights effectively could be exercised, that petitioner had not offered any convincing evidence that the rule was necessary to prevent disruptions in patient care, and that, on balance, the rule was an unjustified infringement of § 7 rights. See 223 N.L.R.B., at 1198. The Board issued an order, paragraph 1 of which broadly required petitioner to cease and desist from interfering with "concerted union activities" and "exercise of [employees'] rights guaranteed in Section 7 of the Act," and paragraph 2(b) of which required petitioner to "[r]escind its written rule prohibiting distribution of union literature and union solicitation in its cafeteriaand coffeeshop." 223 N.L.R.B. at 1199, as modified, id., at 1193. 7 The Court of Appeals accepted as settled law that rules restricting employee solicitation during nonworking time, and distribution during nonworking time in nonworking areas are presumptively invalid in the absence of special circumstances to justify them, 554 F.2d 477, 480 (1977), and held that, since "[i]n this case, the application of the employer's no-solicitation, no-distribution rules to the cafeteria and coffee shop banned concerted activities in non-working areas during non-working time . . . [t]he burden, therefore, was on the hospital to show that special circumstances justified its curtailment of protected activities in these two places." Ibid. After review of the record, the court held that "the Board did not err in finding that the hospital had not justified its no-solicitation, no-distribution rule as it related to the cafeteria and coffee shop." Id., at 481. The court refused to enforce paragraph 1 of the Board's order, however, on the ground that no proclivity to violate the Act had been shown to support that broad cease-and-desist order. It also enforced paragraph 2(b) only after adding to the order the clarifying words "that part of" so that petitioner was required to "[r]escind that part of its written rule prohibiting distribution [of union literature and union solicitation in its cafeteria and coffeeshop]," id., at 482 (emphasis in original), to make clear that the validity of the rules as applied to areas outside the cafeteria and coffeeshop remained open. The Board has not sought review of the Court of Appeals' rulings in these respects.4 The narrow question for decision, therefore, is whether the Court of Appeals erred in enforcing the Board's order requiring petitioner to rescind the rules as applied to the hospital's eating facilities. Because of a suggested conflict among Courts of Appeals as to the validity of restrictions upon solicitation and distribution in patient-access areas of the hospital, such as petitioner's cafeteria and coffeeshop, we granted certiorari.5 434 U.S. 1033, 98 S.Ct. 764, 54 L.Ed.2d 780 (1978). We affirm. 8 * Although petitioner employs approximately 2,200 regular employees,6 only a fraction of them have access to many of the areas in which solicitation is permitted. Solicitation and distribution are not permitted in all locker areas. Rather, of the total number of locker areas only six separate and scattered locker areas containing 613 lockers are accessible to all employees for these purposes.7 Moreover, most of these rooms are divided and restricted on the basis of sex, and in any event are not generally used even by petitioner to communicate messages to employees. The cafeteria,8 on the other hand, is a common gathering room for employees. A 3-day survey conducted by petitioner revealed that 77% of the cafeteria's patrons were employees while only 9% were visitors and 1.56% patients. The cafeteria is also equipped with vending machines used by employees for snacks during coffeebreaks and other nonworking time. 9 Petitioner itself has recognized that the cafeteria is a natural gathering place for employees on nonworking time, for it has used and permitted use of the cafeteria for solicitation and distribution to employees for purposes other than union activity. For example, petitioner maintains an official bulletin board in the cafeteria for communicating certain messages to employees. On occasion it has set up special tables in or near the cafeteria entrance to aid solicitation of contributions for the United Way or United Fund charities, the Jewish Philanthropies Organization Drive, the Israel Emergency Fund, and to recruit members for the credit union. When petitioner embarked upon an intensive cost-reduction program, styled "Save a Buck a Day" or "BAD," it used the cafeteria to post banners and distribute informational literature touting the program to employees, and, significantly, generally did not use the locker rooms and restrooms for this purpose. In addition to these official uses, petitioner maintains an unofficial bulletin board in the cafeteria for the employees' use, a rack and small table which display commercial literature, such as travel brochures, and information of interest only to employees, such as carpool openings. 10 "[T]here are relatively few places where employees can congregate or meet on hospital grounds or in the nearby vicinity for the purpose of discussing nonwork related matters other than in the cafeteria; secondly, the area in the neighborhood of the hospital is congested and rovides no ready access to employees"; 223 N.L.R.B. at 1198 (opinion of Administrative Law Judge). Petitioner, moreover, has adopted the policy of refusing to make available to unions the names and addresses of employees unless ordered to do so by the Board. App. 33. Petitioner has also made antiunion statements in a newsletter distributed to employees with their paychecks at their work stations. 11 On October 25, 1974, Ann Schunior, a medical technician in the Department of Medicine, was distributing the union newsletter As We See It by circulating from table to table. She approached only persons she thought were employees, and if not sure of their employee status, inquired whether they were, explaining that she was distributing literature for employees. Petitioner's general director witnessed this activity, advised Schunior that she was violating the hospital's no-distribution rule, and demanded that she cease the distribution. A written warning notice was issued to Schunior the same day advising that she had been in flagrant violation of the hospital's rules and that further violations would result in dismissal. 223 N.L.R.B., at 1195-1196. The publication As We See It was objectionable to petitioner because certain issues were said to contain remarks which disparaged the hospital's ability to provide adequate patient care, primarily because of understaffing. Id., at 1196. II A. 12 We have long accepted the Board's view that the right of employees to self-organize and bargain collectively established by § 7 of the NLRA, 29 U.S.C. § 157, necessarily encompasses the right effectively to communicate with one another regarding self-organization at the jobsite.9 Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), articulated the broad legal principle which must govern the Board's enforcement of this right in the myriad factual situations in which it is sought to be exercised: 13 "[The Board must adjust] the undisputed right of self-organization assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments. Like so many others, these rights are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights in others may place upon employer or employee." Id., at 797-798, 65 S.Ct., at 985. 14 That principle was further developed in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), where the Court stated: 15 "Accommodation between [employee-organization rights and employer-property rights] must be obtained with as little destruction of one as is consistent with the maintenance of the other." Id., at 112, 76 S.Ct., at 684. 16 Based on its experience in enforcing the Act, the Board developed legal rules applying the principle of accommodation. The effect of these rules is to make particular restrictions on employee solicitation and distribution presumptively lawful or unlawful under § 8(a)(1) subject to the introduction of evidence sufficient to overcome the presumption. Thus, the Board has held that restrictions on employee solicitation during nonworking time, and on distribution during nonworking time in nonworking areas, are violative of § 8(a)(1) unless the employer justifies them by a showing of special circum stances which make the rule necessary to maintain product on or discipline.10 In the case of retail marketing establishments, including public restaurants, however, the Board has held that solicitation and distribution may be prohibited on the selling floor at all times.11 17 Republic Aviation Corp., supra, sustained the Board's general approach to adjudication of § 8(a)(1) charges. There we held that the Board is free to adopt, in light of its experience, a rule that, absent special circumstances, a particular employer restriction is presumptively an unreasonable interference with § 7 rights constituting an unfair labor practice under § 8(a)(1), without the necessity of proving the underlying generic facts which persuaded it to reach that conclusion. The validity of such a rule "[l]ike a statutory presumption or one established by regulation, . . . perhaps in varying degree, depends upon the rationality between what is proved and what is inferred." Republic Aviation, supra, 324 U.S., at 804-805, 65 S.Ct., at 988 (footnote omitted). The Board here relied on, and petitioner challenges, the fashioning of a similar presumption applicable to hospitals. B 18 Although, prior to the 1974 amendments, the Board had considered the validity of no-solicitation and no-distribution rules in the context of proprietary hospitals, no clear rule emerged from its decisions. In Summit Nursing & Convalescent Home, Inc., 196 N.L.R.B. 769 (1972), enf. denied, 472 F.2d 1380 (CA6 1973), a divided panel, reversing the Administrative Law Judge, held unlawful a rule prohibiting solicitation or distribution "at any time in the patient or public area within the [nursing] home, or in the nurses' stations." Another divided panel, in Guyan Valley Hospital, Inc., 198 N.L.R.B. 107 (1972), affirming the Trial Examiner, held lawful a rule prohibiting "soliciting in working areas during working hours." In Guyan Valley the Trial Examiner noted that the employer's rule did not interfere with "solicitation . . . in the waiting room, the employees' dining room, and the parking lot." Id., at 111. The Board apparently relied upon this fact to distinguish it from Summit Nursing, supra. See 198 N.L.R.B., at 107 n. 2. Finally, in Bellaire General Hospital, 203 N.L.R.B. 1105 (1973), the panel which had split in Summit Nursing, unanimously held unlawful a rule prohibiting solicitation and distribution "by employees while off duty or during working hours." 203 N.L.R.B., at 1108. 19 This series of somewhat inconclusive decisions was the background against which, after the 1974 amendments, the full Board considered development of a rule establishing the permissible reach of employer rules prohibiting solicitation and distribution in all health-care institutions. In a unanimous o inion, in St. John's Hospital & School of Nursing, Inc., 222 N.L.R.B. 1150 (1976), the Board concluded that the special characteristics of hospitals justify a rule different from that which the Board generally applies to other employers. On the basis of evidence and aided by the briefs amici curiae filed by the American Hospital Association and District 1199 of the National Union of Hospital and Health Care Employees, the Board found: 20 "that the primary function of a hospital is patient care and that a tranquil atmosphere is essential to the carrying out of that function. In order to provide this atmosphere, hospitals may be justified in imposing somewhat more stringent prohibitions on solicitation than are generally permitted. For example, a hospital may be warranted in prohibiting solicitation even on nonworking time in strictly patient care areas, such as the patients' rooms, operating rooms, and places where patients receive treatment, such as x-ray and therapy areas. Solicitation at any time in those areas might be unsettling to the patients—particularly those who are seriously ill and thus need quiet and peace of mind." Ibid. (emphasis added). 21 The Board concluded that prohibiting solicitation in such situations was justified and required striking the balance against employees' interests in organizational activity. The Board determined, however, that the balance should be struck against the prohibition in areas other than immediate patient-care areas such as lounges and cafeterias absent a showing that disruption to patient care would necessarily result if solicitation and distribution were permitted in those areas. The Board concluded, on a record devoid of evidence which contradicted that assessment, that the possibility of disruption to patient care in those areas must be deemed remote. III 22 Petitioner challenges the qualified extension of the rule affirmed in Republic Aviation to hospitals on several grounds: First, it argues that the Board's decision conflicts with the congressional policy evinced in the 1974 hospital amendments that the "self-organizational activities of health care employees not be allowed to 'disrupt the continuity of patient care.' " Brief for Petitioner 10. Second, it argues that the basis for that rule, the principle of limited judicial review of agency action, is inapposite here because the Board is acting outside of its area of expertise. Third, it argues that the Board's decision is unsupported by evidence and is irrational. Finally, it argues that it is irrational to distinguish between the nonemployee-access cafeteria involved here and the public-access restaurants in which the Board has upheld solicitation bans. A. 23 Contrary to petitioner's assertion, nothing in the legislative history of the 1974 amendments indicates a congressional policy inconsistent with the Board's general approach to enforcement of § 7 self-organizational rights in the hospital context. First, there is no reason to believe, as petitioner asserts, that Congress intended either to prohibit solicitation entirely in the health-care industry or to limit it to the extent the Board had required at the time the 1974 amendments were enacted. In extending coverage of the Act to nonprofit hospitals, Congress enacted special provisions for strike notice and mediation, applicable solely to the health-care industry, intended to avoid disruptions of patient care caused by strikes.12 It is significant that, although, as indicated, supra, at 494, at the time the 1974 amendments were enacted, the Board had spoken with neither clarity nor one voice on the issue, Congress did not enact any special provision regarding solicitation and distribution in particular or disruption of patient care in general other than through strikes. We can only infer, therefore, that Congress was satisfied to rely on the Board to continue to exercise the responsibility to strike the appropriate balance between the in erests of hospital employees, patients, and employers. 24 Second, nothing in the legislative history supports petitioner's argument that the particular approach to enforcement of § 7 rights in the hospital context adopted by the Board is inconsistent with congressional policy. The elimination of the nonprofit-hospital exemption reflected Congress' judgment that hospital care would be improved by extending the protection of the Act to nonprofit health-care employees.13 Congress found that wages were low and working conditions poor in the health-care industry, and that as a result, employee morale was low and employment turnover high.14 Congress deter mined that the extension of organizational and collective-bargaining rights would ameliorate these conditions and elevate the standard of patient care.15 Congress also found that "the exemption . . . had resulted in numerous instances of recognition strikes and picketing. Coverage under the Act should completely eliminate the need for such activity, since the procedures of the Act will be available to resolve organizational and recognition disputes." S.Rep.No. 93-766, p. 3 (1974), U.S.Code Cong. & Admin.News 1974, pp. 3946, 3948. 25 It is true, as petitioner argues, that Congress felt that "the needs of patients in health care institutions required special consideration in the Act . . . ," ibid., and that among the witnesses before the Committee on Labor and Public Welfare, "[t]here was a recognized concern for the need to avoid disruption of patient care wherever possible." Id., at 6, U.S.Code Cong. & Admin.News 1974, p. 3951. But these statements do not support petitioner's further contention that congressional policy establishes that the very fact that hospitals are involved justifies, without more, a restrictive no-solicitation rule the validity of which must be sustained unless the Board proves that patient care will not be disrupted. To begin with, the congressional statements quoted, when placed in context, offer no support for such an argument.16 Moreover, Congress addressed its concern for the unique problems presented by labor disputes in the health-care industry by adding specific strike-notice and mediation provisions designed to avert interruption in the delivery of critical health-care services; none expresses a policy in favor of curtailing self-organizational rights.17 Indeed, although Congress recognized that strikes could cause complete disruption of patient care and enacted provisions designed to forestall them, it apparently felt that extension of the right to strike was sufficiently important to fulfillment of its goals to permit strikes despite that result. If Congress was willing to countenance the total, albeit temporary, disruption of patient care caused by strikes in order to achieve harmonious employer-employee relations and long-term improved health care, we cannot say it necessarily regarded appropriately regulated solicitation and distribution in areas such as the cafeteria as undesirable without evidence of a substantial threat of harm to patients. In light of Congress' express finding that improvements in health care would result from the right to organize, and that unionism is necessary to overcome the poor working conditions retarding the delivery of quality health care, we therefore cannot say that the Board's policy—which requires that absent such a showing solicitation and distribution be permitted in the hospital except in areas where patient care is likely to be disrupted—is an impermissible construction of the Act's policies as applied to the health-care industry by the 1974 amendments. Even if the legislative history arguably pointed toward a contrary view, the Board's construction of the statute's policies would be entitled to considerable deference. NLRB v. Iron Workers, 434 U.S. 335, 350, 98 S.Ct. 651, 660, 54 L.Ed.2d 586 (1978); NLRB v. Weingarten, Inc., 420 U.S. 251, 266-267, 95 S.Ct. 959, 968, 43 L.Ed.2d 171 (1975). B 26 Petitioner disputes the applicability of the principle of limited judicial review of Board action generally and of the principle announced in Republic Aviation, regarding the Board's authority to fashion generalized rules in light of its experience, in particular, to the Board's decision involving hospitals. Arguing that the Board's conclusion regarding the likelihood of disruption to patient care which solicitation in a patient-access cafeteria would produce is essentially a medical judgment outside of the Board's area of expertise, it contends that the Board's decision is not entitled to deference. Rather, since it, not the Board, is responsible for establishing hospital policies to ensure the well-being of its patients, the Board may not set aside such a policy without specifically disproving the hospital's judgment that solicitation and distribution in the cafeteria would disrupt patient care. Brief for Petitioner 18. We think that this argument fundamentally misconceives the institutional role of the Board. 27 It is the Board on which Congress conferred the authority to develop and apply fundamental national labor policy. Because it is to the Board that Congress entrusted the task of "applying the Act's general prohibitory language in the light of the infinite combinations of events which might be charged as violative of its terms," Republic Aviation, 324 U.S., at 798, 65 S.Ct., at 985, that body, if it is to accomplish the task which Congress set for it, necessarily must have authority to formulate rules to fill the interstices of the broad statutory provisions. It is true that the Board is not expert in the delivery of health-care services, but neither is it in pharmacology, chemical manufacturing, lumbering, shipping, or any of a host of varied and specialized business enterprises over which the Act confers jurisdiction. But the Board is expert in federal national labor relations policy, and it is in the Board, not petitioner, that the 1974 amendments vested responsibility for developing that policy in the health-care industry. It is not surprising or unnatural that petitioner's assessment of the need for a particular practice might overcompensate its goals, and give too little weight to employee organizational interests. Here, as in many other contexts of labor policy, "[t]he ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review." NLRB v. Truck Drivers, 353 U.S. 87, 96, 77 S.Ct. 643, 648, 1 L.Ed.2d 676 (1957). The judicial role is narrow: The rule which the Board adopts is judicially reviewable for consistency with the Act, and for rationality, but if it satisfies those criteria, the Board's application of the rule, if supported by substantial evidence on the record as a whole, must be enforced.18 NLRB v. Erie Resistor Corp., 373 U.S. 221, 235-236, 83 S.Ct. 1139, 1149, 10 L.Ed.2d 308 (1963); Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271 (1941). C 28 Petitioner's contention that the Board's decision is unsupported by evidence and irrational is without merit. Notwithstanding petitioner's challenge, the Board's conclusion that "the possi ility of any disruption in patient care resulting from solicitation or distribution of literature is remote," St. John's Hospital & School of Nursing, Inc., 222 N.L.R.B., at 1151, as applied to petitioner's cafeteria, is fully supported by the record. The Board had before it evidence that patients' meals are provided in their rooms. A patient is not allowed to visit the cafeteria unless his doctor certifies that he is well enough to do so. Thus, patient use of the cateteria, is voluntary, random, and infrequent. It is of critical significance that only 1.56% of the cafeteria's patrons are patients. Patients who frequent the cafeteria would not expect to receive special attention or primary care there and any unusually sensitive to seeing union literature distributed or overhearing discussions about unionism, readily could avoid the cafeteria without interfering with the hospital's program of care. Especially telling is the fact that petitioner, under compulsion of the Massachusetts Labor Commission, permitted limited union solicitation in the cafeteria for a significant period, apparently without untoward effects, and that petitioner, who logically is in the best position to offer evidence on the point, was unable to introduce any evidence to show that solicitation or distribution was or would be harmful.19 29 There was also cogent evidence that petitioner itself recognized that at least some solicitation and distribution would not upset patients and undermine its function of providing quality medical care. It thus appears that petitioner's rule was more restrictive than necessary to avert that result.20 Petitioner had permitted use of the cafeteria for other types of solicitation, including fund drives, which, if not to be equated with union solicitation in terms of potential for generating controversy, at least indicates that the hospital regarded the cafeteria as sufficiently commodious to admit solicitation and distribution without disruption.21 While in other contexts, it has been recognized that organizational activity can result in behavior which, as petitioner argues and we agree, would be undesirable in the hospital's cafeteria,22 the Board has not foreclosed the hospital from imposing less restrictive means of regulating organizational activity more nearly directed toward the harm to be avoided.23 30 The Board was, of course, free to draw an inference from these facts in light of its experience, the validity of which "depends upon the rationality between what is proved and what is inferred."24 Republic Aviation, 324 U.S., at 805, 65 S.Ct., at 989 (footnote omitted). It cannot fairly be said that the inference drawn by the Board regarding the likelihood of disruption of patient care in light of this evidence was irrational. 31 Similarly, it is the Board upon whom the duty falls in the first instance to determine the relative strength of the conflicting interests and to balance their weight. As the Court noted in Hudgens v. NLRB, 424 U.S. 507, 522, 96 S.Ct. 1029, 1038, 47 L.Ed.2d 196 (1976), "[t]he locus of [the] accommodation [between the legitimate interests of both] may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context." Here, the employees' interests are at their strongest, for unlike the interests involved in NLRB v. Babcock & Wilcox Co., 351 U.S., at 113, 76 S.Ct., at 684, "[the] activity was carried on by employees already rightfully on the employer's property." Hudgens, 424 U.S., at 521-522, n. 10, 96 S.Ct., at 1037. "[T]he employer's management interests rather than his property interests [are] involved. . . . This difference is 'one of substance.' " Ibid. (citations omitted). 32 On the other hand, in the context of health-care facilities, the importance of the employer's interest in protecting patients from disturbance cannot be gainsaid. While outside of the health-care context, the availability of alternative means of communication is not, with respect to employee organizational activity, a necessary inquiry, see Babcock & Wilcox supra, 351 U.S., at 112-113, 76 S.Ct., at 684, it may be that the importance of the employer's interest here demands use of a more finely calibrated scale. For example, the availability of one part of a health-care facility for organizational activity might be regarded as a factor required to be considered in evaluating the permissibility of restrictions in other areas of the same facility. That consideration is inapposite here, however, where the only areas in which organizational rights are permitted is not conducive to their exercise. Moreover, the area in which organizational rights are sought here is a "natural gathering are[a]" for employees, 554 F.2d, at 481, and one in which the risk of harm to patients is relatively low as compared to potential alternative locations within the facility. On the basis of the record before it, we cannot say that the Board, in evaluating the relative strength of the competing interests, failed to consider any factor appropriately to be taken into account. Cf. Babcock & Wilcox, supra. D 33 Petitioner's argument that it is irrational to hold, as the Board has, on the one hand, that a rule prohibiting solicitation in the dining area of a public restaurant is lawful because solicitation has the tendency to upset patrons,25 while one prohibiting like activity in a hospital's cafeteria is unlawful absent evidence that nonemployee patrons would be upset, on the other, has only superficial appeal. That argument wholly fails to consider that the Board concluded that these rules struck the appropriate balance between organizational and employer rights in the particular industry to which each is applicable. In the retail marketing and restaurant industries, the primary purpose of the operation is to serve customers, and this is done on the selling floor of a store or in the dining area of a restaurant. Employee solicitation in these areas, if disruptive, necessarily would directly and substantially interfere with the employer's business. On the other hand, it would be an unusual store or restaurant which did not have stockrooms, kitchens, and other nonpublic areas, and in those areas employee solicitation of nonworking employees must be permitted. In that context, the Board concluded that, on balance, employees' organizational interests do not outweigh the employer's interests in prohibiting solicitation on the selling floor. 34 In the hospital context the situation is quite different. The main function of the hospital is patient care and therapy and those functions are largely performed in areas such as operating rooms, patients' rooms, and patients' lounges. The Board does not prohibit rules forbidding organizational activity in these areas. On the other hand, a hospital cafeteria, 77% of whose patrons are employees, and which is a natural gathering place for employees, functions more as an employee-service area than a patient-care area. While it is true that the fact of access by visitors and patients renders the analogy to areas such as stockrooms in retail operations less than complete, it cannot be said that when the primary function and use of the cafeteria, the availability of alternative areas of the facility in which § 7 rights effectively could be exercised, and the remoteness of interference with patient care are considered, it was irrational to strike the balance in favor of § 7 rights in the hospital cafeteria and against them in public restaurants. The Board's explanation of the consistent principle underlying the different results in each situation cannot fairly be challenged. St. John's Hospital & School of Nursing, Inc., 222 N.L.R.B., at 1150-1151, n. 3. IV 35 In summary, we reject as without merit petitioner's contention that, in enacting the 1974 health-care amendments, Congress intended the Board to apply different principles regarding no-solicitation and no-distribution rules to hospitals because of their patient-care functions. We theref re hold that the Board's general approach of requiring health-care facilities to permit employee solicitation and distribution during nonworking time in nonworking areas, where the facility has not justified the prohibitions as necessary to avoid disruption of health-care operations or disturbance of patients, is consistent with the Act. We hold further that, with respect to the application of that principle to petitioner's cafeteria, the Board was appropriately sensitive to the importance of petitioner's interest in maintaining a tranquil environment for patients. Insofar as petitioner's challenge is to the substantiality of the evidence supporting the Board's conclusions, this Court's review is, of course, limited. "Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied." Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951). We cannot say that the Court of Appeals' assessment of the record either "misapprehended" or "grossly misapplied" that standard. The Court of Appeals did note, however, that the Board's guidelines are still in flux and are far from self-defining, concluding, and we agree: 36 "[T]he Board [bears] a heavy continuing responsibility to review its policies concerning organizational activities in various parts of hospitals. Hospitals carry on a public function of the utmost seriousness and importance. They give rise to unique considerations that do not apply in the industrial settings with which the Board is more familiar. The Board should stand ready to revise its rulings if future experience demonstrates that the well-being of patients is in fact jeopardized." 554 F.2d, at 481. 37 The authority of the Board to modify its construction of the Act in light of its cumulative experience is, of course, clear. NLRB v. Iron Workers, 434 U.S., at 351, 98 S.Ct., at 660; NLRB v. Weingarten, Inc., 420 U.S., at 265-267, 95 S.Ct., at 967-968. 38 Affirmed. 39 Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, concurring in the judgment. 40 I concur only in the result the Court reaches here, for I, too, agree with much that Mr. Justice POWELL says in his separate opinion. 41 There is, of course, a certain irony when the Board grants protection from solicitation to the retail store and to the Burger Chef and the Hot Shoppe cafeteria, but at the same time denies it to the hospital restaurant facility where far more than mere commercial interests are at stake. Patients and their concerned families are not to be treated as impersonal categories or classes. They are individuals with problems that ought not be subject to aggravation. Nevertheless, on this record, as the Court's opinion reveals, it would have been difficult for the Board to reach a different result, when it utilized, questionably in my view, the rule of Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), even as perhaps modified for application in the hospital setting. 42 The tenor of the Court's opinion and of the Board's approach concerns me. There are many hospital coffeeshops and cafeterias that are primarily patient and patient-relative oriented, despite the presence of employee patrons, far more so than this very restricted Beth Israel operation, that seems akin to a manufacturing plant's employees' cafeteria. I fear that this unusual case will be deemed to be an example for all hospital eating-facility cases, and that the Board and the courts now will go further down the open-solicitation road than they would have done, had a more usual hospital case been the one first to come here. Hospitals, after all, are not factories or mines or assembly plants. They are hospitals, where human ailments are treated, where patients and relatives alike often are under emotional strain and worry, where pleasing and comforting patients are principal facets of the day's activity, and where the patient and his family—irrespective of whether that patient and that family are labor or management oriented—need a restful, uncluttered, relaxing, and helpful atmosphere, rather than one remindful of the tensions of the marketplace in addition to the tensions of the sick bed. 43 I entertain distinct doubts about whether the Board, in its preoccupation with labor-management problems, has properly sensed and appreciated the true hospital operation and its atmosphere and the institution's purpose and needs. I earnestly share the caveat pronounced by the Court of Appeals, and reproduced by the Court in the next-to-the-last paragraph of its opinion, ante, at 2477, and I sincerely hope that the Board bears that heavy responsibility in mind when it considers other hospital cases that come before it for decision. 44 Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, concurring in the judgment. 45 In Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), this Court approved the reasoning of the National Labor Relations Board in Peyton Packing Co., 49 N.L.R.B. 828 (1943), enf'd, 142 F.2d 1009 (CA5), cert. denied, 323 U.S. 730, 65 S.Ct. 66, 89 L.Ed. 585 (1944), and the balance it struck in adjusting the respective rights of industrial employers and employees. The Court also endorsed the Board's formulation: Because working time is for work, a rule prohibiting union solicitation during working time " 'must be presumed to be valid in the absence of evidence that it was adopted for a discriminatory purpose' "; but during nonworking time, when an employee's time is his own even though he is on company property, a rule prohibiting union solicitation " 'must be presumed to be an unreasonable impediment to self-organization and therefore discriminatory in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline.' " 324 U.S., at 803-804, n. 10, 65 S.Ct., at 988 (quoting Peyton Packing Co., supra, at 843-844). 46 The Republic Aviation rule is inapplicable in the instant case, which arises from a setting entirely different from the one in which the rule was formulated. I concur in the judgment of the Court, however, because I regard the Board's decision as based on substantial evidence even without the assistance of the Republic Aviation presumption. 47 * The rule of Republic Aviation was adopted in the context of labor relations in industrial and manufacturing plants, where third parties unconnected with labor or management generally are not involved. In such a setting, it is relatively simple to divide the work environment into the two spheres defined in Peyton Packing. During working time an employer's prohibition of solicitation and distribution may be presumed valid, because "[w]orking time is for work"; but during nonworking time or in nonworking areas, such rules are presumptively invalid. The latter part of the Board's set of presumptions reflects the reasonable inference, based on the Board's experience with the actual facts of industrial life, that such employers ordinarily will not have legitimate reasons to restrict employees' activities on their own time, even if on company property. In sustaining the Board's presumption, this Court recounted its development and said: 48 "We perceive no error in the Board's adoption of this presumption. The Board had previously considered similar rules in industrial establishments and the definitive form which the Peyton Packing Company decision gave to the presumption was the product of the Board's appraisal of normal conditions about industrial establishments. Like a statutory presumption or one established by regulation, the validity, perhaps in a varying degree, d pends upon the rationality between what is proved and what is inferred." 324 U.S., at 804-805, 65 S.Ct., at 988 (footnotes omitted; emphasis supplied). 49 The rationality found to exist in Republic Aviation, and therefore the validity of the presumption, cannot be transferred automatically to other workplaces, for to do so would sever the connection between the inference and the underlying proof. The Court's approval of the Republic Aviation rule was based explicitly on the Board's considered appraisal of "normal conditions about industrial establishments."1 Conditions in industrial or manufacturing plants differ substantially from conditions in sales and service establishments where employees and members of the public mingle. 50 When confronted with the problem of retail-establishment rules prohibiting solicitation and distribution, the Board wisely refrained from mechanically applying the Republic Aviation rule when its justification was absent. The Board recognized that in the setting of a retail establishment, an employer well might have legitimate reasons for prohibiting solicitation and distribution on the selling floor and in other areas where customers are likely to be present.2 In the retail-store cases, the Board weighed the respective interests of the employer and the employees and concluded that the employer's rule was reasonable in view of the extent of the public's presence on the premises, the relationship between the public and the employees, and the fact that the employer's main business, consisting of direct selling to customers, would be disrupted. The same conclusion was reached with respect to a public restaurant on the premises of a retail store when on-duty and off-duty employees were "in close contact with each other" and with customers, on the theory that under such circumstances, union solicitation would be "as apt to disrupt the [employer's] business as . . . solicitation carried on in any other portion of the store in which customers are present." Goldblatt Bros., Inc., 77 N.L.R.B. 1262, 1264 (1948). See also McDonald's Corp., 205 N.L.R.B. 404, 408 (1973).3 51 In my view, the presence of patients and members of the public in the hospital cafeteria removes the case from the framework est blished in Republic Aviation, just as the presence of customers has that effect in the Board's retail-establishment cases. The hospital's function in serving patients, their families, and visitors is much like the retail establishment's function in serving its customers. That a nonprofit hospital does not share the profit motive of a retail establishment does not diminish the hospital employer's professional concern for the welfare of those in its care, including not only patients but also their friends and relatives who come to visit. 52 It is true that the hospital's primary function is carried out in the immediate patient-care areas, just as the retail establishment's main function is carried out on the selling floor. But the Board has applied its retail-store rules to public restaurants on the premises of the retail store, see supra, at 512, notwithstanding the fact that the primary selling function does not take place there. Public restaurants in retail stores are provided for some of the reasons that hospitals maintain public eating places—including the convenience of the establishment's patrons. In addition, a hospital's more general purpose extends to, and pervades, all areas of the hospital to which the public has access; it is not limited narrowly to the provision of technical medical treatment.4 Part of the hospital's function is to provide a "total environment . . . where the medical needs of patients are served by maintaining a climate free of strife and controversy." NLRB v. Baptist Hospital, Inc., 576 F.2d 107, 110 (CA6 1978). In this respect, the Board should take greater account of the impact of solicitation in this sensitive area than it does with respect to retail establishments. A presumption developed in and geared to the context of industrial establishments, which the Board has declined to apply to retail stores, simply has no relevance to hospitals. II 53 The Board contends that it has effected a proper accommodation of the competing interests in St. John's Hospital & School of Nursing, Inc., 222 N.L.R.B. 1150 (1976), enf. granted in part and denied in part, 557 F.2d 1368 (CA10 1977), in which it applied the basic rule of Republic Aviation but found "sufficient justification" for curtailment of employee rights in certain areas of the hospital.5 Acknowledging that the "primary function of a hospital is patient care and that a tranquil atmosphere is essential to the carrying out of that function," the Board concluded in St. John's that "hospitals may be justified in imposing somewhat more stringent prohibitions on solicitation than are generally permitted." Accordingly, a hospital might prohibit solicitation in "strictly patient care areas," such as "patients' rooms, operating rooms, and places where patients receive treatment"; but not in other areas of the hospital, even those to which patients and visitors have access. 222 N.L.R.B., at 1150-1151. 54 In my view, the Board's "accommodation" of the competing interests in St. John's fails to give appropriate weight to the unique characteristics of a hospital. It amounts to no more than an application of the Republic Aviation rule to certain areas of a hospital but not others, despite the fact that members of the public are present and potentially affected even in areas of a hospital not characterized as "strictly patient care" areas. I believe that the Tenth Circuit was correct in refusing to accord the St. John's presumption the kind of deference that was accorded the Republic Aviation presumption when applied in the industrial setting. I would hold that the potential impact on patients and visitors of union solicitation and distribution of literature in hospitals requires the Board to make a far more sensitive inquiry into the actual circumstances of each case. 55 Once the Board is deprived of the presumption of invalidity of an employer's rule, it must establish by substantial evidence on the record as a whole that the employer has violated §§ 8(a)(1) and 8(a)(3). On the facts of this case, I would hold that the Board has carried its burden. 56 The Board must reach an accommodation between the respective rights of employer and employees "with as little destruction of one as is consistent with the maintenance of the other." NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1956); see Eastex, Inc. v. NLRB, 437 U.S. 556, 98 S.Ct. 2505, 57 L.Ed.2d 428 (1978); Hudgens v. NLRB, 424 U.S. 507, 521-523, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976); Central Hardware Co. v. NLRB, 407 U.S. 539, 542-545, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972). "The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and [the employer's] rights asserted in any given context." Hudgens, supra, 424 U.S., at 522, 96 S.Ct., at 1038. In this case, the employer's asserted concern is with the welfare of patients and their visitors, a particularly weighty "management" interest. In accommodating the interests of employer and employees in a hospital case, the Board must recognize the employer's responsibility for the welfare of patients and other third parties present in the hospital.6 57 Yet in view of the facts in this case, which either are stipulated or largely undisputed, I think the Board has met its burden by substantial evidence. As found by the Administrative Law Judge, use of the hospital cafeteria by employees is substantial (77%), while use by patients is negligible (1.56%) and use by the general public is relatively low (under 10%). The cafeteria is predominantly the employees' facility, and there hardly is any other area of the hospital in which employees may communicate with each other while at the hospital. The parties stipulated that the only areas where employees can gather are the locker areas and restrooms, and only 613 of the 2,200 employees' lockers are accessible to all employees.7 58 In addition to the unavailability of other convenient places for employee communication, cf. Babcock & Wilcox, supra, 351 U.S., at 112-113, 76 S.Ct., 679, the facts show that the hospital cafeteria is used by both the employer and employees for a variety of commercial and noncommercial notices and solicitations. And while the hospital was concerned about the disruptive effect on patients of employees' conversations about the medical progress of particular patients, it implemented only a precatory rule, not an outright prohibition of all such conversations in the cafeteria. See ante, at 502-503 n. 20. 59 The hospital failed to introduce any evidence of a reasonable possibility of harmful consequences to patients or visitors. It relied primarily on arguments with respect to hospitals in general. No testimony was introduced that the practice at Beth Israel is to seek early rehabilitation of patients by encouraging them to leave their rooms at the earliest time compatible with their condition, and to move about the hospital. The further weakness in petitioner's case is that it introduced no medical testimony that related such practices and needs to its cafeteria.8 Putting it differently, the undisputed evidence portrays this cafeteria as being one essentially operated for employees as their primary gathering place, and as almost wholly unrelated to patient care. 60 In sum, I view this case as essentially barren of the type of evidence that could be produced on behalf of many hospitals when confronted with a similar problem. See, e. g., NLRB v. Baptist Hospital, Inc., 576 F.2d 107 (CA6 1978). My concurrence in the judgment is based entirely on the facts, as I disagree—for the reasons above stated—with the rationale of the Board, its reliance upon a wholly inappropriate presumption, and its unrealistic distinction between hospital and retail-store cafeterias. I also note that the Court emphasizes the facts of this case, and the "critical significance [of the fact] that only 1.56% of the cafeteria's patrons are patients." Ante, at 502.9 1 Coverage was achieved by deleting from the definition of "employer" in § 2(2) of the Act, 29 U.S.C. § 152(2), the provision that an employer shall not include "any corporation or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual . . .." Act of June 23, 1947, ch. 120, 61 Stat. 136. 2 The July 1974 rule was in effect at the time the complaint was filed. Prior to the hearing before the Administrative Law Judge, however, the Board amended its complaint to encompass the March 6, 1975, policy which prohibited all solicitation and distribution in the cafeteria. 3 The charges leading to the complaint were filed by Massachusetts Hospital Workers' Union, Local 880, Service Employees International Union, AFL-CIO. 4 Petitioner's application of the rules to other areas not devoted to immediate patient care has since been litigated before the Board in another case. Beth Israel Hospital, 228 N.L.R.B. 1495, 95 LRRM 1087 (1977). 5 The Court of Appeals in this case, and the Court of Appeals for the Seventh Circuit, Lutheran Hosp. v. NLRB, 564 F.2d 208 (1977), cert. pending 435 U.S. 941, 98 S.Ct. 1519, 55 L.Ed.2d 537, have enforced Board orders protecting solicitation and distr bution in cafeterias and coffeeshops. In Lutheran Hospital, the order enforced extended beyond cafeterias to all areas other than "immediate patient care areas." The Court of Appeals for the Tenth Circuit, St. John's Hospital & School of Nursing, Inc. v. NLRB, 557 F.2d 1368 (1977), together with the Courts of Appeals for the District of Columbia and Sixth Circuits, have denied enforcement to similar Board orders applicable to cafeterias as well as to other patient-access areas. Baylor Univ. Medical Center v. NLRB, 188 U.S.App.D.C. 109, 578 F.2d 351 (1978); NLRB v. Baptist Hospital, Inc., No. 76-1675, 576 F.2d 107 (CA6 1978). 6 This number is exclusive of house staff, attending physicians, students, and employees of Harvard University who work at the hospital. App. 28. 7 There are four categories of locker rooms. The first, in which there are a total of 613 lockers, are areas in which any employee may engage in solicitation and distribution. The second, in which there are a total of 470 lockers, are areas in which, for security reasons, only the employees to whom the lockers have been assigned have access. The other two categories which comprise the remainder of the hospital's lockers are off limits to solicitation and distribution because they are located in working areas or in areas in which patients or the general public have access. 223 N.L.R.B. 1193, at 1197 (1976). App. 127-134. 8 During the pendency of this litigation, the coffeeshop was dismantled, and the space added to the cafeteria. 9 We recently reiterated this principle in Central Hardware Co. v. NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972): "[Section 7] organization rights are not viable in a vacuum; their effectiveness depends in some measure on the ability of employees to learn the advantages and disadvantages of organization from others. Early in the history of the administration of the Act the Board recognized the importance of freedom of communication to the free exercise of organization rights." Id., at 542-543, 92 S.Ct., at 2241 (citation omitted). 10 The Board's solicitation rule was first announced in Peyton Packing Co., 49 N.L.R.B. 828, 843 (1943). The Board's decision in LeTourneau Co. of Ga., 54 N.L.R.B. 1253 (1944), which applied the presumption to a no-distribution rule enforced against employee organizers distributing literature in the employer's parking lot, was affirmed with Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), without separate discussion. In Stoddard Quirk Mfg. Co., 138 N.L.R.B. 615 (1962), however, the Board established the distinction between distribution and solicitation, limiting the presumption as applicable to distribution only in nonworking areas. For purposes of that rule, the Board considers the distribution of signature cards to be solicitation and not distribution. See id., at 620 n. 6. 11 See Marriott Corp. (Children's Inn), 223 N.L.R.B. 978 (1976); Bankers Club, Inc., 218 N.L.R.B. 22 (1975); McDonald's Corp., 205 N.L.R.B. 404 (1973); Marshall Field & Co., 98 N.L.R.B. 88 (1952), enf'd, 200 F.2d 375 (CA7 1953); Goldblatt Bros., Inc., 77 N.L.R.B. 1262 (1948); May Dept. Stores Co., 59 N.L.R.B. 976 (1944), enf'd as modified, 154 F.2d 533 (CA8 1946). 12 Section 1(b) of the 1974 Act, 88 Stat. 395, amended § 2 of the NLRA by adding a definition of "health care institution" to which the special provisions would be applicable. Section 1(d), 88 Stat. 396, amended the notice provisions of § 8(d) of the NLRA by requiring, with respect to health-care institutions, 90-day notice of termination or expiration of a contract, 60-day notice to the Federal Mediation and Conciliation Service (FMCS) of contract termination or expiration, and 30-day notice to FMCS with respect to initial contract negotiation disputes arising after recognition, and by requiring that the health-care institution and the labor organization participate in mediation at the direction of the FMCS. Section 1(e), 88 Stat. 396, added a new § 8(g) to the NLRA, requiring labor organizations to give a 10-day written notice to the health-care institution and to FMCS before engaging in picketing, strikes, or other concerted refusals to work. Section 2 of the 1974 Act added a new § 213 to the Labor Management Relations Act, 1947, 29 U.S.C. § 183 (1970 ed., Supp. V), which authorizes upon certain conditions the constitution of a Special Board of Inquiry to investigate and report concerning the labor dispute. For a more detailed explanation of these provisions, see Vernon, Labor Relations in the Health Care Field under the 1974 Amendments to the National Labor Relations Act, 70 Nw.U.L.Rev. 202 (1975). 13 See id., at 203-204. 14 See, e. g., the remarks of Senator Cranston, the floor manager of the bill: "During the last 21/2 years, hospital wage increases have lagged far behind those received by workers in other industries. . . . "Today, hospital workers are still notoriously underpaid. . . . "The long hours worked and the small monetary reward received by hospital workers result in a constant turnover with a consequent threat to the maintenance of an adequate standard of medical care. This was emphasized over and over again by many of the witnesses. Turnover rates for employees in several hospitals that were studied were reported by witnesses to be as high as 1,200 to 1,500 [percent] a year. "Mr. President, both management and union witnesses reported lower turnover after unionization than before. . . . [T]he turnover rates at the two hospitals which had been 1,200 to 1,500 percent a year before unionization dropped to 24 to 30 percent a year after unionization. Indeed it has been convincingly argued that when hospital employees are unionized . . . the result is better job stability and security than is possible without such collective bargaining arrangements. This will also mean a better job done in terms of the quality of patient care provided. "Mr. President, I urge all those who want improved health care and increased stability for labor-management relations in health care institutions to support this bill." 120 Cong.Rec. 12936-12938 (1974). 15 See ibid.; id., at 16899-16900 (remarks of Rep. Thompson). 16 The statements in full are as follows: "In the Committee's deliberations on this measure, it was recognized that the needs of patients in health care institutions required special consideration in the Act including a provision requiring hospitals to have sufficient notice of any strike or picketing to allow for appropriate arrangements to be made for the continuance of patient care in the event of a work stoppage." S.Rep.No. 93-766, p. 3 (1974), U.S.Code Cong. & Admin.News 1974, p. 3948. "PRIORITY CASE HANDLING "Many of the witnesses before the Committee, including both employee and employer witnesses, stressed the uniqueness of health care institutions. There was a recognized concern for the need to avoid disruption of patient care wherever possible. "It was this sensitivity to the need for continuity of patient care that led the Committee to adopt amendments with regard to notice requirements and other procedures related to potential trikes and picketing. * * * * * "Because of the need for continuity of patient care, the Committee expects the NLRB to give special attention and priority to all charges of employer, employee and labor organization unfair practices involving health care institutions consistent with [existing priorities]." Id., at 6-7, U.S.Code Cong. & Admin.News 1974, p. 3951. 17 See n. 12, supra. 18 See § 10(e), NLRA, 29 U.S.C. § 160(e); Administrative Procedure Act, 5 U.S.C. § 706(2)(E) (1976 ed.); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). 19 Cf. International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 439, 478 F.2d 615, 643 (1973). 20 Evidence that petitioner adopted a less restrictive approach to behavior in the cafeteria which would be at least as disquieting to patients as union solicitation further supports the Board's conclusion that the risk of harm to patients is not so great as to justify an unlimited restriction. Petitioner advised its professional staff of complaints voiced by patients and visitors based on overheard clinical discussions about named patients in such places as the cafeteria line. Petitioner warned that the "effect [of this on patients] can be devastating . . . ," App. 136, and that "[p]atients and visitors [have been] horrified to overhear—in . . . cafeteria lines . . .—what is to the engrossed clinician innocuous professional discussion." Id., at 138. This kind of discussion, far more unsettling than talk of wages and working conditions, was not banned from the cafeteria; rather, petitioner merely required staff to "restrict the voicing of your clinical discussions to include none other than your intended audience." Ibid. 21 Compare Goldblatt Bros., Inc., 77 N.L.R.B. 1262 (1948), in which, explaining its decision to uphold a ban on solicitation in a department store restaurant, the Board noted: "[I]n some of the stores the restaurant consists of a counter, in which restaurant employees on duty, other employees off duty, union organizers, and customers are in close contact with each other. Under these circumstances, union solicitation in the restaurants is as apt to disrupt the Respondent's business as is such solicitation carried on in any other portion of the store in which customers are present." Id., at 1263-1264. 22 See, e. g., McDonald's Corp., 205 N.L.R.B., at 407 n. 18 (opinion of Administrative Law Judge) ("Some solicitation might result in a pleasant and informative chat between the employees on their nonwork time in working areas. On the other hand, it might lead to a bitter exchange of insults or worse . . ."). 23 For example, a rule forbidding any distribution to or solicitation of nonemployees would do much to prevent potentially upsetting literature from being read by patients. Petitioner, in fact, has such a rule, see supra, at 486-487, and it has not been shown that organizational activity by Schunior or anyone else actually resulted in distribution to nonemployees. This rule could be readily enforced at petitioner's hospital, moreover, since employees are required to wear name tags—and many do—and since security guards monitor the cafeteria. Secondly, the Board may determine that a rule requiring face-to-face distribution rather than leaving literature on a table accessible to all is a justified accommodation of § 7 rights with petitioner's legitimate desire to avoid having potentially upsetting literature read by patients. 24 The requirement that decisions be supported by evidence on the record "does not go beyond the necessity for the production of evidential facts, however, and compel evidence as to the results which may flow from such facts. . . . An administrative agency with power after hearings to determine on the evidence in adversary proceedings whether violations of statutory commands have occurred may infer within the limits of the inquiry from the proven facts such conclusions as reasonably may be based upon the facts proven. One of the purposes which lead to the creation of such boards is to have decisions based upon evidential facts under the particular statute made by experienced officials with an adequate appreciation of the complexities of the subject which is entrusted to their administration." Republic Aviation, 324 U.S., at 800, 65 S.Ct., at 986. (Citations omitted.) 25 See cases cited n. 11, supra. 1 Even the formulation of the "special circumstances" rule is stated in terms of the specific environment of an industrial plant, speaking of circumstances making a restriction on employee activity " 'necessary in order to maintain production or discipline.' " 324 U.S., at 803-804, n. 10, 65 S.Ct., at 988. 2 See Marriott Corp. (Children's Inn), 223 N.L.R.B. 978 (1976); Bankers Club, Inc., 218 N.L.R.B. 22 (1975); McDonald's Corp., 205 N.L.R.B. 404 (1973); Marshall Field & Co., 98 N.L.R.B. 88 (1952), enf'd, 200 F.2d 375 (CA7 1953); Goldblatt Bros., Inc., 77 N.L.R.B. 1262 (1948); May Dept. Stores Co., 59 N.L.R.B. 976 (1944), enf'd as modified, 154 F.2d 533 (CA8), cert. denied, 329 U.S. 725, 67 S.Ct. 72, 91 L.Ed. 627 (1946). 3 The Board's retail-establishment cases might be interpreted as instances in which the Board concluded that the Republic Aviation presumption had been rebutted by the employer's proof of "special circumstances." The special circumstances would be created by the "presence [of customers] and the likelihood of their being exposed to union activities." Bankers Club, Inc., supra, at 27. But even if this were the correct formulation—that the Republic Aviation presumption applies to retail establishments but is rebutted by proof of the presence of members of the public in areas where solicitation takes place—that test would be satisfied in all retail-establishment cases as well as in the instant case. The result would be the same as if the presumption did not apply at all. After special circumstances had been shown, the Board then would have to determine the proper balance between employees' rights and the employer's interests. 4 Thus, while the Board has distinguished between selling and certain nonselling areas of department stores, and has applied the presumption of invalidity to no-solicitation rules in some nonselling public areas, see Marshall Field & Co., supra, at 92-93, a similar line may not be drawn so easily between patient-care and nonpatient-care areas of a hospital. As the Court of Appeals for the Tenth Circuit observed in denying enforcement to the Board's attempt to divide the areas of a hospital, "the ultimate factual inferences on which the Board's distinction [is] based were drawn not from the record evidence but rather from the Board's own perceptions of modern hospital care and the physical, mental, and emotional conditions of hospital patients—areas outside the Board's acknowledged field of expertise in labor/management relations." St. John's Hospital & School of Nursing, Inc. v. NLRB, 557 F.2d 1368, 1373 (1977). 5 Both the parties and the court in St. John's started from the premise that the Republic Aviation rule appl ed. The Court of Appeals disagreed, however, with the Board's assessment that special circumstances justified the hospital's restriction only in "immediate" patient-care areas. 6 This, of course, is consistent with Congress' concern, in enacting the 1974 health-care amendments, "for the need to avoid disruption of patient care wherever possible." S.Rep.No.93-766, p. 6 (1974), U.S.Code Cong. & Admin.News 1974, p. 3951. 7 The Administrative Law Judge also found that the urban location of the hospital and the widely dispersed residences of hospital employees make communication outside the hospital difficult. In addition, petitioner would not provide the union with a list of employees' names and addresses. "The place of work is a place uniquely appropriate for dissemination of views concerning the bargaining representative and the various options open to the employees," NLRB v. Magnavox Co., 415 U S. 322, 325, 94 S.Ct. 1099, 1102, 39 L.Ed.2d 358 (1974); see Eastex, Inc. v. NLRB, 437 U.S. 556, 574, 98 S.Ct. 2505, 2517, 57 L.Ed.2d 428 (1978), and the hospital cafeteria was the most appropriate place for such communication on the facts of this case. 8 Rather, the employer rested on the allegedly inflammatory nature of a union newsletter distributed by one employee, without introducing any evidence that the newsletter had fallen or would fall into the hands of patients or visitors. Furthermore, proof of such a probability would not be relevant to the no-solicitation portion of the hospital's rule. The hospital allowed one-to-one solicitation in the cafeteria until after the initiation of these proceedings; yet petitioner was "unable to show any instance of injury to patients" while that more permissive rule was in effect. 223 N.L.R.B. 1193, 1197 (1976). 9 Moreover, the Court's opinion expresses no view as to the validity of prohibiting employee solicitation or distribution in other areas of a hospital which may not be devoted "strictly" or "immediately" to patient care but to which patients and visitors have access. This question was not presented in this case.

67

437 U.S. 535 98 S.Ct. 2493 57 L.Ed.2d 411 Wes WISE, Mayor of the City of Dallas, et al., Petitioners,v.Albert L. LIPSCOMB et al. No. 77-529. Argued April 26, 1978. Decided June 22, 1978. Syllabus Respondents, Negro and Mexican-American residents of Dallas, Tex., brought this action for injunctive and declaratory relief against petitioners, the Mayor and members of the Dallas City Council, alleging that the City Charter's at-large system of electing council members unconstitutionally diluted the vote of racial minorities. After an evidentiary hearing, the District Court orally declared that system unconstitutional and then "afforded the city an opportunity as a legislative body for the City of Dallas to prepare a plan which would be constitutional." The City Council then passed a resolution expressing its intention to enact an ordinance that would provide for eight council members to be elected from single-member districts and for the three remaining members, including the Mayor, to be elected at large. After an extensive remedy hearing, the District Court approved the plan, which the City Council thereafter formally enacted as an ordinance. The District Court later issued a memorandum opinion that sustained the plan as a valid legislative Act. The Court of Appeals reversed, holding that the District Court had erred in evaluating the plan only under constitutional standards without also applying the teaching of East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296, which held that, absent exceptional circumstances, judicially imposed reapportionment plans should use only single-member districts. Held : The judgment is reversed and the case is remanded. Pp. 539-547, 547-549. 551 F.2d 1043, reversed and remanded. Mr. ustice WHITE, joined by Mr. Justice STEWART, concluded: 1 1. Federal courts, absent special circumstances, must employ single-member districts when they impose remedial reapportionment plans. That standard, however, is more stringent than the constitutional standard that is applicable when the reapportionment is accomplished by the legislature. Here, after the District Court had invalidated the Dallas at-large election scheme in the City Charter, the city discharged its duty to devise a substitute by enacting the eight/three ordinance, which the District Court reviewed as a legislatively enacted plan and held constitutional despite the use of at-large voting for three council seats. Pp. 539-543. 2. The eight/three ordinance was properly considered to be a legislative plan and the Court of Appeals erred in evaluating it under principles applicable to judicially devised reapportionment plans. Pp. 543-546. 2 (a) No special reason for not applying the standard applicable to a legislatively devised plan can be found in the provisions of Texas law that specify that a city charter can be amended only by a vote of the people for the City Council in enacting the plan did not purport to amend the Charter but only to exercise its legislative powers after the Charter provision had been declared unconstitutional. P. 544. 3 (b) East Carroll Parish School, Bd., supra, does not support the conclusion of the Court of Appeals that the plan presented by the city must be viewed as judicial and therefore as subject to a level of scrutiny more stringent than that required by the Constitution, rather than legislative. In reaching the conclusion that single-member districts are to be preferred, the Court emphasized that the bodies that submitted the plans did not purport to reapportion themselves and could not legally do so under federal law because state legislation providing them with such powers had been disapproved under § 5 of the Voting Rights Act of 1965. On the facts of the instant case, however, unlike the situation in East Carroll Parish School Bd., the Dallas City Council validly met its responsibility of replacing the invalid apportionment provision with one that could withstand constitutional scrutiny. Pp. 545-546. 4 3. Though it has been urged that § 5 of the Voting Rights Act of 1965, which became applicable to Texas while this case was pending on appeal, barred effectuation of the challenged ordinance absent the clearance mandated by § 5, that issue was not dealt with by the Court of Appeals and should more appropriately be considered by that court on remand. Pp. 546-547. 5 Mr. Justice POWELL, joined by THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice REHNQUIST, while agreeing that the eight/three ordinance was a "legislative plan" for purposes of federal court review, concluded that the instant case is controlled by Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376. By analogy to the reasoning of that case the eight/three plan must be considered legislative, even if the Council had no power to apportion itself, a Charter amendment being necessary to that end. Under the Burns rule whereby "a State's freedom of choice to devise substitutes for an apportionment plan found unconstitutional . . . should not be restricted beyond the clear commands of the Equal Protection Clause," plans proposed by the local body must be regarded as "legislative" even if, as in that case, the Court's examination of state law suggests that the local body lacks authority to reapportion itself. To the extent that East Carroll Parish School Bd. implies anything further about the principle established in Burns, the latter must be held to control. Pp. 547-549. 6 Joseph G. Werner, Dallas, Tex., for petitioners. 7 James A. Johnston, Jr., Dallas, Tex., for respondents. 8 Peter Buscemi, Washington, D. C., pro hac vice, for United States, as amicus curiae, by special leave of Court. 9 Mr. Justice WHITE announced the judgment of the Court and delivered an opinion in which Mr. Justice STEWART joined. 10 This case involves the recurring issue of distinguishing between legislatively enacted and judicially imposed reapportionments of state legislative bodies. 11 * In 1971 respondents, Negro and Mexican-American residents of Dallas, Tex., filed suit in the United States District Court for the Northern District of Texas against petitioners, the Mayor and members of the City Council of Dallas, the city's legislative body, alleging that the at-large system of electing council members unconstitutionally diluted the vote of racial minorities. They sought a declaratory judgment to this effect and an injunction requiring the election of councilmen from single-member districts. The complaint was dismissed for failure to state a claim, but the Court of Appeals for the Fifth Circuit disagreed and remanded. Lipscomb v. Jonsson, 459 F.2d 335 (1972). 12 On January 17, 1975, after certifying a plaintiff class consisting of all Negro citizens of the city of Dallas1 and following an evidentiary hearing, the District Court orally declared that the system of at-large elections to the Dallas City Council unconstitutionally diluted the voting strength of Negro citizens.2 The District Court then "afforded the city an opportunity as a legislative body for the City of Dallas to prepare a plan which would be constitutional." App. 29. 13 On January 20, 1975, the City Council passed a resolution which stated that the Council intended to enact an ordinance which would provide for eight Council members to be elected from single-member districts and for the three remaining members, including the Mayor, to be elected at-large. This plan was submitted to the District Court on January 24, 1975. The court then conducted a remedy hearing "to determine the constitutionality of the new proposed plan by the City of Dallas." Ibid. After an extensive hearing, the court announced in an oral opinion delivered on February 8, 1975, that the city's plan met constitutional guidelines and was acceptable and that it would issue a written opinion in the near future. Two days later, the City Council formally enacted the promised ordinance, and on March 25, the court issued a memorandum opinion containing its findings of fact and conclusions of law and again sustaining the city plan as a valid legislative Act. 399 F.Supp. 782 (1975).3 14 The Court of Appeals reversed. 551 F.2d 1043 (1977). It held that the District Court erred by evaluating the city's actions only under constitutional standards rather than also applying the teaching of East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976), that, absent exceptional circumstances, judicially imposed reapportionment plans should employ only single-member districts. It concluded that no considerations existed in this case which justified a departure from this preference and remanded with instructions that the District Court require the city to reapportion itself into an appropriate number of single-member districts.4 We granted certiorari, 434 U.S. 1008, 98 S.Ct. 716, 54 L.Ed.2d 750 (1978), and reverse on the grounds that the Court of Appeals misapprehended Eas Carroll Parish School Bd. and its predecessors. II 15 The Court has repeatedly held that redistricting and reapportioning legislative bodies is a legislative task which the federal courts should make every effort not to pre-empt. Connor v. Finch, 431 U.S. 407, 414-415, 97 S.Ct. 1828, 1833-1834, 52 L.Ed.2d 465 (1977); Chapman v. Meier, 420 U.S. 1, 27, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975); Gaffney v. Cummings, 412 U.S. 735, 749, 93 S.Ct. 2321, 2329, 37 L.Ed.2d 298 (1973); Burns v. Richardson, 384 U.S. 73, 84-85, 86 S.Ct. 1286, 1292-1293, 16 L.Ed.2d 376 (1966). When a federal court declares an existing apportionment scheme unconstitutional, it is therefore, appropriate, whenever practicable, to afford a reasonable opportunity for the legislature to meet constitutional requirements by adopting a substitute measure rather than for the federal court to devise and order into effect its own plan. The new legislative plan, if forthcoming, will then be the governing law unless it, too, is challenged and found to violate the Constitution. "[A] state's freedom of choice to devise substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should not be restricted beyond the clear commands of the Equal Protection Clause." Id., at 85, 86 S.Ct., at 1293. 16 Legislative bodies should not leave their reapportionment tasks to the federal courts; but when those with legislative responsibilities do not respond, or the imminence of a state election makes it impractical for them to do so, it becomes the "unwelcome obligation," Connor v. Finch, supra, 431 U.S., at 415, 97 S.Ct., at 1833, of the federal court to devise and impose a reapportionment plan pending later legislative action. In discharging this duty, the district courts "will be held to stricter standards . . . than will a state legislature . . . ." 431 U.S., at 414, 97 S.Ct., at 1833. Among other requirements, a court-drawn plan should prefer single-member districts over multimember districts, absent persuasive justification to the contrary. Connor v. Johnson, 402 U.S. 690, 692, 91 S.Ct. 1760, 1762, 29 L.Ed.2d 268 (1971). We have repeatedly reaffirmed this remedial principle. Connor v. Williams, 404 U.S. 549, 551, 92 S.Ct. 656, 658, 30 L.Ed.2d 704 (1972); Mahan v. Howell, 410 U.S. 315, 333, 93 S.Ct. 979, 989, 35 L.Ed.2d 320 (1973); Chapman v. Meier, supra, 420 U.S., at 18, 95 S.Ct., at 761; East Carroll Parish School Bd. v. Marshall, supra, 424 U.S., at 639, 96 S.Ct., at 1085. 17 The requirement that federal courts, absent special circumstances, employ single-member districts when they impose remedial plans, reflects recognition of the fact that "the practice of multimember districting can contribute to voter confusion, make legislative representatives more remote from their constituents, and tend to submerge electoral minorities and over-represent electoral majorities . . . ." Connor v. Finch, supra, 404 U.S., at 415, 97 S.Ct., at 1834. See also Chapman v. Meier, supra, 420 U.S. at 15-16, 95 S.Ct., at 760-761. Despite these dangers, this Court has declined to hold that state multimember districts are per se unconstitutional. See, for example, Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965); Burns v. Richardson, supra; Chapman v. Meier, supra, 420 U.S., at 15, 95 S.Ct., at 760. A more stringent standard is applied to judicial reapportionments, however, because a federal court, "lacking the political authoritativeness that the legislature can bring to the task," must act "circumspectly, and in a manner 'free fr m any taint of arbitrariness or discrimination.' " Connor v. Finch, supra, 431 U.S., at 415, 97 S.Ct., at 1834, quoting from Roman v. Sincock, 377 U.S. 695, 710, 84 S.Ct. 1449, 1458, 12 L.Ed.2d 620 (1964).5 18 The foregoing principles, worked out in the course of reconciling the requirements of the Constitution with the goals of state political policy, are useful guidelines and serve to decide many cases. But, as is true in this case, their application to the facts presented is not always immediately obvious. Furthermore, the distinctive impact of § 5 of the Voting Rights Act of 1965, as amended, 89 Stat. 404, 42 U.S.C. § 1973c (1970 ed., Supp. V), upon the power of the States to reapportion themselves must be observed. Plans imposed by court order are not subject to the requirements of § 5,6 but under that provision, a State or political subdivision subject to the Act may not "enact or seek to administer" any "different" voting qualification or procedure with respect to voting without either obtaining a declaratory judgment from the United States District Court for the District of Columbia that the proposed change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color" or submitting the change to the Attorney General and affording him an appropriate opportunity to object thereto. A new reapportionment plan enacted by a State, including one purportedly adopted in response to invalidation of the prior plan by a federal court, will not be considered "effective as law," Connor v. Finch, 431 U.S., at 412, 97 S.Ct., 1832; Connor v. Waller, 421 U.S. 656, 95 S.Ct. 200, 44 L.Ed.2d 486 (1975), until it has been submitted and has received clearance under § 5. Neither, in those circumstances, until clearance has been obtained, should a court address the constitutionality of the new measure. Connor v. Finch, supra; Connor v. Waller, supra. Pending such submission and clearance, if a State's electoral processes are not to be completely frustrated, federal courts will at times necessarily be drawn further into the reapportionment process and required to devise and implement their own plans. III 19 Texas was not subject to the Voting Rights Act when this case was pending in the District Court. Hence, insofar as federal law was concerned, when the District Court invalidated the provisions of the Dallas City Charter mandating at-large Council elections, the city was not only free but was expe ted to devise a substitute rather than to leave the matter to the District Court. This duty, the District Court found, was discharged when the city enacted the eight/three plan of electing Council members. Noting that only if "the legislature failed in [its reapportionment] task, would the responsibility fall to the federal courts" and declaring that the plan adopted by the Council was not one "hastily conceived merely for the purposes of this litigation," 399 F.Supp., at 797, the District Court proceeded to declare the plan constitutional despite the use of at-large voting for three Council seats. Although there are some indications in the District Court's opinion that it was striving to satisfy those rules governing federal courts when they devise their own reapportionment plans, it seems to us that on balance, the District Court, as the United States observes in its amicus brief, reviewed the apportionment plan proposed by the Council as a legislatively enacted plan.7 20 The Court of Appeals was not in disagreement in this respect. It observed that "[t]he district court approved the City's plan for relief, which was enacted as a city ordinance following the court's decision that the prior system was unconstitutional." 551 F.2d, at 1045. It further noted that "the election plan [was] formally adopted by the City Council." Id., at 1046. 21 Neither did the Court of Appeals disturb the ruling of the District Court that the ordinance was constitutional. It did, however, insist that the plan also satisfy the special preference for single-member districts applicable where district courts are themselves put to the task of devising reapportionment plans and reversed the judgment of the District Court because in its view the record did not disclose the presence of those special circumstances that would warrant departure from the rule. This was clearly error unless there was some convincing reason why the District Court was not entitled to consider the substitute plan under the principles applicable to legislatively adopted reapportionment plans. As we see it, no such reason has been presented. 22 It is suggested that the city was without power to enact the ordinance because the at-large system declared unconstitutional was established by the City Charter and because, under the Texas Constitution, Art. XI, § 5, and Texas statutory law, Tex.Rev.Civ.Stat.Ann. Art. 1170 (Vernon Supp. 1978), the Charter cannot be amended without a vote of the people. But the District Court was of a different view. Although the Council itself had no power to change the at-large system as long as the Charter provision remained intact, once the Charter provision was declared unconstitutional, and, in effect, null and void, the Council was free to exercise its legislative powers which it did by enacting the eight/three plan. 399 F.Supp., at 800; Tr. of Oral Arg. 6. When the City Council reapportioned itself by means of resolution and ordinance, it was not purporting to amend the City Charter but only to exercise its legislative powers as Dallas' governing body. The Court of Appeals did not disagree with the District Court in this respect, and we are in no position to overturn the District Court's acceptance of the city ordinance as a valid legislative response to the court's declaration of unconstitutionality.8 23 East Carroll Parish School Bd. v. Marshall does not support the conclusion of the Court of Appeals in this case that the plan presented by the city must be viewed as judicial rather than legislative. In that case the District Court instructed the East Carroll police jury and school boards to file reapportionment plans. They both submitted a multimember arrangement which the court adopted. We held that the District Court erred in approving a multimember plan because "when United States district courts are put to the task of fashioning reapportionment plans to supplant concededly invalid state legislation, single-member districts are to be preferred absent unusual circumstances." 424 U.S., at 639, 96 S.Ct., at 1085. In reaching this conclusion, however, we emphasized that the bodies which submitted the plans did not purport to reapportion themselves and, furthermore, could not even legally do so under federal law because state legislation providing them with such powers had been disapproved by the Attorney General of the United States under § 5 of the Voting Rights Act of 1965. 424 U.S., at 638 n. 6, 637 n. 2, 96 S.Ct., at 1085 n. 6, 1084 n. 2. Under these circumstances, it was concluded that the mere act of submitting a plan was not the equivalent of a legislative Act of reapportionment performed in accordance with the political processes of the community in question. 24 Even if one disagreed with that conclusion, this case is markedly different from East Carroll Parish School Bd. After the District Court found that the existing method of electing the City Council was constitutionally defective on January 17, 1975, it "gave the City of Dallas an opportunity to perform its duty to enact a constitutionally acceptable plan." 399 F.Supp., at 792. The City Council, the legislative body governing Dallas, promptly took advantage of this opportunity and on January 24, 1975, passed a resolution which stated "that it is the intention of the majority of this City Council to pass an ordinance [enacting a plan of eight single-member districts with three individuals, including the Mayor, to be elected at-large]." App. 188. On February 8, 1975, the District Court announced in an oral opinion following a hearing held to consider the constitutionality of the city's plan that it was accepting the city's plan but retained jurisdiction. Two days later, on February 10, the City Council, as promised, enacted an ordinance incorporating the eight/three plan. Id., at 189. In a written opinion filed subsequently, the District Court specifically found "that [the city of Dallas] has met [its constitutional] duty in enacting the eight/three plan of electing council members." 399 F.Supp., at 792. Here, unlike the situation in East Carroll Parish School Bd., as the Court there viewed it, the body governing Dallas validly met its responsibility of replacing the apportionment provision invalidated by the District Court with one which could survive constitutional scrutiny. The Court of Appeals therefore erred in regarding the plan as court imposed and in subjecting it to a level of scrutiny more stringent than that required by the Constitution.9 25 Finally, it is urged that the Court of Appeals be affirmed because Texas became subject to § 5 of the Voting Rights Act while the case was pending on appeal and because under § 5, as amended, Dallas could neither enact nor seek to administer any reapportionment plan different from that in effect on November 1, 1972, without securing the clearance called for by that section. It is urged that the city ordinance of February 1975, relied upon by the District Court and validly enacted prior to § 5's becoming applicable to Texas, cannot be considered as effective law until it has secured the necessary approval. The same is said with respect to the Charter amendment approved by the people of Dallas in 1976. See n. 3, supra. 26 We think it inappropriate, however, to address the § 5 issue. Respondents may, of course, seek to sustain the judgment below on grounds not employed by the Court of Appeals; but there is a preliminary question as to whether the § 5 issue is open in this Court. Respondents did not cross-petition, and sustaining the § 5 submission, even if it would not expand the relief in respondents' favor, would alter the nature of the judgment issued by the Court of Appeals. See United States v. New York Telephone Co., 434 U.S. 159, 166 n. 8, 98 S.Ct. 364, 369 n. 8, 54 L.Ed.2d 376 (1977). In any event, however, we are not obligated to address the issue here, particularly where the Court of Appeals did not deal with it one way or another—apparently because it considered the plan to be a judicial product beyond the reach of the section. The impact of the Voting Rights Act on the city ordinance and on the Charter amendment approved by referendum will be open on remand, and we deem it appropriate for the Court of Appeals to deal with these questions. 27 The judgment of the Court of Appeals is reversed, and the case is remanded to that Court for further proceedings. 28 So ordered. 29 Mr. Justice POWELL, with whom THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice REHNQUIST join, concurring in part and concurring in the judgment. 30 I agree with Mr. Justice WHITE's conclusion that the reapportionment plan adopted by the Dallas City Council was a "legislative plan" for purposes of review by a federal court. In my view, however, his Court's reasoning in reaching that conclusion casts doubt on Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966). 31 Mr. Justice WHITE reads East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976), as establishing the principle that a proposed reapportionment plan cannot be considered a legislative plan if the political body suggesting it lacks legal power to reapportion itself. Ante, at 545. Because the City Council ordinarily would have had no power to reapportion itself—a Charter amendment being necessary to that end—Mr. Justice WHITE is constrained to assume that the Council became imbued with such power after the District Court struck down the apportionment provisions of the City Charter. Aside from the fact that this aspect of Texas law was neither fully briefed nor argued, the assumption seems unnecessary. 32 In Burns v. Richardson, supra, the Hawaii Legislature was without power to reapportion itself, a constitutional amendment being required for that purpose. Nevertheless, this Court treated the plan that the legislature proposed to submit to the voters as a legislative plan. By parity of reasoning, the plan proposed by the Dallas City Council in this case must be considered legislative, even if the Council had no power to reapportion itself. The Council plan was then implemented by court order, 399 F.Supp. 782, 798 (N.D.Tex.1975), just as the legislature's plan in Burns ultimately was imposed pending the outcome of the constitutional amendment process, 384 U.S., at 98, 86 S.Ct., at 1299. 33 The essential point is that th Dallas City Council exercised a legislative judgment, reflecting the policy choices of the elected representatives of the people, rather than the remedial directive of a federal court. As we held in Burns, supra, at 85, 86 S.Ct., at 1293, "a State's freedom of choice to devise substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should not be restricted beyond the clear commands of the Equal Protection Clause." This rule of deference to local legislative judgments remains in force even if, as in Burns, our examination of state law suggests that the local body lacks authority to reapportion itself. 34 Thus, Mr. Justice WHITE's statement that East Carroll School Bd. stands for the proposition that a plan submitted by a political body without power to reapportion itself cannot be considered a legislative plan appears to be in direct conflict with Burns. Because the brief per curiam in East Carroll did not even cite Burns, I would read it as turning on its peculiar facts. In response to the litigation in East Carroll, the legislature enacted a statute enabling police juries and school boards to reapportion themselves by employing at-large elections. That enabling legislation was disapproved by the Attorney General of the United States under § 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c (1970 ed., Supp. V), because of its impermissible impact on Negro voters. This determination meant that the specific plans proposed by the school board and police jury in that case would have had unlawful effects. Because their legislative judgment had been found tainted in that respect, it followed that the normal presumption of legitimacy afforded the balances reflected in legislative plans, see Burns, supra, at 84-85, 86 S.Ct., at 1292-1293, could not be indulged. To the extent that East Carroll implies anything further about the principle established in Burns, the latter must be held to control. 35 Having determined on the basis of Burns that the City Council plan was legislative, I agree with Mr. Justice WHITE's conclusion that the judgment of the Court of Appeals must be reversed. I also agree that there is no reason for this Court to explore difficult questions concerning § 5 of the Voting Rights Act in the absence of consideration by the courts below. 36 Opinion of Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice POWELL join. 37 I write separately to emphasize that the Court today is not presented with the question of whether the District Court erred in concluding that the form of government of the city of Dallas unconstitutionally diluted the voting power of black citizens. While this Court has found that the use of multi-member districts in a state legislative apportionment plan may be invalid if "used invidiously to cancel out or minimize the voting strength of racial groups," White v. Regester, 412 U.S. 755, 765, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314 (1973), we have never had occasion to consider whether an analogue of this highly amorphous theory may be applied to municipal governments. Since petitioners did not preserve this issue on appeal, we need not today consider whether relevant constitutional distinctions may be drawn in this area between a state legislature and a municipal government. I write only to point out that the possibility of such distinctions has not been foreclosed by today's decision. 38 Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice STEVENS join, dissenting. 39 I agree with the majority's decision not to reach the Voting Rights Act question, since it was not presented to either of the courts below. I also agree with the analysis of our past decisions found in Part II of Mr. Justice WHITE's opinion. I cannot agree, however, that the actions of the Dallas City Council are distinguishable from those of the local governing body in East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976). I therefore conclude that the plan ordered by the District Court here must be evaluated in accordance with the federal common law of remedies applicable to judicially devised reapportionment plans. 40 * In East Carroll Parish School Bd. v. Marshall, supra, suit against the parish (county) was initially brought by a white resident who claimed that population disparities among the wards of the parish unconstitutionally denied him an equal vote in elections for members of the school board and the police jury, the governing body of the parish. Following a finding of unconstitutionality, the District Court adopted a plan submitted by the police jury, which called for at-large elections of both bodies. Two years later (after the 1970 census), in response to the court's direction, the at-large plan was resubmitted by the police jury. Respondent Marshall then intervened, arguing that the at-large elections would dilute the Negro vote in violation of the Fourteenth and Fifteenth Amendments. The District Court again accepted the police jury plan, but the Court of Appeals reversed, holding that multimember districts were unconstitutional. 41 Although we did not reach the constitutional ground relied on by the Court of Appeals, we sustained its judgment. We concluded that the District Court had abused its equitable discretion in not requiring the division of the parish into single-member wards: 42 "We have frequently reaffirmed the rule that when United States district courts are put to the task of fashioning reapportionment plans to supplant concededly invalid state legislation, single-member districts are to be preferred absent unusual circumstances." 424 U.S., at 639, 96 S.Ct., at 1085. 43 It is plain from the foregoing that we treated the plan submitted by the local legislative body in East Carroll as a judicially devised plan, to which the federal common law of remedies developed in reapportionment cases was applicable. It is equally plain that we did not treat the police jury's submission as a "legislatively enacted" plan, which would only have had to meet the strictures of the Constitution and would not necessarily have been subject to evaluation under the more stringent standards applicable to court-devised plans. See Connor v. Finch, 431 U.S. 407, 414-415, 97 S.Ct. 782, 1833-34, 52 L.Ed.2d 465 (1977). Indeed, in rejecting the argument of the United States (appearing as amicus curiae ) that the East Carroll plan was subject to the preclearance procedure of § 5 of the Voting Rights Act of 1965, we expressly noted that the police jury "did not have the authority to reapportion itself," and that the plan, though submitted by the police jury, was a "court-ordered pla[n] resulting from equitable jurisdiction over the adversary proceedings." 424 U.S., at 638-639, n. 6, 96 S.Ct., at 1085. 44 There is no meaningful distinction between the facts here and the facts in East Carroll. Like the police jury in East Carroll, the City Council of Dallas did not act pursuant to any state enabling legislation governing the procedures for reapportioning itself when it first proposed the eight/three plan to the District Court in January 1975. Nor did it act pursuant to any state-derived authority when it "enacted" the plan following the District Court's first approval of it in March 1975. Under the terms of its Charter, the Dallas City Council could reapportion itself only by a popular referendum. See Tex.Const., Art. XI, § 5; Tex.Rev.Civ.Stat.Ann., Art. 1170 (Vernon Supp. 1978). The Council unquestionably failed to comply with the existing state procedures for enacting a reapportionment plan; indeed, the District Court itself noted that, were the Dallas City Council not responding to a judicial finding of unconstitutionality, it would have been acting unlawfully in unilaterally reapportioning itself. 399 F.Supp. 782, 800 (N.D.Tex.1975). 45 That this plan was not devis d by the City Council in the usual course of its legislative responsibilities is further evidenced by the fact that the Council told a group of Mexican-American citizens, who wished to present for the Council's deliberations an alternative, single-member district plan, that they were in the "wrong forum" and should go to federal court. App. 43-44. It seems clear that the eight/three plan was proposed less as a matter of legislative judgment than as a response by a party litigant to the court's invitation to aid in devising a plan. Indeed, the District Court itself appeared at times to regard the eight/three plan as a court-devised plan in which at-large voting had to be justified by special and unique circumstances. See ante, at 543 (opinion of WHITE, J.). 46 It is suggested that the City Council here, unlike the police jury in East Carroll, purported to reapportion itself when it first submitted the eight/three plan. See ante, at 545 (opinion of WHITE, J.). But that simply is not the case. This plan was initially proposed not in the form of a formal, binding enactment but merely as an expression of the Council's "intention." App. 188. The Council did not even bother to go through the formality of enacting a supposedly binding ordinance until after the District Court, following a full hearing, indicated that it approved of the plan as a remedy for the constitutional violations; the procedures followed prior to the time when the District Court ordered implementation of the eight/three plan, moreover, were insufficient under state law validly to change the structure of the Council. 47 While our past decisions have held that a legislatively enacted reapportionment plan is the preferred response to a judicial finding of unconstitutional apportionment, I do not believe that these cases contemplated that a legislature could meet this responsibility—and thereby avoid the requirements applicable to court-devised plans—by making a submission not in accordance with valid state procedures governing legislative enactments.1 If the plan submitted in East Carroll was properly regarded as a judicially devised plan, then the plan before us today must also be so regarded, and I see no reason to depart from the clear implications of this unanimous decision of the Court rendered only two Terms ago. I therefore conclude that the Court of Appeals properly evaluated this plan under the standards of the federal common law, which has four years recognized that multimember districts and at-large voting are presumptively disfavored. II 48 Even if this plan were properly to be viewed as a "legislatively enacted" plan, however, the majority's apparent assumption that it represents a proper remedy would nonetheless be troubling. Where the very nature of the underlying violation is dilution of the voting power of a racial minority resulting from the effects of at-large votin in a particular political community, I believe that it is inappropriate either for the local legislative body or a court to respond with more of the same. 49 Although we have refrained from holding that multimember districts are unconstitutional per se, the presumption in favor of single-member districts as a matter of federal remedial law is a strong one. See, e. g., Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971); Connor v. Williams, 404 U.S. 549, 551, 92 S.Ct. 656, 658, 30 L.Ed.2d 704 (1972); Chapman v. Meier, 420 U.S. 1, 16-19, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975). We have repeatedly explained this preference by virtue of the fact that multimember districts "tend to submerge electoral minorities and overrepresent electoral majorities." Connor v. Finch, 431 U.S., at 415, 97 S.Ct., at 1834; accord, Whitcomb v. Chavis, 403 U.S. 124, 158-159, 91 S.Ct. 1858, 1877 (1971). See also Chapman v. Meier, supra, 420 U.S., at 16, 95 S.Ct., at 760. 50 In the instant case, it is essentially undisputed that the use of a multimember district (the city of Dallas) for the at-large election of all City Council members had "submerged" an electoral minority, the Negro voters of Dallas. In this respect the case is unlike East Carroll, where the original electoral scheme was invalidated solely on the ground of malapportionment and where the "racial dilution" challenge was raised only in objection to the proposed remedy. Multimember districts, which are disfavored as court-devised remedies because of their "tendency" or potential to create racial dilution, should a fortiori be disfavored when they are proposed to cure a proved use of a "multi-member . . . scheme . . . to minimize or cancel out the voting strength of racial . . . elements of the voting population." Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965).2 51 Based on respondents' proof of a diluting effect on Negro voting strength in Dallas—and of the long history of de jure discrimination contributing to it—the District Court held the Dallas scheme to be unconstitutional. Although the Council did not challenge the finding that the at-large election of all its members was unconstitutional, the plan it submitted to the District Court replicated the offending feature of its original scheme by providing for the at-large election of three Council members. To put the burden on respondents to prove that the submission, insofar as it perpetuates at-large voting for Council members, is as unconstitutional as the original plan seems contrary to logic and common sense. I cannot agree that either the Constitution or the remedial principles of equity require such a result. 52 For both of these reasons, I believe that the Court of Appeals correctly held that the use of at-large voting for City Council members in the city of Dallas should not have been approved as part of the remedy in this case by the District Court. I therefore dissent. 1 Several plaintiffs, including all of the Mexican-American plaintiffs, were dismissed from the case for failure to respond to interrogatories. Two Mexican-Americans subsequently attempted to intervene. The District Court denied their application but later permitted several Mexican-Americans to participate in the remedy hearing held after the at-large election system was declared unconstitutional. 2 Petitioners did not appeal this ruling and do not question it here. 3 On April 1, 1975, the Dallas City Council election was held under the eight/three plan. During the pendency of the appeal the electorate approved this plan in a referendum conducted in April 1976, thus incorporating it into the City Charter. 4 The court stated that the city may provide for the election of the Mayor by general citywide election if it desired. Mr. Justice POWELL stayed the Court of Appeals' judgment pending disposition by this Court. 434 U.S. 1329, 98 S.Ct. 15, 54 L.Ed.2d 41 (1977). 5 The numerous cases in which this Court has required the use of single-member districts in court-ordered reapportionment plans have all involved apportionment schemes which, unlike the one in this case, were held unconstitutional because they departed from the one-person, one-vote rule of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and its progeny. We are fully persuaded, however, that the same considerations which have induced this Court to express a preference for single-member districts in court-ordered reapportionment plans designed to remedy violations of the one-person, one-vote rule compel a similar rule with regard to court-imposed reapportionments designed to cure the dilution of the voting strength of racial minorities resulting from unconstitutional racial discrimination. Indeed, the Court has justified the preference for single-member districts in judicially imposed reapportionments on the ground that multimember districts "tend to submerge electoral minorities and over-represent electoral majorities . . . ," which is the source of the very violation which the court is seeking to eliminate in racial dilution cases. Connor v. Finch, 431 U.S. 407, 415, 97 S.Ct. 1834 (1977). See White v. Regester, 412 U.S. 755, 765-770, 93 S.Ct. 2332, 2339-2341, 37 L.Ed.2d 314 (1973). 6 "A decree of the United States District Court is not within reach of Section 5 of the Voting Rights Act." Connor v. Johnson, 402 U.S. 690, 691, 91 S.Ct. 1760, 1762 (1971). 7 In his oral announcement, the judge remarked: "I'm not saying it's the best plan. It's not even the plan that this Court would have drawn. But this Court's not in the plan-drawing business. That's the legislative duty." Record 195. 8 The record suggests no statutory, state constitutional, or judicial prohibition upon the authority of the City Council to enact a municipal election plan under circumstances such as this and respondents have been unable to cite any support for its contention that the City Council exceeded its authority. It must be noted that since there is no provision under Texas law for reapportionment of Home Rule citie such as Dallas by the state legislature, or other state agency, acceptance of respondents' position would leave Dallas utterly powerless to reapportion itself in those instances where the time remaining before the next scheduled election is too brief to permit the approval of a new plan by referendum. We are unwilling to adopt such an interpretation of Texas and Dallas law in the absence of any indication whatsoever that it would be accepted by Texas courts. 9 In light of our disposition, we do not consider petitioners' claim that the Court of Appeals also erred in holding that the alleged effect of all single-member districts on the representation of Mexican-American voters and the desirability of permitting some citywide representation did not constitute special circumstances justifying departure from th preference for single-member districts in remedial reapportionments conducted by federal courts. 1 I do not agree with my Brother POWELL that Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966), stands for the proposition that any legislative submission whatsoever should be treated as a "legislative plan." In Burns, the very mechanism by which changes in apportionment could be made under state law had been found by the District Court to be designed to freeze existing unconstitutional apportionments and had thus been held unconstitutional in its own right. 238 F.Supp. 468, 472 (Haw.1965). Here, by contrast, there was a lawful mechanism available for modifying the apportionment under the Dallas City Charter: the drafting of a proposal by the Council and its submission to the voters of the city at a popular referendum. If this process could not be completed in time for the next election, then the District Court would be justified in devising a temporary, court-ordered plan. See ante, at 540 (opinion of WHITE, J.). See also Connor v. Williams, 404 U.S. 549, 552, and n. 4, 92 S.Ct. 656, 658, and n. 4, 30 L.Ed.2d 704 (1972). 2 In White v. Regester, 412 U.S. 755, 765-770, 93 S.Ct. 2332, 2339-2341, 37 L.Ed.2d 314 (1973), this Court affirmed a District Court order directing that an unconstitutional multimember district be reapportioned into single-member districts designated by the court. The District Court had found the multimember district to be unconstitutional because of its dilutive effect on Negro voting strength, and had ordered implementation of its remedy without awaiting a legislative response to its finding of unconstitutionality. See Graves v. Barnes, 343 F.Supp. 704 (W.D.Tex.1972) (three-judge court).

12

437 U.S. 601 98 S.Ct. 3107 57 L.Ed.2d 464 State of CALIFORNIA, Plaintiff,v.State of TEXAS No. 76 Supreme Court of the United States June 22, 1978 On Motion for Leave to File Bill of Complaint. June 22, 1978. PER CURIAM. 1 The motion for leave to file a bill of complaint is denied. 2 Mr. Justice BRENNAN, concurring. 3 I agree with Mr. Justice STEWART and Mr. Justice POWELL that "in light of Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), this Court's decision in Worcester County Trust Co. v. Riley, 302 U.S. 292, 58 S.Ct. 185, 82 L.Ed. 268 (1937), no longer can be regarded as a bar against the use of federal interpleader by estates threatened with double death taxation because of possible inconsistent adjudications of domicile." Post, at 615. 4 I am not so sure as they that Texas v. Florida, 306 U.S. 398, 59 S.Ct. 563, 83 L.Ed. 817 (1939), was wrongly decided. But, whatever the case, I would still deny California's motion to file a bill of complaint at this time. If we have jurisdiction at all, that jurisdiction certainly does not attach until it can be shown that two States may possibly be able to obtain conflicting adjudications of domicile. That showing has not been made at this time in this case, since it may well be possible for the Hughes estate to obtain a judgment under the Federal Interpleader Statute, 28 U.S.C. § 1335, from a United States district court, which would be binding on both California and Texas. In this event, the precondition for our original jurisdiction would be lacking. Accordingly, I would deny California's motion, at least until such time as it is shown that such a statutory interpleader action cannot or will not be brought. 5 Mr. Justice STEWART, with whom Mr. Justice POWELL and Mr. Justice STEVENS join, concurring. 6 California seeks to invoke the original and exclusive jurisdiction of this Court to settle a dispute with the State of Texas over the question of which State has the power to collect death taxes from the estate of the late Howard Robard Hughes. The Court today, without explanation of any kind, evidently concludes that California's complaint does not state a claim within our original and exclusive jurisdiction. This conclusion seems to me squarely contrary to a longstanding precedent of this Court, the case of Texas v. Florida, 306 U.S. 398, 59 S.Ct. 563, 83 L.Ed. 817. I have joined in the order denying California's motion for leave to file this complaint only because I think Texas v. Florida was wrongly decided and should be overruled. 7 * According to the complaint, California imposes an inheritance tax on the real and tangible personal property located within its borders, and upon the intangible personalty wherever situated, of a person domiciled in the State at the time of his death, and Texas follows precisely the same policy.1 The complaint alleges that the taxing authorities in each State are claiming in good faith that the decedent Hughes was domiciled in their State at the time of his death, and have instituted proceedings to tax all the assets of the estate within the jurisdiction, as well as the intangibles (consisting of shares of stock in a single holding company) that constitute the great bulk of the estate's assets.2 8 The common law in both States recognizes, as a theoretical matter, that a person has only one domicile for purposes of death taxes. Nevertheless, the complaint alleges, since neither Texas nor California is or will become a party to the proceedings in the other's courts, neither will be bound by an adverse determination of domicile in th other's forum. Finally, and at the crux of the dispute, the complaint alleges that if both California and Texas obtain judgments for estate taxes in their respective courts and impose their taxes on the basis of the valuation of assets set forth in the federal estate tax return, the estate's total liability for federal and state taxes will exceed its net value. Thus, the complaint alleges that if the United States and Texas were to collect the taxes claimed by them, and if the California courts should ultimately determine that Hughes was a domiciliary of California at the time of his death, then California would be left with an entirely valid tax judgment that would be uncollectible to the extent of about $21 million. 9 In sum, the complaint alleges that "because there is no other means by which the conflicting tax claims of Texas and California can be resolved, this Court is the only forum which can determine the question of decedent's domicile in a manner that will bind the interested parties and assure that the state of domicile, if California or Texas, will be able to collect the tax." California invokes the original and exclusive jurisdiction of this Court on the authority of Texas v. Florida, supra. II 10 In Texas v. Florida this Court accepted original jurisdiction of Texas' complaint "in the nature of a bill of interpleader, brought to determine the true domicile of [a] decedent as the basis of rival claims of four states for death taxes upon his estate . . .." 306 U.S., at 401, 59 S.Ct. 563. Texas and each of the three defendant States claimed that the decedent, Colonel Edward Green, son of the legendary Hetty Green,3 was its domiciliary and that it was entitled to collect death taxes upon his intangible property wherever located, as well as upon his tangible property within the State. None of the States had reduced its tax claim to judgment, but all conceded that the decedent's estate was insufficient to satisfy the total amount of taxes claimed: that is, if all four States were successful in their own courts and obtained judgments for taxes in the full amount claimed, the estate would be insufficient to cover all of the claims.4 11 Although none of the parties raised any question of this Court's jurisdiction, the Court considered the question sua sponte. It held that since the suit was between States, Art. III, § 2, of the Constitution conferred original jurisdiction to decide the case so long as "the issue framed by the pleadings constitutes a justiciable 'case' or 'controversy' within the meaning of the Constitutional provision, and . . . the facts alleged and found afford an adequate basis for relief according to accepted doctrines of the common law or equity systems of jurisprudence . . .." 306 U.S., at 405, 59 S.Ct. 563. 12 The Court found such a basis for relief by analogizing the suit to a bill in the nature of interpleader. This procedure had developed in equity to avert the "risk of loss ensuing from the demands in separate suits of rival claimants to the same debt or legal duty" by requiring the claimants to "l tigate in a single suit their ownership of the asserted claim." Id., at 405-406, 59 S.Ct. 563.5 Since the law of each of the claiming States provided that a decedent could be domiciled in only one State for purposes of death taxes, the Court held that the competing tax claims were in fact conflicting claims to the same single legal duty. 13 Thus viewing the suit as one in the nature of interpleader, the Court also found that the controversy was ripe for decision. Since each State's claim was sufficiently substantial to support a finding of domicile, there was a "fair probability" that each would be successful in its own courts and that the estate's assets would be insufficient to meet all of the claims. The Court therefore found a justiciable present controversy in the substantial "risk of loss [to] the state lawfully entitled to collect the tax." Id., at 410-411, 59 S.Ct. 563. The Court perceived no jurisdictional frailty in the fact that none of the claiming States had completed proceedings to collect its inheritance tax, since a plaintiff in an interpleader action was ordinarily not required to await actual institution of independent suits: "[I]t is enough if he shows that conflicting claims are asserted and that the consequent risk of loss is substantial." Id., at 406, 59 S.Ct. 563.6 14 The facts alleged in the complaint now before us are indistinguishable in all material respects from those on which jurisdiction was based in Texas v. Florida.7 This Court has original and exclusive jurisdiction of disputes between two or more States, 28 U.S.C. § 1251(a)(1), and it has a responsibility to exercise that jurisdiction when it is properly invoked. See Cohens v. Virginia, 6 Wheat. 264, 404, 5 L.Ed. 257; Massachusetts v. Missouri, 308 U.S. 1, 19-20, 60 S.Ct. 39, 84 L.Ed. 3. If Texas v. Florida was correctly decided, the Court, therefore, is under a duty in this case to grant California's motion to file its complaint. 15 I believe, however, that Texas v. Florida was wrongly decided. Its conclusion that there was a case or controversy among the claiming States depended entirely on the analogy to a suit in the nature of interpleader to settle the question of the decedent's domicile. Yet it seems to me that in resting upon that analogy the Court focused erroneously on the plight of the estate, which was indeed confronted with a "substantial likelihood" of multiple and inconsistent tax claims, and overlooked the fact that the dispute among the claiming States—stemming solely from the possibility that the estate might be insufficient to satisfy all of their claims—was not a case or controversy in the constitutional sense. III 16 The Court's readiness in Texas v. Florida to accept the interpleader analogy is understandable in the context of the then state of the law governing multiple taxation of intangibles. 17 Before 1931 it had been taken as settled that, because the question of domicile was purely one of state law, it "must in many cases be impossible to have a single controlling decision upon the question," unless all interested parties could by chance or voluntary appearance be brought before a single forum. Baker v. Baker, Eccles & Co., 242 U.S. 394, 405, 37 S.Ct. 152, 61 L.Ed. 386. But when this Court held in 1931 that shares of stock and other intangible property could constitutionally "be subjected to a death transfer tax by one state only," that being the State of the decedent's domicile, First National Bank v. Maine, 284 U.S. 312, 328-330, 52 S.Ct. 174, 76 L.Ed. 313, it seemed implicit that there must be some means of protecting that right in a federal forum. The obvious next question was under what federal-court procedures conflicting state claims of domicile were to be resolved.8 18 The somewhat unexpected answer came in Worcester County Trust Co. v. Riley, 302 U.S. 292, 58 S.Ct. 185, 82 L.Ed. 268, which held that, at least for the ordinary estate, there was no means of forcing unwilling States to litigate the question of domicile, and the consequent right to tax the estate's intangibles, in a federal district court. In that case the estate of a decedent attempted to sue the taxing officials of two different States under the recently enacted Federal Interpleader Statute, 28 U.S.C. § 1335, to obtain a single, binding determination of the decedent's domicile at the time of his death. Despite the broad language of the First National Bank case, the Court held that "[n]either the Fourteenth Amendment nor the full faith and credit clause requires uniformity in the decisions of the courts of different states as to the place of domicil, where the exertion of state power is dependent upon domicil within its boundaries." 302 U.S., at 299, 58 S.Ct. 185. After thus making clear that the imposition of multiple estate taxes on the basis of inconsistent adjudications of domicile presented no federal constitutional question, the opinion of the Court went on to foreclose recourse to the federal interpleader jurisdiction. Federal interpleader is based on diversity-of-citizenship jurisdiction, see State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523, 530-531, 87 S.Ct. 1199, 18 L.Ed.2d 270, and a federal question is ordinarily not required.9 But because the state tax officials were not acting unconstitutionally in attempting to impose taxes on the basis of valid state-court judgments, the Court held that the interpleader action was in substance a suit against the States themselves, and therefore barred by the Eleventh Amendment. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714.10 19 When the identical type of dispute was placed before this Court two years later in Texas v. Florida, the Court was thus understandably persuaded to view the complaint as presenting a question of domicile resolvable by a suit in the nature of interpleader to determine which State could alone impose the death tax.11 But the issue of the decedent's domicile in that case was merely a coincidental premise to the real basis of the dispute among the States—the risk that the claims of the competing States would exceed the net value of the estate, and that "the state lawfully entitled to collect the tax" would find itself unable to do so.12 20 As the opinion in Texas v. Florida made clear, insofar as the rights of the estate were concerned, each of the four States was "lawfully entitled" to collect the tax: "[T]wo or more states may each constitutionally assess death taxes on a decedent's intangibles upon a judicial determination that the decedent was domiciled within it . . . ." 306 U.S., at 410, 59 S.Ct. 563. And a few months later the Court elaborated on this doctrine when it denied a motion to file a complaint in Massachusetts v. Missouri, 308 U.S. 1, 60 S.Ct. 39, 84 L.Ed. 3. There the Court made clear that both States were equally entitled to impose a tax so long as there was no risk that the estate would be depleted: "Missouri, in claiming a right to recover taxes from the respondent trustees, or in taking proceedings for collection, is not injuring Massachusetts. By the allegations, the property held in Missouri is amply sufficient to answer the claims of both States and recovery by either does not impair the exercise of any right the other may have." Id., at 15, 60 S.C . 39. 21 Thus, even after Texas v. Florida, there was still no forum in which an estate confronted with conflicting tax claims could obtain a single, binding adjudication of domicile. So long as it was able to pay each State's claim, it was required to pay taxes to any State that obtained a judgment of domicile in its own courts. And, so long as the assets of the estate were sufficient to answer all claims, a State could not obtain an adjudication in this Court as to which State had "the jurisdiction and lawful right" to impose inheritance taxes. Only in the very rare situation when a decedent's estate was threatened with death tax claims of two or more States that together exceeded its assets, and only if one of the competing States then invoked this Court's original jurisdiction, would the Court undertake to decide the decedent's true domicile and grant one State the exclusive right to tax the decedent's estate. IV 22 In reality the facts in Texas v. Florida, as well as the allegations in the complaint now before us, contain the seeds of two distinct lawsuits. One is a dispute between two States as to the proper division of a finite sum of money. The other is a suit in the nature of interpleader to settle the question of a decedent's domicile for purposes of the taxes to be imposed upon his estate. But the suit in the nature of interpleader is not within the original and exclusive jurisdiction of this Court because it is not a dispute between States. And the dispute between the States, if indeed it is justiciable at all, is certainly not yet a case or controversy within the constitutional meaning of that term. A. 23 What California seeks in the present complaint is a determination of where Howard Hughes was domiciled at the time of his death. It is clear to me that, if presented by a proper party in a proper forum, this determination could and should be made in response to a bill of interpleader. See nn. 9 and 10, supra. But if interpleader generally affords no remedy to a decedent's estate that is faced with the threat of multiple taxation, there is no logical reason why the remedy should be available in the rare situation where the multiple taxation would wipe the estate out entirely. If it is unfair to subject an estate to two domicile-based taxes when all agree that it is possible to have only one domicile, that unfairness is just as great, if not greater, when a decedent's estate is able to pay the taxes to both States. 24 It must be recognized, however, that what is involved is unfairness to the estate, not to the taxing States. The remedy of interpleader exists, if at all, to require litigation of the inconsistent tax claims in a single forum in order to avert the risk of loss to the estate that would result from separate adjudications. But the only live controversy in such a suit is between each State and the decedent's estate as to the legal obligation to pay death taxes. There is, in fact, no present dispute between the claiming States. 25 In the present case, it would be of no possible concern to either California or Texas that the other might adjudge Hughes a domiciliary and succeed in taxing his estate, except for the possibility that the other's tax might exhaust the estate entirely before it is able to satisfy its own tax judgment. Thus to the extent that the concern of this action is to prevent the possibility that the estate will be subjected to double taxation, it does not present a dispute between two States within the original and exclusive jurisdiction of this Court. For a State may seek the aid of this Court only to protect its own interests, not the interests of others. See Massachusetts v. Missouri, supra, at 15, 60 S.Ct. 39. B 26 The dispute between California and Texas, therefore, is not really over which of them has the right to impose a domiciliary tax upon the Hughes estate. Indeed the dilemma of multiple taxation arises only because the Constitution permits both States to i pose the tax. Worcester County Trust Co. v. Riley, 302 U.S. 292, 58 S.Ct. 185, 82 L.Ed. 268.13 The real dispute arises solely from the risk that one of the States will be left with an entirely valid but uncollectible tax judgment. Massachusetts v. Missouri, supra, 308 U.S., at 15, 60 S.Ct. 39. The conflict would be equally real if the two States were staking their tax claims to the finite assets of the estate on entirely different grounds, or if both States claimed as judgment creditors on the basis of completely different debts incurred while Hughes was still alive. 27 In the latter situation the question of domicile would be irrelevant, and there is no compelling reason why it should have been the dispositive question in Texas v. Florida. For when this Court exercises its original jurisdiction to settle a dispute between two States it does not look to the law of each State, but rather creates its own rules of decision. "The determination of the relative rights of contending States in respect of the use of streams flowing through them does not depend upon the same considerations and is not governed by the same rules of law that are applied in such States for the solution of similar questions of private right." Connecticut v. Massachusetts, 282 U.S. 660, 670, 51 S.Ct. 286, 75 L.Ed. 602. The determination of the relative rights of two States that both claim the power to tax a decedent's estate similarly should not necessarily depend on the same considerations that would govern the question under state law. 28 In deciding the controversy between Texas and California the Court could, of course, determine, according to its own rules of decision where Hughes was domiciled when he died, and permit only the State of domicile to tax the estate. Cf. Texas v. New Jersey, 379 U.S. 674, 85 S.Ct. 626, 13 L.Ed.2d 596. But assuming there are sufficient contacts with each State to support a finding of domicile under each State's law—a premise of jurisdiction in Texas v. Florida —the Court could with equal validity decide that the proper disposition was a division of the assets of the estate based on a judgment as to the relative strength of the domicile claims, or on almost any other basis that seemed just. Indeed, for purposes of this Court's resolution of a dispute between two sovereign States, each of which has an equally valid claim under its own law, it would seem more appropriate to decide the case on some neutral principle rather than attempt to determine a single "correct" answer under state common law. 29 In any event the question for decision would be one to be resolved under federal law, not under the state law of domicile. A prior adjudication of domicile in the courts of either of the claiming States would not bind this Court in any respect, or prevent it from affording whatever relief it deemed appropriate. Thus California, unlike the ordinary claimant in an interpleader action, will not be met with the bar of res judicata if its potential conflict with Texas is not pre-empted at this incipient stage. Cf. Treinies v. Sunshine Mining Co., 308 U.S. 66, 74-78, 60 S.Ct. 44, 84 L.E . 85. 30 The original jurisdiction of this Court exists to remedy real and substantial injuries inflicted by sovereign States upon their sister States. New York v. New Jersey, 256 U.S. 296, 309, 41 S.Ct. 492, 65 L.Ed. 937; Massachusetts v. Missouri, 308 U.S. 1, 60 S.Ct. 39, 84 L.Ed. 3. As yet, California has suffered no injury at the hand of Texas, and there is indeed a "fair probability" that the injury will never come to pass. California has not obtained a judgment in its own courts that Hughes died domiciled there, but merely a conditional agreement from the estate's representative not to contest California's assertion of domicile in this Court if the present complaint is accepted for filing. Moreover, whether or not the estate will in fact be insufficient to meet the various tax claims may depend on how the assets are finally evaluated and what deductions the various taxing authorities allow. While the risk of conflict poses a sufficiently real threat to the estate to present a ripe controversy if an interpleader suit were filed by the appropriate parties in a federal district court,14 that risk certainly does not amount to "clear and convincing evidence" of an actual injury of "serious magnitude" inflicted by one State upon another. New York v. New Jersey, supra, 256 U.S., at 309, 41 S.Ct. 492; Missouri v. Illinois, 200 U.S. 496, 521, 26 S.Ct. 268, 50 L.Ed. 572. 31 Indeed it is not at all clear to me that the injury threatened here—essentially that one State will be left with an uncollectible judgment because another State has exhausted a debtor's funds—would be sufficient to justify the exercise of this Court's original jurisdiction even if the injury actually occurred.15 But even assuming that it would be, such jurisdiction surely does not exist until each State has finally established an enforceable claim under state law, and it is clear that the estate's assets are insufficient to meet both claims. 32 It is for these reasons that I join in the order of the Court denying California's motion for leave to file its complaint. 33 Mr. Justice POWELL, concurring. 34 I join the excellent opinion of Mr. Justice STEWART and write simply to emphasize his conclusion that, in light of Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), this Court's decision in Worcester County Trust Co. v. Riley, 302 U.S. 292, 58 S.Ct. 185, 82 L.Ed. 268 (1937), no longer can be regarded as a bar against the use of federal interpleader by estates threatened with double death taxation because of possible inconsistent adjudications of domicile. 35 As Professor Zechariah Chafee, the father of federal statutory interpleader, pointed out: "It is our federal system which creates the possibility of double taxation. Somewhere within that federal system we should be able to find remedies for the frictions which that system creates." Federal Interpleader Since the Act of 1936, 49 Yale L.J. 377, 388 (1940). The Worcester County Court, much to Professor Chafee's regret, 49 Yale L.J., at 388, held that the Eleventh Amendment precluded resort to federal interpleader as a remedy for the particularly unfair "friction" that can result from conflicting adjudications of domicile in death taxation cases. 36 But as noted by Mr. Justice STEWART, ante, at 608-609, n. 10, Worcester County has been effectively undercut by subsequent developments. Edelman made it clear that the Eleventh Amendment bars only suits "by private parties seeking to impose a liability which must be paid from public funds in the state treasury," 415 U.S., at 663, 94 S.Ct. 1347, and not actions which may have "fiscal consequences to state treasuries . . . [that are] the necessary result of compliance with decrees which by their terms [are] prospective in nature," id., at 667-668, 94 S.Ct. 1347, at least in a case such as this, where the very controversy is a result of our federal system. An interpleader action to prevent competing States' taxing officials from levying death taxes on the basis of possible inconsistent adjudications of domicile unquestionably would fall into the latter category. Accordingly, it would appear that resort to federal interpleader no longer is proscribed by the Eleventh Amendment in this situation. 1 Tangible personal property and realty are constitutionally subject to taxation only at the place of situs. See Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194, 26 S.Ct. 36, 50 L.Ed. 150; City Bank Farmers Trust Co. v. Schnader, 293 U.S. 112, 55 S.Ct. 29, 79 L.Ed. 228. As will be developed more fully, infra, at 607-610, intangible personal property may, at least theoretically, be taxed only at the place of the owner's domicile. First Nat. Bank v. Maine, 284 U.S. 312, 52 S.Ct. 174, 76 L.Ed. 313. 2 In each State the personal representative of the Hughes estate is contesting the tax claim, asserting that Hughes died domiciled in Nevada—the only State in the Union without death taxes. 3 See 7 Dictionary of American Biography 545 (1931). 4 The case had been assigned to a Special Master and fully litigated on the merits before the Court raised the question of its jurisdiction sua sponte. The Special Master found that the net estate would amount to $36,137,335, and that the total tax claims of the United States and the four claiming States was $37,727,213—roughly $17.5 million by the United States, $4.6 million each by Texas and Florida, $5 million by Massachusetts, and $6 million by New York. 306 U.S., at 409 n. 2, 59 S.Ct. 563. Since the assets of the estate fell short of the total tax claims by only about $1.6 million, it was clear that there would be no shortfall unless all four state claims were sustained, and indeed that no State would go completely unsatisfied in its tax judgment even if the claims of all four States were sustained. 5 In true interpleader the stakeholder bringing suit asserts no interest in the fund. The bill in the nature of interpleader, by contrast, allows an interested claimant to seek adjudication of all claims to the fund including his own. See id., at 406, 59 S.Ct. 563. 6 On the merits the Court confirmed the Master's finding that Colonel Green was domiciled in Massachusetts at the time of his death, and that Massachusetts was therefore the only State lawfully entitled to tax the intangible personal property in his estate. 7 Texas does not concede that all tax claims will necessarily exceed the value of the Hughes estate, and argues that this fact distinguishes the present case from Texas v. Florida. But in that case it was not the concessions of the parties that did or could confer jurisdiction upon the Court. Rather, the Court held that a mere "fair probability" of inconsistent adjudications and consequent "substantial" risk of loss was sufficient to create a constitutional case or controversy in the nature of interpleader. The claims here are, in fact, no more speculative than the claims in that case. See n. 4, supra. 8 See Chafee, Federal Interpleader Since the Act of 1936, 49 Yale L.J. 377, 383-393 (1940), and authorities collected, id., at 383 n. 17; Nash, And Again Multiple Taxation?, 26 Geo.L.J. 288, 297 (1938). 9 There was no doubt that the dispute was in fact ideally suited to resolution by means of federal interpleader. Professor Chafee, upon whose work the Federal Interpleader Statute was largely based, believed that conflicting state claims of domicile presented a situation in which interpleader was "badly needed." Chafee, supra n. 8, at 379. It is, he observed, "highly unfair for both state governments to tell the taxpayer, 'You have to pay only one tax,' and then make him pay twice." Id., at 384. He pointed out that the paradox of inconsistent adjudications of a theoretically single domicile is one created by our federal system of government: "In a nation with a unified government, the situation in which estates of decedents are here left remediless would be impossible. Either only one agency would impose death taxes; or else a single court of review would determine domicile as between two local taxing agencies. . . . Somewhere within that federal system we should b able to find remedies for the frictions which that system creates." Id., at 388. I believe such a remedy is now available. See n. 10, infra. 10 I think this holding has been substantially undercut by subsequent developments. In Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662, the Court expressed an understanding of the Eleventh Amendment quite different from that manifested in Worcester County Trust Co. v. Riley, 302 U.S. 292, 58 S.Ct. 185, 82 L.Ed. 268. Thus it would appear that an estate confronted with multiple tax claims by two or more States could now bring an interpleader action in a federal district court seeking declaratory and injunctive relief against the tax officials of each State. I do not believe that the Tax Injunction Act, 28 U.S.C. § 1341, would preclude such a suit, if it were clear that the taxing States would not afford the estate a "plain, speedy and efficient remedy" for its claim that it should not be subjected to multiple taxes, e. g., by recognizing an earlier determination of domicile by a sister State. 11 At least one commentator so viewed the case when it was pending before the Court: "Texas v. Florida may become the wedge to open the door slammed in Worcester County Trust Co. v. Riley. It is so hard to believe that the Court will persist in its refusal to aid the states in the difficulty, one seizes on the slightest possibility to hope that there may yet come a solution." Nash, supra n. 8, at 314. 12 At oral argument on Texas' original motion for leave to file a bill of complaint in that case "the Court indicated that there was no justiciable controversy unless the assets of the estate were insufficient to pay the tax claims of all four of the states." Tweed & Sargent, Death and Taxes are Certain—But What of Domicile, 53 Harv.L.Rev. 68, 75 (1939). This first complaint was dismissed without prejudice. Texas v. New York, 300 U.S. 642, 57 S.Ct. 614, 81 L.Ed. 857. It was upon Texas' amended complaint, plainly alleging "on information and belief" that the assets were insufficient to meet all claims, that the Court took jurisdiction in Texas v. Florida. See also Massachusetts v. Missouri, 308 U.S. 1, 15, 60 S.Ct. 39, 84 L.Ed. 3. 13 In Western Union Telegraph Co. v. Pennsylvania, 368 U.S. 71, 82 S.Ct. 199, 7 L.Ed.2d 139, the Court held, by contrast, that a holder of tangible property is denied due process by a state-court judgment of escheat that does not and cannot protect the holder from the escheat claim of another State, and that the proper procedure was for the competing States to invoke the original jurisdiction of this Court. Because the Court held that the States could not constitutionally enforce their escheat laws in their own courts, this Court was the only remaining forum in which a State could escheat property that other States claimed. The situation in which the present case arises is quite different, since there is no constitutional impediment to both California and Texas imposing death taxes upon the Hughes estate by proceedings in their own courts. 14 See nn. 9 and 10, supra. 15 The injury would be the same whatever the source of each State's claim upon the debtor. The closest analogue of the State's complaint would seem to be the petition for a declaration of involuntary bankruptcy—a remedy created entirely by statute, not by "accepted doctrines of the common law or equity systems of jurisprudence, which are guides to decision of cases within the original jurisdiction of this Court." Texas v. Florida, 306 U.S., at 405, 59 S.Ct. 563. See generally 1 W. Collier on Bankruptcy, &Par; 0.01-0.03 (1974). I am not certain that our duty to "exercise [the] jurisdiction which is given," Cohens v. Virginia, 6 Wheat. 264, 404, 5 L.Ed. 257, compels or even empowers us to create such a remedy for the sovereign States. The status of unsatisfied creditor does not necessarily create the kind of controversy between States that can or should be resolved by means of adjudication under this Court's original jurisdiction. This may, rather, be the kind of dispute that is best resolved by the contending States through negotiation or arbitration. See New York v. New Jersey, 256 U.S. 296, 313, 41 S.Ct. 492, 65 L.Ed. 937; Texas v. Florida, supra, 306 U.S., at 428, 59 S.Ct. 563 (Frankfurter, J., dissenting). Tweed & Sargent, supra n. 12, at 77. Indeed many States have adopted procedures for arbitration or compromise of precisely the kind of dispute presented here. See Uniform Interstate Arbitration of Death Taxes Act, 8 U.L.A. 255 (1972); 4 CCH Inh. Est. & Gift Tax Rep. ¶ 12,035 (1975).

89

437 U.S. 617 98 S.Ct. 2531 57 L.Ed.2d 475 CITY OF PHILADELPHIA et al., Appellants,v.State of NEW JERSEY et al. No. 77-404. Argued March 27, 1978. Decided June 23, 1978. Syllabus New Jersey statute (ch. 363) that prohibits the importation of most "solid or liquid waste which originated or was collected outside the territorial limits of the State . . . " held to violate the Commerce Clause of the United States Constitution. Pp. 621-629. (a) All objects of interstate trade merit Commerce Clause protection and none is excluded from the definition of "commerce" at the outset; hence, contrary to the suggestion of the court below, there can be no doubt that the banning of "valueless" out-of-state wastes by ch. 363 implicates constitutional protection. Bowman v. Chicago & Northwestern R. Co., 125 U.S. 465, 8 S.Ct. 689, 31 L.Ed. 700, distinguished. Pp. 621-623. (b) The crucial inquiry here must be directed to determining whether ch. 363 is basically an economic protectionist measure, and thus virtually per se invalid, or a law directed at legitimate local concerns that has only incidental effects on interstate commerce. Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174. Pp. 623-624. (c) Since the evil of protectionism can reside in legislative means as well as legislative ends, it is immaterial whether the legislative purpose of ch. 363 is to protect New Jersey's environment or its economy, for whatever the purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently. Both on its face and in its plain effect ch. 363 violates this principle of nondiscrimination. A State may not attempt to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade, as ch. 363 seeks to do by imposing on out-of-state commercial interests the full burden of conserving New Jersey's remaining landfill space. Pp. 625-628. (d) The New Jersey statute cannot be likened to a quarantine law which bans importation of articles of commerce because of their innate harmfulness and not because of their origin. Though New Jersey concedes that out-of-state waste is no different from domestic waste, it has banned the former while leaving its landfill sites open to the latter, thus trying to saddle those outside the State with the entire burden of slowing the flow of wastes into New Jersey's remaining landfill sites. Pp. 628-629. 73 N.J. 562, 376 A.2d 888, reversed. Herbert F. Moore, Princeton, N. J., for appellants. Stephen Skillman, Trenton, N. J., for appellees. Mr. Justice STEWART delivered the opinion of the Court. 1 A New Jersey law prohibits the importation of most "solid or liquid waste which originated or was collected outside the territorial limits of the State . . .." In this case we are required to decide whether this statutory prohibition violates the Commerce Clause of the United States Constitution. 2 * The statutory provision in ques ion is ch. 363 of 1973 N.J. Laws, which took effect in early 1974. In pertinent part it provides: 3 "No person shall bring into this State any solid or liquid waste which originated or was collected outside the territorial limits of the State, except garbage to be fed to swine in the State of New Jersey, until the commissioner [of the State Department of Environmental Protection] shall determine that such action can be permitted without endangering the public health, safety and welfare and has promulgated regulations permitting and regulating the treatment and disposal of such waste in this State." N.J.Stat.Ann. § 13:1I-10 (West Supp. 1978).1 4 As authorized by ch. 363, the Commissioner promulgated regulations permitting four categories of waste to enter the State.2 Apart from these narrow exceptions, however, New Jersey closed its borders to all waste from other States. 5 Immediately affected by these developments were the operators of private landfills in New Jersey, and several cities in other States that had agreements with these operators for waste disposal. They brought suit against New Jersey and its Department of Environmental Protection in state court, attacking the statute and regulations on a number of state and federal grounds. In an oral opinion granting the plaintiffs' motion for summary judgment, the trial court declared the law unconstitutional because it discriminated against interstate commerce. The New Jersey Supreme Court consolidated this case with another reaching the same conclusion, Hackensack Meadowlands Development Comm'n v. Municipal Sanitary Landfill Auth., 127 N.J.Super. 160, 316 A.2d 711, and reversed, 68 N.J. 451, 348 A.2d 505. It found that ch. 363 advanced vital health and environmental objectives with no economic discrimination against, and with little burden upon, interstate commerce, and that the law was therefore permissible under the Commerce Clause of the Constitution. The court also found no congressional intent to pre-empt ch. 363 by enacting in 1965 the Solid Waste Disposal Act, 79 Stat. 997, 42 U.S.C. § 3251 et seq., as amended by the Resource Recovery Act of 1970, 84 Stat. 1227. 6 The plaintiffs then appealed to this Court.3 After noting probable jurisdiction, 425 U.S. 910, 96 S.Ct. 1504, 47 L.Ed.2d 760, and hearing oral argume t, we remanded for reconsideration of the appellants' pre-emption claim in light of the newly enacted Resource Conservation and Recovery Act of 1976, 90 Stat. 2795. 430 U.S. 141, 97 S.Ct. 987, 51 L.Ed.2d 224. Again the New Jersey Supreme Court found no federal pre-emption of the state law, 73 N.J. 562, 376 A.2d 888, and again we noted probable jurisdiction, 434 U.S. 964, 98 S.Ct. 501, 54 L.Ed.2d 448. We agree with the New Jersey court that the state law has not been pre-empted by federal legislation.4 The dispositive question, therefore, is whether the law is constitutionally permissible in light of the Commerce Clause of the Constitution.5 II 7 Before it addressed the merits of the appellants' claim, the New Jersey Supreme Court questioned whether the interstate movement of those wastes banned by ch. 363 is "commerce" at all within the meaning of the Commerce Clause. Any doubts on that score should be laid to rest at the outset. 8 The state court expressed the view that there may be two definitions of "commerce" for constitutional purposes. When relied on "to support some exertion of federal control or regulation," the Commerce Clause permits "a very sweeping concept" of commerce. 68 N.J., at 469, 348 A.2d, at 514. But when relied on "to strike down or restrict state legislation," that Clause and the term "commerce" have a "much more confined . . . reach." Ibid. 9 The state court reached this conclusion in an attempt to reconcile modern Commerce Clause concepts with several old cases of this Court holding that States can prohibit the importation of some objects because they "are not legitimate subjects of trade and commerce." Bowman v. Chicago & Northwestern R. Co., 125 U.S. 465, 489, 8 S.Ct. 689, 700, 31 L.Ed. 700. These articles include items "which, on account of their existing condition, would bring in and spread disease, pestilence, and death, such as rags or other substances infect d with the germs of yellow fever or the virus of small-pox, or cattle or meat or other provisions that are diseased or decayed, or otherwise, from their condition and quality, unfit for human use or consumption." Ibid. See also Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 525, 55 S.Ct. 497, 501, 79 L.Ed. 1032 and cases cited therein. The state court found that ch. 363 as narrowed by the state regulations, see n. 2, supra, banned only "those wastes which can[not] be put to effective use," and therefore those wastes were not commerce at all, unless "the mere transportation and disposal of valueless waste between states constitutes interstate commerce within the meaning of the constitutional provision." 68 N.J., at 468, 348 A.2d, at 514. 10 We think the state court misread our cases, and thus erred in assuming that they require a two-tiered definition of commerce. In saying that innately harmful articles "are not legitimate subjects of trade and commerce," the Bowman Court was stating its conclusion, not the starting point of its reasoning. All objects of interstate trade merit Commerce Clause protection; none is excluded by definition at the outset. In Bowman and similar cases, the Court held simply that because the articles' worth in interstate commerce was far outweighed by the dangers inhering in their very movement, States could prohibit their transportation across state lines. Hence, we reject the state court's suggestion that the banning of "valueless" out-of-state wastes by ch. 363 implicates no constitutional protection. Just as Congress has power to regulate the interstate movement of these wastes, States are not free from constitutional scrutiny when they restrict that movement. Cf. Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 802-814, 96 S.Ct. 2488, 2494-2500, 49 L.Ed.2d 220; Meat Drivers v. United States, 371 U.S. 94, 83 S.Ct. 162, 9 L.Ed.2d 150. III A. 11 Although the Constitution gives Congress the power to regulate commerce among the States, many subjects of potential federal regulation under that power inevitably escape congressional attention "because of their local character and their number and diversity." South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U.S. 177, 185, 58 S.Ct. 510, 513, 82 L.Ed. 734. In the absence of federal legislation, these subjects are open to control by the States so long as they act within the restraints imposed by the Commerce Clause itself. See Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 440, 98 S.Ct. 787, 793, 794, 54 L.Ed.2d 664. The bounds of these restraints appear nowhere in the words of the Commerce Clause, but have emerged gradually in the decisions of this Court giving effect to its basic purpose. That broad purpose was well expressed by Mr. Justice Jackson in his opinion for the Court in H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537-538, 69 S.Ct. 657, 665, 93 L.Ed. 865: 12 "This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy, including the vital power of erecting customs barriers against foreign competition, has as its corollary that the states are not separable economic units. As the Court said in Baldwin v. Seelig, 294 U.S. 511, 527, 55 S.Ct. 497, 79 L.Ed. 1032, 38 A.L.R. 286, 'what is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation.' " 13 The opinions of the Court through the years have reflected an alertness to the evils of "economic isolation" and protectionism, while at the same time recognizing that incidental burdens on interstate commerce may be unavoidable when a State legislates to safeguard the health and safety of its people. Thus, where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected. See, e. g., H. P. Hood & Sons, Inc. v. Du Mond, supra; Too er v. Witsell, 334 U.S. 385, 403-406, 68 S.Ct. 1156, 1165-1167, 92 L.Ed. 1460; Baldwin v. G. A. F. Seelig, Inc., supra; Buck v. Kuykendall, 267 U.S. 307, 315-316, 45 S.Ct. 324, 325-326, 69 L.Ed. 623. The clearest example of such legislation is a law that overtly blocks the flow of interstate commerce at a State's borders. Cf. Welton v. Missouri, 91 U.S. 275, 23 L.Ed. 347. But where other legislative objectives are credibly advanced and there is no patent discrimination against interstate trade, the Court has adopted a much more flexible approach, the general contours of which were outlined in Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174: 14 "Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. . . . If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities." 15 See also Raymond Motor Transportation, Inc. v. Rice, supra, 437 U.S., at 441-442, 98 S.Ct., at 787; Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 352-354, 97 S.Ct. 2434, 2446-2447, 53 L.Ed.2d 383; Great A & P Tea Co. v. Cottrell, 424 U.S. 366, 371-372, 96 S.Ct. 923, 927-928, 47 L.Ed.2d 55. 16 The crucial inquiry, therefore, must be directed to determining whether ch. 363 is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental. B 17 The purpose of ch. 363 is set out in the statute itself as follows: 18 "The Legislature finds and determines that . . . the volume of solid and liquid waste continues to rapidly increase, that the treatment and disposal of these wastes continues to pose an even greater threat to the quality of the environment of New Jersey, that the available and appropriate land fill sites within the State are being diminished, that the environment continues to be threatened by the treatment and disposal of waste which originated or was collected outside the State, and that the public health, safety and welfare require that the treatment and disposal within this State of all wastes generated outside of the State be prohibited." 19 The New Jersey Supreme Court accepted this statement of the state legislature's purpose. The state court additionally found that New Jersey's existing landfill sites will be exhausted within a few years; that to go on using these sites or to develop new ones will take a heavy environmental toll, both from pollution and from loss of scarce open lands; that new techniques to divert waste from landfills to other methods of disposal and resource recovery processes are under development, but that these changes will require time; and finally, that "the extension of the lifespan of existing landfills, resulting from the exclusion of out-of-state waste, may be of crucial importance in preventing further virgin wetlands or other undeveloped lands from being devoted to landfill purposes." 68 N.J., at 460-465, 348 A.2d, at 509-512. Based on these findings, the court concluded that ch. 363 was designed to protect, not the State's economy, but its environment, and that its substantial benefits outweigh its "slight" burden on interstate commerce. Id., at 471-478, 348 A.2d, at 515-519. 20 The appellants strenuously contend that ch. 363, "while outwardly cloaked 'in the currently fashionable garb of environmental protection,' . . . is actually no more than a legislative effort to suppress competition and stabilize the cost of solid waste disposal for New Jersey residents . . .." They cite passages of legislative history suggesting that the problem addressed by ch. 363 is primarily financial: Stemming the flow of out-of-state waste into certain landfill sites will extend their lives, thus delaying the day when New Jersey cities must transport their waste to more distant and expensive sites. 21 The appellees, on the other hand, deny that ch. 363 was motivated by financial concerns or economic protectionism. In the words of their brief, "[n]o New Jersey commercial interests stand to gain advantage over competitors from outside the state as a result of the ban on dumping out-of-state waste." Noting that New Jersey landfill operators are among the plaintiffs, the appellee's brief argues that "[t]he complaint is not that New Jersey has forged an economic preference for its own commercial interests, but rather that it has denied a small group of its entrepreneurs an economic opportunity to traffic in waste in order to protect the health, safety and welfare of the citizenry at large." 22 This dispute about ultimate legislative purpose need not be resolved, because its resolution would not be relevant to the constitutional issue to be decided in this case. Contrary to the evident assumption of the state court and the parties, the evil of protectionism can reside in legislative means as well as legislative ends. Thus, it does not matter whether the ultimate aim of ch. 363 is to reduce the waste disposal costs of New Jersey residents or to save remaining open lands from pollution, for we assume New Jersey has every right to protect its residents' pocketbooks as well as their environment. And it may be assumed as well that New Jersey may pursue those ends by slowing the flow ofall waste into the State's remaining landfills, even though interstate commerce may incidentally be affected. But whatever New Jersey's ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently. Both on its face and in its plain effect, ch. 363 violates this principle of nondiscrimination. 23 The Court has consistently found parochial legislation of this kind to be constitutionally invalid, whether the ultimate aim of the legislation was to assure a steady supply of milk by erecting barriers to allegedly ruinous outside competition, Baldwin v. G. A. F. Seelig, Inc., 294 U.S., at 522-524, 55 S.Ct., at 500, or to create jobs by keeping industry within the State, Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 10, 49 S.Ct. 1, 3, 73 L.Ed. 147; Johnson v. Haydel, 278 U.S. 16, 49 S.Ct. 6, 73 L.Ed. 155; Toomer v. Witsell, 334 U.S., at 403-404, 68 S.Ct., at 1166; or to preserve the State's financial resources from depletion by fencing out indigent immigrants, Edwards v. California, 314 U.S. 160, 173-174, 62 S.Ct. 164, 166-167, 86 L.Ed. 119. In each of these cases, a presumably legitimate goal was sought to be achieved by the illegitimate means of isolating the State from the national economy. 24 Also relevant here are the Court's decisions holding that a State may not accord its own inhabitants a preferred right of access over consumers in other States to natural resources located within its borders. West, Attorney General of Oklahoma v. Kansas Natural Gas Co., 221 U.S. 229, 31 S.Ct. 564, 55 L.Ed. 716; Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117. These cases stand for the basic principle that a "State is without power to prevent privately owned articles of trade from being shipped and sold in interstate commerce on the ground that they are required to satisfy local demands or because they are needed by the people of the State."6 Foster-Fountain Packing Co. v. Haydel, supra, 278 U.S. at 10, 49 S.Ct. at 4. The New Jersey law at issue in this case falls squarely within the area that the Commerce Clause puts off limits to state regulation. On its face, it imposes on out-of-state commercial interests the full burden of conserving the State's remaining landfill space. It is true that in our previous cases the scarce natural resource was itself the article of commerce, whereas here the scarce resource and the article of commerce are distinct. But that difference is without consequence. In both instances, the State has overtly moved to slow or freeze the flow of commerce for protectionist reasons. It does not matter that the State has shut the article of commerce inside the State in one case and outside the State in the other. What is crucial is the attempt by one State to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade. 25 The appellees argue that not all laws which facially discriminate against out-of-state commerce are forbidden protectionist regulations. In particular, they point to quarantine laws, which this Court has repeatedly upheld even though they appear to single out interstate commerce for special treatment. See Baldwin v. G. A. F. Seelig, Inc., supra, 294 U.S., at 525, 55 S.Ct., at 501; Bowman v. Chicago & Northwestern R. Co., 125 U.S., at 489, 8 S.Ct., at 700. In the appellees' view, ch. 363 is analogous to such health-protective measures, since it reduces the exposure of New Jersey residents to the allegedly harmful effects of landfill sites. 26 It is true that certain quarantine laws have not been considered forbidden protectionist measures, even though they were directed against out-of-state commerce. See Asbell v. Kansas, 209 U.S. 251, 28 S.Ct. 485, 52 L.Ed. 778; Reid v. Colorado, 187 U.S. 137, 23 S.Ct. 92, 47 L.Ed. 108; Bowman v. Chicago & Northwestern R. Co., 125 U.S., at 489, 8 S.Ct., at 700. But those quarantine laws banned the importation of articles such as diseased livestock that required destruction as soon as possible because their very movement risked contagion and other evils. Those laws thus did not discriminate against interstate commerce as such, but simply prevented traffic in noxious articles, whatever their origin. 27 The New Jersey statute is not such a quarantine law. There has been no claim here that the very movement of waste into or through New Jersey endangers health, or that waste must be disposed of as soon and as close to its point of generation as possible. The harms caused by waste are said to arise after its disposal in landfill sites, and at that point, as New Jersey concedes, there is no basis to distinguish out-of-state waste from domestic waste. If one is inherently harmful, so is the other. Yet New Jersey has banned the former while leaving its landfill sites open to the latter. The New Jersey law blocks the importation of waste in an obvious effort to saddle those outside the State with the entire burden of slowing the flow of refuse into New Jersey's remaining landfill sites. That legislative effort is clearly impermissible under the Commerce Clause of the Constitution. 28 Today, cities in Pennsylvania and New York find it expedient or necessary to send their waste into New Jersey for disposal, and New Jersey claims the right to close its borders to such traffic. Tomorrow, cities in New Jersey may find it expedient or necessary to send their waste into Pennsylvania or New York for disposal, and those States might then claim the right to close their borders. The Commerce Clause will protect New Jersey in the future, just as it protects her neighbors now, from efforts by one State to isolate itself in the stream of interstate commerce from a problem shared by all. The judgment is 29 Reversed. 30 Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting. 31 A growing problem in our Nation is the sanitary treatment and disposal of solid waste.1 For many years, solid waste was incinerated. Because of the significant environmental problems attendant on incineration, however, this method of solid waste disposal has declined in use in many localities, including New Jersey. "Sanitary" landfills have replaced incineration as the principal method of disposing of solid waste. In ch. 363 of the 1973 N.J. Laws, the State of New Jersey legislatively recognized the unfortunate fact that landfills also present extremely serious health and safety problems. First, in New Jersey, "virtually all sanitary landfills can be expected to produce leachate, a noxious and highly polluted liquid which is seldom visible and frequently pollutes . . . ground and surface waters." App. 149. The natural decomposition process which occurs in landfills also produces large quantities of methane and thereby presents a significant explosion hazard. Id., at 149, 156-157. Landfills can also generate "health hazards caused by rodents, fires and scavenger birds" and, "needless to say, do not help New Jersey's aesthetic appearance nor New Jersey's noise or water or air pollution problems." Supp.App. 5. 32 The health and safety hazards associated with landfills present appellees with a currently unsolvable dilemma. Other, hopefully safer, methods of disposing of solid wastes are still in the development stage and cannot presently be used. But appellees obviously cannot completely stop the tide of solid waste that its citizens will produce in the interim. For the moment, therefore, appellees must continue to use sanitary landfills to dispose of New Jersey's own solid waste despite the critical environmental problems thereby created. 33 The question presented in this case is whether New Jersey must also continue to receive and dispose of solid waste from neighboring States, even though these will inexorably increase the health problems discussed above.2 The Court answers this question in the affirmative. New Jersey must either prohibit all landfill operations, leaving itself to cast about for a presently nonexistent solution to the serious problem of disposing of the waste generated within its own borders, or it must accept waste from every portion of the United States, thereby multiplying the health and safety problems which would result if it dealt only with such wastes generated within the State. Because past precedents establish that the Commerce Clause does not present appellees with such a Hobson's choice, I dissent. 34 The Court recognizes, ante, at 621-622, that States can prohibit the importation of items " 'which, on account of their existing condition, would bring in and spread disease, pestilence, and death, such as rags or other substances infected with the germs of yellow fever or the virus of small-pox, or cattle or meat or other provisions that are diseased or decayed or otherwise, from their condition and quality, unfit for human use or consumption.' " Bowman v. Chicago & Northwestern R. Co., 125 U.S. 465, 489, 8 S.Ct. 689, 700, 31 L.Ed. 700 (1888). See Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 525, 55 S.Ct. 497, 501, 79 L.Ed. 1032 (1935); Sligh v. Kirkwood, 237 U.S. 52, 59-60, 35 S.Ct. 501, 502, 59 L.Ed. 835 (1915); Asbell v. Kansas, 209 U.S. 251, 28 S.Ct. 485, 52 L.Ed. 778 (1908); Railroad Co. v. Husen, 95 U.S. 465, 472, 24 L.Ed. 527 (1878). As the Court points out, such "quarantine laws have not been considered forbidden protectionist measures, even though they were directed against out-of-state commerce." Ante, at 628 (emphasis added). 35 In my opinion, these cases are dispositive of the present one. Under them, New Jersey may require germ-infected rags or diseased meat to be disposed of as best as possible within the State, but at the same time prohibit the importation of such items for disposal at the facilities that are set up within New Jersey for disposal of such material generated within the State. The physical fact of life that New Jersey must somehow dispose of its own noxious items does not mean that it must serve as a depository for those of every other State. Similarly, New Jersey should be free under our past precedents to prohibit the importation of solid waste because of the health and safety problems that such waste poses to its citizens. The fact that New Jersey continues to, and indeed must continue to, dispose of its own solid waste does not mean that New Jersey may not prohibit the importation of even more solid waste into the State. I simply see no way to distinguish solid waste, on the record of this case, from germ-infected rags, diseased meat, and other noxious items. 36 The Court's effort to distinguish these prior cases is unconvincing. It first asserts that the quarantine laws which have previously been upheld "banned the importation of articles such as diseased livestock that required destruction as soon as possible because their very movement risked contagion and other evils." Ante, at 628-629. According to the Court, the New Jersey law is distinguishable from these other laws, and invalid, because the concern of New Jersey is not with the movement of solid waste but with the present inability to safely dispose of it once it reaches its destination. But I think it far from clear that the State's law has as limited a focus as the Court imputes to it: Solid waste which is a health hazard when it reaches its destination may in all likelihood be an equally great health hazard in transit. 37 Even if the Court is correct in its characterization of New Jersey's concerns, I do not see why a State may ban the importation of items whose movement risks contagion, but cannot ban the importation of items which, although they may be transported into the State without undue hazard, will then simply pile up in an ever increasing danger to the public's health and safety. The Commerce Clause was not drawn with a view to having the validity of state laws turn on such pointless distinctions. 38 Second, the Court implies that the challenged laws must be invalidated because New Jersey has left its landfills open to domestic waste. But, as the Court notes, ante, at 628, this Court has repeatedly upheld quarantine laws "even though they appear o single out interstate commerce for special treatment." The fact that New Jersey has left its landfill sites open for domestic waste does not, of course, mean that solid waste is not innately harmful. Nor does it mean that New Jersey prohibits importation of solid waste for reasons other than the health and safety of its population. New Jersey must out of sheer necessity treat and dispose of its solid waste in some fashion, just as it must treat New Jersey cattle suffering from hoof-and-mouth disease. It does not follow that New Jersey must, under the Commerce Clause, accept solid waste or diseased cattle from outside its borders and thereby exacerbate its problems. 39 The Supreme Court of New Jersey expressly found that ch. 363 was passed "to preserve the health of New Jersey residents by keeping their exposure to solid waste and landfill areas to a minimum." 68 N.J. 451, 473, 348 A.2d 505, 516. The Court points to absolutely no evidence that would contradict this finding by the New Jersey Supreme Court. Because I find no basis for distinguishing the laws under challenge here from our past cases upholding state laws that prohibit the importation of items that could endanger the population of the State, I dissent. 1 New Jersey enacted a Waste Control Act, N.J.Stat.Ann. § 13:1I-1 et seq. (West Supp. 1978), in early 1973. This Act empowered the State Commissioner of Environmental Protection to promulgate rules banning the movement of solid waste into the State. Within a year, the state legislature enacted ch. 363, which reversed the presumption and blocked the importation of all categories of waste unless excepted by rules of the Commissioner. 2 Effective as of February 1974, these regulations provided as follows: "(a) No person shall bring into this State, or accept for disposal in this State, any solid or liquid waste which originated or was collected outside the territorial limits of this State. This Section shall not apply to: "1. Garbage to be fed to swine in the State of New Jersey; "2. Any separated waste material, including newsprint, paper, glass and metals, that is free from putrescible materials and not mixed with other solid or liquid waste that is intended for a recycling or reclamation facility; "3. Municipal solid waste to be separated or processed into usable secondary materials, including fuel and heat, at a resource recovery facility provided that not less than 70 per cent of the thru-put of any such facility is to be separated or processed into usable secondary materials; and "4. Pesticides, hazardous waste, chemical waste, bulk liquid, bulk semi-liquid, which is to be treated, processed or recovered in a solid waste disposal facility which is registered with the Department for such treatment, processing or recovery, other than by disposal on or in the lands of this State." N.J.Admin.Code 7:1-4.2 (Supp. 1977). 3 The decision of the New Jersey Supreme Court disposed of the appellants' pre-emption and Commerce Clause claims, but remanded the case to the trial court for further proceedings on the other claims. The appellants then dismissed with prejudice the other counts in their complaint so that there would be a final judgment from which they could appeal to this Court. 4 The surviving provisions of the 1965 Solid Waste Disposal Act, 79 Stat. 997, the Resource Recovery Act of 1970, 84 Stat. 1227, and the Resource Conservation and Recovery Act of 1976, 90 Stat. 2795, are now codified as the Solid Waste Disposal Act, found at 42 U.S.C. § 6901 et seq. (1976 ed.). From our review of this federal legislation, we find no "clear and manifest purpose of Congress," Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447, to pre-empt the entire field of interstate waste management or transportation, either by express statutory command, see Jones v. Rath Packing Co., 430 U.S. 519, 530-531, 97 S.Ct. 1305, 1311-1312, 51 L.Ed.2d 604 or by implicit legislative design, see City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 633, 93 S.Ct. 1854, 36 L.Ed.2d 547. To the contrary, Congress expressly has provided that "the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies . . .." 42 U.S.C. § 6901(a)(4) (1976 ed.). Similarly, ch. 363 is not pre-empted because of a square conflict with particular provisions of federal law or because of general incompatibility with basic federal objectives. See Ray v. Atlantic Richfield Co., 435 U.S. 151, 158, 98 S.Ct. 988, 995, 55 L.Ed.2d 179; Jones v. Rath Packing Co., supra, 430 U.S. at 540-541, 97 S.Ct. at 1316. In short, we agree with the New Jersey Supreme Court that ch. 363 can be enforced consistently with the program goals and the respective federal-state roles intended by Congress when it enacted the federal legislation. 5 U.S.Const., Art. I, § 8, cl. 3. 6 We express no opinion about New Jersey's power, consistent with the Commerce Clause, to restrict to state residents access to state-owned resources, compare Douglas v. Seacoast Products, Inc., 431 U.S. 265, 283-287, 97 S.Ct. 1740, 1750-1753, 52 L.Ed.2d 304, with id., at 287-290, 97 S.Ct., at 1753-1754 (REHNQUIST, J., concurring and dissenting); Toomer v. Witsell, 334 U.S. 385, 404, 68 S.Ct. 1156, 1166, 92 L.Ed. 1460, or New Jersey's power to spend state funds solely on behalf of state residents and businesses, compare Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 805-810, 96 S.Ct. 2488, 2495-2498, 49 L.Ed.2d 220; id., at 815, 96 S.Ct. at 2500 (STEVENS, J., concurring) with id., at 817, 96 S.Ct., at 2501 (BRENNAN, J., dissenting). Also compare South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U.S. 177, 187, 58 S.Ct. 510, 514, 82 L.Ed. 734, with Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 783, 65 S.Ct. 1515, 1527, 89 L.Ed. 1915. 1 Congress specifically recognized the substantial dangers to the environment and public health that are posed by current methods of disposing of solid waste in the Resource Conservation and Recovery Act of 1976, 90 Stat. 2795. As the Court recognizes, ante, at 621, n. 4, the laws under challenge here "can be enforced consistently with the program goals and the respective federal-state roles intended by Congress when it enacted" this and other legislation and are thus not pre-empted by any federal statutes. 2 Regulations of the New Jersey Department of Environmental Protection "except from the ban on out-of-state refuse those types of solid waste which may have a value for recycling or for use as fuel." App. 47. Thus, the ban under challenge would appear to be strictly limited to that waste which will be disposed of in sanitary landfills and thereby pose health and safety dangers to the citizens of New Jersey.

78

437 U.S. 678 98 S.Ct. 2565 57 L.Ed.2d 522 Terrell Don HUTTO et al., Petitioners,v.Robert FINNEY et al. No. 76-1660. Argued Feb. 21, 1978. Decided June 23, 1978. Rehearing Denied Jan. 15, 1979. See 439 U.S. 1122, 99 S.Ct. 1035. Syllabus After finding in respondent prison inmates' action against petitioner prison officials that conditions in the Arkansas prison system constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments, the District Court entered a series of detailed remedial orders. On appeal to the Court of Appeals, petitioners challenged two aspects of that relief: (1) an order placing a maximum limit of 30 days on confinement in punitive isolation; and (2) an award of attorney's fees to be paid out of Department of Correction funds, based on the District Court's finding that petitioners had acted in bad faith in failing to cure the previously identified violations. The Court of Appeals affirmed and assessed an additional attorney's fee to cover services on appeal. Held: 1. The District Court did not err in including the 30-day limitation on sentences to isolation as part of its comprehensive remedy to correct the constitutional violations. Where the question before the court was whether these past constitutional violations had been remedied, it was entitled to consider the severity of the violations in assessing the constitutionality of conditions in the isolation cells, the length of time each inmate spent in isolation being simply one consideration among many. Pp. 685-688. 2. The District Court's award of attorney's fees to be paid out of Department of Correction funds is adequately supported by its finding that petitioners had acted in bad faith, and does not violate the Eleventh Amendment. The award served the same purpose as a remedial fine imposed for civil contempt, and vindicated the court's authority over a recalcitrant litigant. There being no reason to distinguish the award from any other penalty imposed to enforce a prospective injunction, the Eleventh Amendment's substantive protections do not prevent the award against the Department's officers in their official capacities, and the fact that the order directed the award to be paid out of Department funds rather than being assessed against petitioners in their official capacities, does not constitute reversible error. Pp. 689-693. 3. The Civil Rights Attorney's Fees Awards Act of 1976, which provides that "[i]n any action" to enforce certain civil rights laws (including the law under which this action was brought), federal courts may award prevailing parties reasonable attorney's fees "as part of the costs," supports the additional award of attorney's fees by the Court of Appeals. Pp. 693-700. (a) The Act's broad language and the fact that it primarily applies to laws specifically passed to restrain unlawful state action, as well as the Act's legislative history, make it clear that Congress, when it passed the Act, intended to exercise its power to set aside the States' immunity from retroactive relief in order to enforce the Fourteenth Amendment, and to authorize fee awards payable by the States when their officials are sued in their official capacities. Pp. 693-694. (b) Costs have traditionally been awarded against States without regard for the States' Eleventh Amendment immunity, and it is much too late to single out attorney's fees as the one kind of litigation cost whose recovery may not be authorized by Congress without an express statutory waiver of States' immunity. Pp. 694-698. (c) The fact that neither the State nor the Department of Correction was expressly named as a defendant, does not preclude the Court of Appeals' award, since although the Eleventh Amendment prevented respondents from suing the State by name, their injunctive suit against petitioner prison officials was, for all practical purposes, brought against the State, so that absent any indication that petitioners acted in bad faith before the Court of Appeals, the Department of Correction is the entity intended by Congress to bear the burden of the award. Pp. 699-700. 548 F.2d 740, affirmed. Garner L. Taylor, Jr., Little Rock, Ark., for petitioners. Philip E. Kaplan, Little Rock, Ark., for respondents. Mr. Justice STEVENS delivered the opinion of the Court.* 1 After finding that conditions in the Arkansas penal system constituted cruel and unusual punishment, the District Court entered a series of detailed remedial orders. On appeal to the United States Court of Appeals for the Eighth Circuit, petitioners1 challenged two aspects of that relief: (1) an order placing a maximum limit of 30 days on confinement in punitive isolation; and (2) an award of attorney's fees to be paid out of Department of Correction funds. The Court of Appeals affirmed and assessed an additional attorney's fee to cover services on appeal. 548 F.2d 740 (1977). We granted certiorari, 434 U.S. 901, 98 S.Ct. 295, 54 L.Ed.2d 187, and now affirm. 2 This litigation began in 1969; it is a sequel to two earlier cases holding that conditions in the Arkansas prison system violated the Eighth and Fourteenth Amendments.2 Only a brief summary of the facts is necessary to explain the basis for the remedial orders. 3 The routine conditions that the ordinary Arkansas convict had to endure were characterized by the District Court as "a dark and evil world completely alien to the free world." Holt v. Sarver, 309 F.Supp. 362, 381 (ED Ark. 1970) (Holt II). That characterization was amply supported by the evidence.3 The punishments for misconduct not serious enough to result in punitive isolation were cruel,4 unusual,5 and unpredictable.6 It is the discipline known as "punitive isolation" that is most relevant for present purposes. 4 Confinement in punitive isolation was for an indeterminate period of time. An average of 4, and sometimes as many as 10 or 11, prisoners were crowded into windowless 8'x10' cells containing no furniture other than a source of water and a toilet that could only be flushed from outside the cell. Holt v. Sarver, 300 F.Supp. 825, 831-832 (ED Ark.1969) (Holt I ). At night the prisoners were given mattresses to spread on the floor. Although some prisoners suffered from infectious diseases such as hepatitis and venereal disease, mattresses were removed and jumbled together each morning, then returned to the cells at random in the evening. Id., at 832. Prisoners in isolation received fewer than 1,000 calories a day;7 their meals consisted primarily of 4-inch squares of "grue," a substance created by mashing meat, potatoes, oleo, syrup, vegetables, eggs, and seasoning into a paste and baking the mixture in a pan. Ibid. 5 After finding the conditions of confinement unconstitutional, the District Court did not immediately impose a detailed remedy of its own. Instead, it directed the Department of Correction to "make a substantial start" on improving conditions and to file reports on its progress. Holt I, supra, at 833-834. When the Department's progress proved unsatisfactory, a second hearing was held. The District Court found some improvements, but concluded that prison conditions remained unconstitutional. Holt II, 309 F.Supp., at 383. Again the court offered prison administrators an opportunity to devise a plan of their own for remedying the constitutional violations, but this time the court issued guidelines, identifying four areas of change that would cure the worst evils: improving conditions in the isolation cells, increasing inmate safety, eliminating the barracks sleeping arrangements, and putting an end to the trusty system. Id., at 385. The Department was ordered to move as rapidly as funds became available. Ibid. 6 After this order was affirmed on appeal, Holt v. Sarver, 442 F.2d 304 (CA8 1971), more hearings were held in 1972 and 1973 to review the Department's progress. Finding substantial improvements, the District Court concluded that continuing supervision was no longer necessary. The court held, however, that its prior decrees would remain in effect and noted that sanctions, as well as an award of costs and attorney's fees, would be imposed if violations occurred. Holt v. Hutto, 363 F.Supp. 194, 217 (ED Ark.1973) (Holt III ). 7 The Court of Appeals reversed the District Court's decision to withdraw its supervisory jurisdiction, Finney v. Arkansas Board of Correction, 505 F.2d 194 (CA8 1974), and the District Court held a fourth set of hearings. 410 F.Supp. 251 (ED Ark.1976). It found that, in some respects, conditions had seriously deteriorated since 1973, when the court had withdrawn its supervisory jurisdiction. Cummins Farm, which the court had condemned as overcrowded in 1970 because it housed 1,000 inmates, now had a population of about 1,500. Id., at 254-255. The situation in the punitive isolation cells was particularly disturbing. The court concluded that either it had misjudged conditions in these cells in 1973 or conditions had become much worse since then. Id., at 275. There were twice as many prisoners as beds in some cells. And because inmates in punitive isolation are often violently antisocial, overcrowding led to persecution of the weaker prisoners. The "grue" diet was still in use, and practically all inmates were losing weight on it. The cells had been vandalized to a "very substantial" extent. Id., at 276. Because of their inadequate numbers, guards assigned to the punitive isolation cells frequently resorted to physical violence, using nightsticks and Mace in their efforts to maintain order. Prisoners were sometimes left in isolation for months, their release depending on "their attitudes as appraised by prison personnel." Id., at 275. 8 The court concluded that the constitutional violations identified earlier had not been cured. It entered an order that placed limits on the number of men that could be confined in one cell, required that each have a bunk, discontinued the "grue" diet, and set 30 days as the maximum isolation sentence. The District Court gave detailed consideration to the matter of fees and expenses, made an express finding that petitioners had acted in bad faith, and awarded counsel "a fee of $20,000.00 to be paid out of Department of Correction funds." Id., at 285. The Court of Appeals affirmed and assessed an additional $2,500 to cover fees and expenses on appeal. 548 F.2d, at 743. 9 * The Eighth Amendment's ban on inflicting cruel and unusual punishments, made applicable to the States by the Fourteenth Amendment, "proscribe[s] more than physically barbarous punishments." Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251. It prohibits penalties that are grossly disproportionate to the offense, Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 793, as well as those that transgress today's " 'broad and idealistic concepts of dignity, civilized standards, humanity, and decency.' " Estelle v. Gamble, supra, at 102, 97 S.Ct., at 290, quoting Jackson v. Bishop, 404 F.2d 571, 579 (CA8 1968). Confinement in a prison or in an isolation cell is a form of punishment subject to scrutiny under Eighth Amendment standards. Petitioners do not challenge this proposition; nor do they disagree with the District Court's original conclusion that conditions in Arkansas' prisons, including its punitive isolation cells, constituted cruel and unusual punishment. Rather, petitioners single out that portion of the District Court's most recent order that forbids the Department to sentence inmates to more than 30 days in punitive isolation. Petitioners assume that the District Court held that indeterminate sentences to punitive isolation always constitute cruel and unusual punishment. This assumption misreads the District Court's holding. 10 Read in its entirety, the District Court's opinion makes it abundantly clear that the length of isolation sentences was not considered in a vacuum. In the court's words, punitive isolation "is not necessarily unconstitutional, but it may be, depending on the duration of the confinement and the conditions thereof." 410 F.Supp., at 275.8 It is perfectly obvious that every decision to remove a particular inmate from the general prison population for an indeterminate period could not be characterized as cruel and unusual. If new conditions of confinement are not materially different from those affecting other prisoners, a transfer for the duration of a prisoner's sentence might be completely unobjectionable and well within the authority of the prison administrator. Cf. Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451. It is equally plain, however, that the length of confinement cannot be ignored in deciding whether the confinement meets constitutional standards. A filthy, overcrowded cell and a diet of "grue" might be tolerable for a few days and intolerably cruel for weeks or months. 11 The question before the trial court was whether past constitutional violations had been remedied. The court was entitled to consider the severity of those violations in assessing the constitutionality of conditions in the isolation cells. The court took note of the inmates' diet, the continued overcrowding, the rampant violence, the vandalized cells, and the "lack of professionalism and good judgment on the part of maximum security personnel." 410 F.Supp., at 277 and 278. The length of time each inmate spent in isolation was simply one consideration among many. We find no error in the court's conclusion that, taken as a whole, conditions in the isolation cells continued to violate the prohibition against cruel and unusual punishment. 12 In fashioning a remedy, the District Court had ample authority to go beyond earlier orders and to address each element contributing to the violation. The District Court had given the Department repeated opportunities to remedy the cruel and unusual conditions in the isolation cells. If petitioners had fully complied with the court's earlier orders, the present time limit might well have been unnecessary. But taking the long and unhappy history of the litigation into account, the court was justified in entering a comprehensive order to insure against the risk of inadequate compliance.9 13 The order is supported by the interdependence of the conditions producing the violation. The vandalized cells and the atmosphere of violence were attributable, in part, to overcrowding and to deep-seated nmities growing out of months of constant daily friction.10 The 30-day limit will help to correct these conditions.11 Moreover, the limit presents little danger of interference with prison administration, for the Commissioner of Correction himself stated that prisoners should not ordinarily be held in punitive isolation for more than 14 days. Id., at 278. Finally, the exercise of discretion in this case is entitled to special deference because of the trial judge's years of experience with the problem at hand and his recognition of the limits on a federal court's authority in a case of this kind.12 Like the Court of Appeals, we find no error in the inclusion of a 30-day limitation on sentences to punitive isolation as a part of the District Court's comprehensive remedy. II 14 The Attorney General of Arkansas, whose office has represented petitioners throughout this litigation, contends that any award of fees is prohibited by the Eleventh Amendment. He also argues that the Court of Appeals incorrectly held that fees were authorized by the Civil Rights Attorney's Fees Awards Act of 1976. We hold that the District Court's award is adequately supported by its finding of bad faith and that the Act supports the additional award by the Court of Appeals. A. The District Court Award 15 Although the Attorney General argues that the finding of bad faith does not overcome the State's Eleventh Amendment protection, he does not question the accuracy of the finding made by the District Court and approved by the Court of Appeals.13 Nor does he question the settled rule that a losing litigant's bad faith may justify an allowance of fees to the prevailing party.14 He merely argues that the order requiring that the fees be paid from public funds violates the Eleventh Amendment. 16 In the landmark decision in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 the Court held that, although prohibited from giving orders directly to a State, federal courts could enjoin state officials in their official capacities. And in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662, when the Court held that the Amendment grants the States an immunity from retroactive monetary relief, it reaffirmed the principle that state officers are not immune from prospective injunctive relief. Aware that the difference between retroactive and prospective relief "will not in many instances be that between day and night," id., at 667, 94 S.Ct., at 1357, the Court emphasized in Edelman that the distinction did not immunize the States from their obligation to obey costly federal-court orders. The cost of compliance is "ancillary" to the prospective order enforcing federal law. Id., at 668, 94 S.Ct., at 1358.15 The line between retroactive and prospective relief cannot be so rigid that it defeats the effective enforcement of prospective relief. 17 The present case requires application of that principle. In exercising their prospective powers under Ex parte Young and Edelman v. Jordan, federal courts are not reduced to issuing injunctions against state officers and hoping for compliance. Once issued, an injunction may be enforced. Many of the court's most effective enforcement weapons involve financial penalties. A criminal contempt prosecution for "resistance to [the court's] lawful . . . order" may result in a jail term or a fine. 18 U.S.C. § 401 (1976 ed.). Civil contempt proceedings may yield a conditional jail term or fine. United States v. iMine Workers, 330 U.S. 258, 305, 67 S.Ct. 677, 702, 91 L.Ed. 884. Civil contempt may also be punished by a remedial fine, which compensates the party who won the injunction for the effects of his opponent's noncompliance. Id., at 304, 67 S.Ct., at 701; Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797. If a state agency refuses to adhere to a court order, a financial penalty may be the most effective means of insuring compliance. The principles of federalism that inform Eleventh Amendment doctrine surely do not require federal courts to enforce their decrees only by sending high state officials to jail.16 The less intrusive power to impose a fine is properly treated as ancillary to the federal court's power to impose injunctive relief. 18 In this case, the award of attorney's fees for bad faith served the same purpose as a remedial fine imposed for civil contempt. It vindicated the District Court's authority over a recalcitrant litigant. Compensation was not the sole motive for the award; in setting the amount of the fee, the court said that it would "make no effort to adequately compensate counsel for the work that they have done o for the time that they have spent on the case." 410 F.Supp., at 285. The court did allow a "substantial" fee, however, because "the allowance thereof may incline the Department to act in such a manner that further protracted litigation about the prisons will not be necessary." Ibid.17 We see no reason to distinguish this award from any other penalty imposed to enforce a prospective injunction.18 Hence the substantive protections of the Eleventh Amendment do not prevent an award of attorney's fees against the Department's officers in their official capacities. 19 Instead of assessing the award against the defendants in their official capacities, the District Court directed that the fees are "to be paid out of Department of Correction funds." Ibid. Although the Attorney General objects to the form of the order,19 no useful purpose would be served by requiring that it be recast in different language. We have previously approved directives that were comparable in their actual impact on the State without pausing to attach significance to the language used the District Court.20 Even if it might have been better form to omit the reference to the Department of Correction, the use of that language is surely not reversible error. 20 Petitioners, as the losing litigants in the Court of Appeals, were ordered to pay an additional $2,500 to counsel for the prevailing parties "for their services on this appeal." 548 F.2d, at 743. The order does not expressly direct the Department of Correction to pay the award, but since petitioners are sued in their official capacities, and since they are represented by the Attorney General, it is obvious that the award will be paid with state funds. It is also clear that this order is not supported by any finding of bad faith. It is founded instead on the provisions of the Civil Rights Attorney's Fees Awards Act of 1976. Pub.L.No.94-559, 90 Stat. 2641, 42 U.S.C. § 1988 (1976 ed.). The Act declares that, in suits under 42 U.S.C. § 1983 and certain other statutes, federal courts may award prevailing parties reasonable attorney's fees "as part of the costs."21 21 As this Court made clear in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614, Congress has plenary power to set aside the States' immunity from retroactive relief in order to enforce the Fourteenth Amendment. When it passed the Act, Congress undoubtedly intended to exercise that power and to authorize fee awards payable by the States when their officials are sued in their official capacities. The Act itself could not be broader. It applies to "any" action brought to enforce certain civil rights laws. It contains no hint of an exception for States defending injunction actions; indeed, the Act primarily applies to laws passed specifically to restrain state action. See, e. g., 42 U.S.C. § 1983. 22 The legislative history is equally plain: "[I]t is intended that the attorneys' fees, like other items of costs, will be collected either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party)." S.Rep.No.94-1011, p. 5 (1976) (footnotes omitted), U.S.Code Cong. & Admin.News 1976, pp. 5908, 5913. The House Report is in accord: "The greater resources available to governments provide an ample base from which fees can be awarded to the prevailing plaintiff in suits against governmental officials or entities." H.R.Rep.No.94-1558, p. 7 (1976). The Report adds in a footnote that: "Of course, the 11th Amendment is not a bar to the awarding of counsel fees against state governments. Fitzpatrick v. Bitzer." Id., at 7 n. 14. Congress' intent was expressed in deeds as well as words. It rejected at least two attempts to amend the Act and immunize state and local governments from awards.22 23 The Attorney General does not quarrel with the rule established in Fitzpatrick v. Bitzer, supra. Rather, he argues that these plain indications of legislative intent are not enough. In his view, Congress must enact express statutory language making the States liable if it wishes to abrogate their immunity.23 The Attorney General points out that this Court has sometimes refused to impose retroactive liability on the States in the absence of an extraordinarily explicit statutory mandate. See Employees v. Missouri Public Health & Welfare Dept., 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251; see also Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662. But these cases concern retroactive liability for prelitigation conduct rather than expenses incurred in litigation seeking only prospective relief. 24 The Act imposes attorney's fees "as part of the costs." Costs have traditionally been awarded without regard for the States' Eleventh Amendment immunity. The practice of awarding costs against the States goes back to 1849 in this Court. See Missouri v. Iowa, 7 How. 660, 681, 12 L.Ed. 861, 870; North Dakota v. Minnesota, 263 U.S. 583, 44 S.Ct. 208, 68 L.Ed. 461 (collecting cases). The Court has never viewed the Eleventh Amendment as barring such awards, even in suits between States and individual litigants.24 In Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, 48 S.Ct. 97, 72 L.Ed. 168, the State challenged this Court's award of costs, but we squarely rejected the State's claim of immunity. Far from requiring an explicit abrogation of state immunity, we relied on a statutory mandate that was entirely silent on the question of state liability.25 The power to make the award was supported by "the inherent authority of the Court in the orderly administration of justice as between all parties litigant." Id., at 74, 48 S.Ct., at 99. A federal court's interest in orderly, expeditious proceedings "justifies [it] in treating the state just as any other litigant, and in imposing costs upon it" when an award is called for. Id., at 77, 48 S.Ct., at 100.26 25 Just as a federal court may treat a State like any other litigant when it assesses costs, so also many Congress amend its definition of taxable costs and have the amended class of costs apply to the States, as it does to all other litigants, without expressly stating that it intends to abrogate the States' Eleventh Amendment immunity. For it would be absurd to require an express reference to state litigants whenever a filing fee, or a new item, such as an expert witness' fee, is added to the category of taxable costs.27 26 There is ample precedent for Congress' decision to authorize an award of attorney's fees as an item of costs. In England, costs "as between solicitor and client," Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 167, 59 S.Ct. 777, 780, 83 L.Ed. 1184, are routinely taxed today, and have been awarded since 1278. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 n. 18, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141. In America, although fees are not routinely awarded, there are a large number of statutory and common-law situations in which allowable costs include counsel fees.28 Indeed, the federal statutory definition of costs, which was enacted before the Civil War and which remains in effect today, includes certain fixed attorney's fees as recoverable costs.29 In Fairmont Creamery itself, the Court awarded these statutory attorney's fees against the State of Minnesota along with other taxable costs.30 even though the governing statute said nothing about state liability. It is much too late to single out attorney's fees as the one kind of litigation cost whose recovery may not be authorized by Congress without an express statutory waiver of the States' immunity.31 Finally, the Attorney General argues that, even if attorney's fees may be awarded against a State, they should not be awarded in this case, because neither the State nor the Department is expressly named as a defendant. Although the Eleventh Amendment prevented respondents from suing the State by name, their injunctive suit against prison officials was, for all practical purposes, brought against the State. The actions of the Attorney General himself show that. His office has defended this action since it began. See Holt I, 300 F.Supp., at 826. The State apparently paid earlier fee awards; and it was the State's lawyers who decided to bring this appeal, thereby risking another award.32 27 Like the Attorney General, Congress recognized that suits brought against individual officers for injunctive relief are for all practical purposes suits against the State itself. The legislative history makes it clear that in such suits attorney's fee awards should generally be obtained "either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party)." S.Rep.No.94-1011, p. 5 (1976), U.S.Code Cong. & Admin.News 1976, p. 5913. Awards against the official in his individual capacity, in contrast, were not to be affected by the statute; in injunctive suits they would continue to be awarded only "under the traditional bad faith standard recognized by the Supreme Court in Alyeska." Id., at 5 n. 7, U.S.Code Cong. & Admin.News 1976, p. 5913. There is no indication in this case that the named defendants litigated in bad faith before the Court of Appeals. Consequently, the Department of Correction is the entity intended by Congress to bear the burden of the counsel-fees award. 28 The judgment of the Court of Appeals is accordingly affirmed. 29 It is so ordered. 30 Mr. Justice BRENNAN, concurring. 31 I join fully in the opinion of the Court and write separately only to answer points made by Mr. Justice POWELL. 32 I agree with the Court that there is no reason in this case to decide more than whether 42 U.S.C.A. § 1988 (Supp.1978), itself authorizes awards of attorney's fees against the States. Mr. Justice POWELL takes the view, however, that unless 42 U.S.C. § 1983 also authorizes damages awards against the States, the requirements of the Eleventh Amendment are not met. Citing Edelman v. Jordan, 415 U.S. 651, 94 ,S.Ct. 1347, 39 L.Ed.2d 662 (1974), he concludes that § 1983 does not authorize damages awards against the State and, accordingly, that § 1988 does not either. There are a number of difficulties with this syllogism, but the most striking is its reliance on Edelman v. Jordan, a case whose foundations would seem to have been seriously undermined by our later holdings in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), and Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). 33 It cannot be gainsaid that this Court in Edelman rejected the argument that 42 U.S.C. § 1983 "was intended to create a waiver of a State's Eleventh Amendment immunity merely because an action could be brought under that section against state officers, rather than against the State itself." 415 U.S., at 676-677, 94 S.Ct., at 1362. When Edelman was decided, we had affirmed monetary awards against the States only when they had consented to suit or had waived their Eleventh Amendment immunity. See, e. g., Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959); Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964); Employees v. Missouri Public Health & Welfare Dept., 411 U.S. 279, 93 S.C . 1614, 36 L.Ed.2d 251 (1973). In Edelman, we summarized the rule of our cases as follows: The "question of waiver or consent under the Eleventh Amendment was found in [our] cases to turn on whether Congress had intended to abrogate the immunity in question, and whether the State by its participation in [a regulated activity] authorized by Congress had in effect consented to the abrogation of [Eleventh Amendment] immunity." 415 U.S., at 672, 94 S.Ct., at 1360. At the very least, such consent could not be found unless Congress had authorized suits against "a class of defendants which literally includes States." Ibid. It was a short jump from that proposition, to the conclusion that § 1983—which was then thought to include only natural persons among those who could be party defendants, see Monroe v. Pape, 365 U.S. 167, 187-191, 81 S.Ct. 473, 484-486, 5 L.Ed.2d 492 (1961)—was not in the class of statutes that might lead to a waiver of Eleventh Amendment immunity. This is best summed up by Mr. Justice REHNQUIST, the author of Edelman, in his opinion for the Court in Fitzpatrick v. Bitzer, supra : 34 "We concluded that none of the statutes relied upon by plaintiffs in Edelman contained any authorization by Congress to join a State as defendant. The Civil Rights Act of 1871, 42 U.S.C. § 1983, had been held in Monroe v. Pape, 365 U.S. 167, 187-191, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), to exclude cities and other municipal corporations from its ambit; that being the case, it could not have been intended to include States as parties defendant." 427 U.S., at 452, 96 S.Ct., at 2669. 35 But time has not stood still. Two Terms ago, we decided Fitzpatrick v. Bitzer, which for the first time in the recent history of the Court asked us to decide "the question of the relationship between the Eleventh Amendment and the enforcement power granted to Congress under § 5 of the Fourteenth Amendment."1 Id., at 456, 96 S.Ct., at 2671. There we concluded that "the Eleventh Amendment, and the principle of state sovereignty which it embodies, . . . are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment." Ibid. (Citation omitted.) And we went on to hold: 36 "Congress may, in determining what is 'appropriate legislation' for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts." Ibid. 37 Then, in Monell v. New York City Dept. of Social Services, supra, decided only weeks ago, we held that the Congress which passed the Civil Rights Act of 1871, now § 1983—a statute enacted pursuant to § 5 of the Fourteenth Amendment, see 436 U.S., at 665, 98 S.Ct., at 2040-2041—did intend municipalities and other local government units to be included among those persons to whom § 1983 applies." Id., at 690, 98 S.Ct., at 2035. This holding alone would appear to be enough to vitiate the vitality of Fitzpatrick's explanation of Edelman.2 38 Moreover, central to the holding in Monell was the conclusion that the Act of Feb. 25, 1871, ch. 71, § 2, 16 Stat. 431, provided a definition of the word "person" used to describe the class of defendants in § 1983 suits. See 436 U.S., at 688, 98 S.Ct., at 2027. Although we did not in Monell have to consider whether § 1983 as properly construed makes States liable in damages for their constitutional violations, the conclusion seems inescapable that, t the very least, § 1983 includes among possible defendants "a class . . . which literally includes States." Edelman v. Jordan, 415 U.S., at 672, 94 S.Ct., at 1360. This follows immediately from the language of the Act of Feb. 25, 1871: 39 "[I]n all acts hereafter passed . . . the word 'person' may extend and be applied to bodies politic and corporate . . . unless the context shows that such words were intended to be used in a more limited sense . . . ." 40 The phrase "bodies politic and corporate" is now, and certainly would have been in 1871 a synonym for the word "State." See, e. g., United States v. Maurice, 26 F.Cas. 1211, 1216 (No. 15,747) (CC Va.1823) (Marshall, C. J.) ("The United States is a government and, consequently a body politic and corporate"). See also Pfizer, Inc. v. Government of India, 434 U.S. 308, 98 S.Ct. 584, 54 L.Ed.2d 563 (1978). 41 Given our holding in Monell, the essential premise of our Edelman holding—that no statute involved in Edelman authorized suit against "a class of defendants which literally includes States," 415 U.S., at 672, 94 S.Ct., at 1360—would clearly appear to be no longer true. Moreover, given Fitzpatrick's holding that Congress has plenary power to make States liable in damages when it acts pursuant to § 5 of the Fourteenth Amendment, it is surely at least an open question whether § 1983 properly construed does not make the States liable for relief of all kinds, notwithstanding the Eleventh Amendment. Whether this is in fact so, must of course await consideration in an appropriate case.3 42 Mr. Justice POWELL, with whom THE CHIEF JUSTICE joins, concurring in part and dissenting in part.* 43 While I join Parts I1 and II-A of the Court's opinion, I cannot subscribe to Part II-B's reading of the Eleventh Amendment as permitting counsel-fee awards against the State on the authority of a statute that concededly does not effect "an express statutory waiver of the States' immunity." Ante, at 698. 44 Edelman v. Jordan, 415 U.S. 651, 676-677, 94 S.Ct. 1347, 1362, 39 L.Ed.2d 662 (1974), rejected the argument that 42 U.S.C. § 1983 "was intended to create a waiver of the State's Eleventh Amendment immunity merely because an action could b brought under that section against state officers, rather than against the State itself." In a § 1983 action "a federal court's remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief, . . . and may not include a retroactive award which requires the payment of funds from the state treasury." 415 U.S., at 677, 94 S.Ct., at 1362 (citations omitted). There is no indication in the language of the Civil Rights Attorney's Fees Awards Act of 1976 (Act), Pub.L.No.94-559, 90 Stat. 2641, 42 U.S.C. § 1988 (1976 ed.), that Congress sought to overrule that holding.2 In this case, as in Edelman, "the threshold fact of congressional authorization to sue a class of defendants which literally includes States is wholly absent." 415 U.S., at 672, 94 S.Ct., at 1360 (emphasis supplied). Absent such authorization, grounded in statutory language sufficiently clear to alert every voting Member of Congress of the constitutional implications of particular legislation, we undermine the values of federalism served by the Eleventh Amendment by inferring from congressional silence an intent to "place new or even enormous fiscal burdens on the States." Employees v. Missouri Public Health & Welfare Dept., 411 U.S. 279, 284, 93 S.Ct. 1614, 1618, 36 L.Ed.2d 251 (1973). 45 The Court notes that the Committee Reports and the defeat of two proposed amendments indicate a purpose to authorize counsel-fee awards against the States. Ante, at 694. That evidence might provide persuasive support for a finding of "waiver" if this case involved "a congressional enactment which by its terms authorized suit by designated plaintiffs against a general class of defendants which literally included States or state instrumentalities." Edelman, supra, 415 U.S., at 672, 94 S.Ct., at 1360. Compare Fitzpatrick v. Bitzer, 427 U.S. 445, 452, 96 S.Ct. 2666, 2669, 49 L.Ed.2d 614 (1976), with Employees, supra, 411 U.S., at 283, 284-285, 93 S.Ct., at 1617, 1618.3 But in this sensitive area of conflicting interests of constitutional dimension, we should not permit items of legislative history to substitute for explicit statutory language. The Court should be "hesitant to presume general congressional awareness," SEC v. Sloan, 436 U.S. 103, 121, 98 S.Ct. 1702, 1713, 56 L.Ed.2d 148 (1978), of Eleventh Amendment consequences of a statute that does not make express provision for monetary recovery against the States.4 46 The Court maintains that the Act presents a special case because (i) it imposes attorney's fees as an element of costs that traditionally have been awarded without regard to the States' constitutional immunity from monetary liability, and (ii) Congress acted pursuant to its enforcement power under § 5 of the Fourteenth Amendment, as contrasted with its power under more general grants such as the Commerce Clause. I find neither ground a persuasive justification for dilution of the "clear statement" rule. 47 Notwithstanding the limitations of the Court's first ground of justification, see ante, at 697 n. 27, I am unwilling to ignore otherwise applicable principles simply because the statute in question imposes substantial monetary liability as an element of "costs." Counsel fees traditionally have not been part of the routine litigation expenses assessed against parties in American courts. Cf. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Arcambel v. Wiseman, 3 Dall. 306, 1 L.Ed. 613 (1796). Quite unlike those routine expenses, an award of counsel fees may involve substantial sums and is not a charge intimately related to the mechanics of the litigation. I therefore cannot accept the Court's assumption that counsel-fee awards are part of "the ordinary discipline of the courtroom." Ante, at 696 n. 24.5 48 Moreover, counsel-fee awards cannot be viewed as having the kind of "ancillary effect on the state treasury," Edelman, 415 U.S., at 668, 94 S.Ct., at 1358, that avoids the need for an explicit waiver of Eleventh Amendment protections. As with damages and restitutor relief, an award of counsel fees could impose a substantial burden on the State to make unbudgeted disbursements to satisfy an obligation stemming from past (as opposed to post-litigation) activities. It stretches the rationale of Edelman beyond recognition to characterize such awards as "the necessary result of compliance with decrees which by their terms [are] prospective in nature." Ibid. In the case of a purely prospective decree, budgeting can take account of the expenditures entailed in compliance, and the State retains some flexibility in implementing the decree, which may reduce the impact on the state fisc. In some situations fiscal considerations may induce the State to curtail the activity triggering the constitutional obligation. Here, in contrast, the State must satisfy a potentially substantial liability without the measure of flexibility that would be available with respect to prospective relief. 49 The Court's second ground for application of a diluted "clear statement" rule stems from language in Fitzpatrick recognizing that "[w]hen Congress acts pursuant to § 5" of the Fourteenth Amendment, "it is exercising [legislative] authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority," 427 U.S., at 456, 96 S.Ct., at 2671. I do not view this language as overruling, by implication, Edelman § holding that no waiver is present in § 19836—the quintessential Fourteenth Amendment measure—or disturbing the vitality of the "threshold [requirement] of congressional authorization to sue a class of defendants which literally includes States," 415 U.S., at 672, 94 S.Ct., at 1360.7 50 Because explicit authorization "to join a State as defendant," Fitzpatrick, 427 U.S., at 452, 96 S.Ct., at 2669, is absent here, and because every part of the Act can be given meaning without ascribing to Congress an intention to override the Eleventh Amendment immunity,8 I dissent from Part II-B of the Court's opinion. 51 Mr. Justice REHNQUIST, dissenting.* 52 The Court's affirmance of a District Court's injunction against a prison practice which has not been shown to violate the Constitution can only be considered an aberration in light of decisions as recently as last Term carefully defining the remedial discretion of the federal courts. Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977); Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II ). Nor are any of the several theories which the Court advances in support of its affirmance of the assessment of attorney's fees against the taxpayers of Arkansas sufficiently convincing to overcome the prohibition of the Eleventh Amendment. Accordingly, I dissent. 53 * No person of ordinary feeling could fail to be moved by the Court's recitation of the conditions formerly prevailing in the Arkansas prison system. Yet I fear that the Court has allowed itself to be moved beyond the well-established bounds limiting the exercise of remedial authority by the federal district courts. The purpose and extent of that discretion in another context were carefully defined by the Court's opinion last Term in Milliken II, supra, at 280-281, 97 S.Ct. at 2757. 54 "In the first place, like other equitable remedies, the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation. Swann v. Charlotte-Mecklenburg Board of Education, [supra] 402 U.S. [1], 16, 91 S.Ct. [1267], at 1276, 28 L.Ed.2d 554 [(1971)]. The remedy must therefore be related to 'the c ndition alleged to offend the Constitution . . . ." Milliken [v. Bradley], 418 U.S. [717,] 738, 94 S.Ct. [3112,] at 3124, 41 L.Ed.2d 1069 [(1974)]. Second, the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible 'to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.' Id., at 746, 94 S.Ct. [3112], at 3128. Third, the federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution." (Footnotes omitted.)1 55 The District Court's order limiting the maximum period of punitive isolation to 30 days in no way relates to any condition found offensive to the Constitution. It is, when stripped of descriptive verbiage, a prophylactic rule, doubtless well designed to assure a more humane prison system in Arkansas, but not complying with the limitations set forth in Milliken II, supra. Petitioners do not dispute the District Court's conclusion that the overcrowded conditions and the inadequate diet provided for those prisoners in punitive isolation offended the Constitution, but the District Court has ordered a cessation of those practices. The District Court found that the confinement of two prisoners in a single cell on a restricted diet for 30 days did not violate the Eighth Amendment. 410 F.Supp. 251, 278 (ED Ark.1976). While the Court today remarks that "the length of confinement cannot be ignored," ante, at 686, it does not find that confinement under the conditions described by the District Court becomes unconstitutional on the 31st day. It must seek other justifications for its affirmance of that portion of the District Court's order. 56 Certainly the provision is not remedial in the sense that it "restore[s] the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct." Milliken v. Bradley, 418 U.S. 717, 746, 94 S.Ct. 3112, 3128, 41 L.Ed.2d 1069 (1974) (Milliken I ). The sole effect of the provision is to grant future offenders against prison discipline greater benefits than the Constitution requires; it does nothing to remedy the plight of past victims of conditions which may well have been unconstitutional. A prison is unlike a school system, in which students in the later grades may receive special instruction to compensate for discrimination to which they were subjected in the earlier grades. Milliken II, supra, 433 U.S., at 281-283, 97 S.Ct., at 2757. Nor has it been shown that petitioners' conduct had any collateral effect upon private actions for which the District Court may seek to compensate so as to eliminate the continuing effect of past unconstitutional conduct. See Swann v. Charlotte-Mecklenburg Board of E ucation, 402 U.S. 1, 28, 91 S.Ct. 1267, 1282, 28 L.Ed.2d 554 (1971). Even where such remedial relief is justified, a district court may go no further than is necessary to eliminate the consequences of official unconstitutional conduct. Dayton, supra, 433 U.S., at 419-420, 97 S.Ct., at 2775; Pasadena Board of Education v. Spangler, 427 U.S. 424, 435-437, 96 S.Ct. 2697, 2704-2705, 49 L.Ed.2d 599 (1976); Swann, supra, 402 U.S. at 31-32, 91 S.Ct., at 1283-1284. 57 The Court's only asserted justification for its affirmance of the decree, despite its dissimilarity to remedial decrees in other contexts, is that it is "a mechanical—and therefore an easily enforced—method of minimizing overcrowding." Ante, at 688 n. 11. This conclusion fails adequately to take into account the third consideration cited in Milliken II : "the interests of state and local authorities in managing their own affairs, consistent with the Constitution." 433 U.S., at 281, 97 S.Ct., at 2757. The prohibition against extended punitive isolation, a practice which has not been shown to be inconsistent with the Constitution, can only be defended because of the difficulty of policing the District Court's explicit injunction against the overcrowding and inadequate diet which have been found to be violative of the Constitution. But even if such an expansion of remedial authority could be justified in a case where the defendants had been repeatedly contumacious, this is not such a case. The District Court's dissatisfaction with petitioners' performance under its earlier direction to "make a substantial start," Holt v. Sarver, 300 F.Supp. 825, 833 (ED Ark.1969), on alleviating unconstitutional conditions cannot support an inference that petitioners are prepared to defy the specific orders now laid down by the District Court and not challenged by the petitioners. A proper respect for "the interests of state and local authorities in managing their own affairs," Milliken II, 433 U.S., at 281, 97 S.Ct., at 2757, requires the opposite conclusion.2 58 The District Court's order enjoins a practice which has not been found inconsistent with the Constitution. The only ground for the injunction, therefore, is the prophylactic one of assuring that no unconstitutional conduct will occur in the future. In a unitary system of prison management there would be much to be said for such a rule, but neither this Court nor any other federal court is entrusted with such a management role under the Constitution. II 59 The Court advances separate theories to support the separate awards of attorney's fees in this case. First, the Court holds that the taxpayers of Arkansas may be held responsible for the bad faith of their officials in the litigation before the District Court. Second, it concludes that the award of fees in the Court of Appeals, where there was no bad faith, is authorized by the Civil Rights Attorneys' Fees Awards Act of 1976. Pub.L.No.94-559, 90 Stat. 2641, 42 U.S.C. § 1988 (1976 ed.). The first holding results in a totally unnecessary intrusion upon the State's conduct of its own affairs, and the second is not supportable under this Court's earlier decisions outlining congressional authority to abrogate the protections of the Eleventh Amendment. A. 60 Petitioners do not contest the District Court's finding that they acted in bad faith. For this reason, the Court has no occasion to address the nature of the showing necessary to support an award of attorney's fees for bad faith under Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-259, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975). The only issue before us is whether a proper finding of bad faith on the part of state officials will support an award of attorney's fees directly against the state treasury under the ancillary-effect doctrine of Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 (1974). 61 The ancillary-effect doctrine recognized in Edelman is a necessary concomitant of a federal court's authority to require state officials to conform their conduct to the dictates of the Constitution. "State officials, in order to shape their official conduct to the mandate of the Court's decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct." Id., at 668, 94 S.Ct., at 1358. The Court today suggests that a federal court may impose a retroactive financial penalty upon a State when it fails to comply with prospective relief previously and validly ordered. "If a state agency refuses to adhere to a court order, a financial penalty may be the most effective means of insuring compliance." Ante, at 691. This application of the ancillary-effect doctrine has never before been recognized by this Court, and there is no need to do so in this case, since it has not been shown that these petitioners have "refuse[d] to adhere to a court order." A State's jealous defense of its authority to operate its own correctional system cannot casually be equated with contempt of court.3 62 Even were I to agree with the Court that petitioners had willfully defied federal decrees, I could not conclude that the award of fees against the taxpayers of Arkansas would be justified, since there is a less intrusive means of insuring respondents' right to relief. It is sufficient to order an award of fees against those defendants, acting in their official capacity, who are personally responsible for the recalcitrance which the District Court wishes to penalize. There is no reason for the federal courts to engage in speculation as to whether the imposition of a fine against the State is "less intrusive" than "sending high state officials to jail." Ibid. So long as the rights of the plaintiffs and the authority of the District Court are amply vindicated by an award of fees, it should be a matter of no concern to the court whether those fees are paid by state officials personally or by the State itself. The Arkansas Legislature has already made statutory provision for deciding when its officials shall be reimbursed by the State for judgments ordered by the federal courts. 1977 Ark.Gen. Act No. 543. 63 The Court presents no persuasive reason for its conclusion that the decision of who must pay such fees may not safely be left to the State involved. It insists, ante, at 699 n. 32, that it is "manifestly unfair" to leave the individual state officers to pay the award of counsel fees rather than permitting their collection directly from the state treasury. But petitioners do not contest the District Court's finding that they acted in bad faith, and thus the Court's insistence that it is "unfair" to impose attorney's fees on them individually rings somewhat hollow.4 Even in a case where the equities were more strongly in favor of the individual sta e officials (as opposed to the State as an entity) than they are in this case, the possibility of individual liability in damages of a state official where the State itself could not be held liable is as old as Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and has been repeatedly reaffirmed by decisions of this Court. Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121 (1944); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Edelman v. Jordan, supra. Since the Court evidences no disagreement with this line of cases, its assertion of "unfairness" is not only doubtful in fact but also irrelevant as a matter of law. Likewise, the Court's fear that imposition of liability would inhibit state officials in the fearless exercise of their duties may be remedied, if deemed desirable, by legislation in each of the various States similar to that which Arkansas has already enacted. B 64 For the reasons stated in the dissenting portion of my Brother POWELL's opinion, which I join, I do not agree that the Civil Rights Attorneys' Fees Awards Act of 1976 can be considered a valid congressional abrogation of the State's Eleventh Amendment immunity. I have in addition serious reservations about the lack of any analysis accompanying the Court's transposition of the holding of Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), to this case. In Fitzpatrick, we held that under § 5 of the Fourteenth Amendment Congress could explicitly allow for recovery against state agencies without violating the Eleventh Amendment. But in Fitzpatrick, supra, there was conceded to be a violation of the Equal Protection Clause which is contained in haec verba in the language of the Fourteenth Amendment itself. In this case the claimed constitutional violation is the infliction of cruel and unusual punishment, which is expressly prohibited by the Eighth but not by the Fourteenth Amendment. While the Court has held that the Fourteenth Amendment "incorporates" the prohibition against cruel and unusual punishment, it is not at all clear to me that it follows that Congress has the same enforcement power under § 5 with respect to a constitutional provision which has merely been judicially "incorporated" into the Fourteenth Amendment that it has with respect to a provision which was placed in that Amendment by the drafters. 65 I would therefore reverse the judgment of the Court of Appeals in its entirety. * Mr Justice WHITE joins only Part I of this opinion. 1 Petitioners are the Commissioner of Correction and members of the Arkansas Board of Correction. 2 This case began as Holt v. Sarver, 300 F.Supp. 825 (ED Ark.1969) (Holt I ). The two earlier cases were Talley v. Stephens, 247 F.Supp. 683 (ED Ark.1965), and Jackson v. Bishop, 268 F.Supp. 804 (ED Ark.1967), vacated, 404 F.2d 571 (CA8 1968). Judge Henley decided the first of these cases in 1965, when he was Chief Judge of the Eastern District of Arkansas. Although appointed to the Court of Appeals for the Eighth Circuit in 1975, he was specially designated to continue to hear this case as a District Judge. 3 The administrators of Arkansas' prison system evidently tried to operate their prisons at a profit. See Talley v. Stephens, supra, 247 F.Supp., at 688. Cummins Farm, the institution at the center of this litigation, required its 1,000 inmates to work in the fields 10 hours a day, six days a week, using mule-drawn tools and tending crops by hand. 247 F.Supp., at 688. The inmates were sometimes required to run to and from the fields, with a guard in an automobile or on horseback driving them on. Holt v. Hutto, 363 F.Supp. 194, 213 (ED Ark.1973) (Holt III ). They worked in all sorts of weather, so long as the temperature was above freezing, sometimes in unsuitably light clothing or without shoes. Holt II, 309 F.Supp., at 370. The inmates slept together in large, 100-man barracks and some convicts, known as "creepers," would slip from their beds to crawl along the floor, stalking their sleeping enemies. In one 18-month period, there were 17 stabbings, all but 1 occurring in the barracks. Holt I, supra, 300 F.Supp., at 830-831. Homosexual rape was so common and uncontrolled that some potential victims dared not sleep; instead they would leave their beds and spend the night clinging to the bars nearest the guards' station. Holt II, supra, at 377. 4 Inmates were lashed with a wooden-handled leather strap five feet long and four inches wide. Talley v. Stephens, supra, 247 F.Supp., at 687. Although it was not official policy to do so, some inmates were apparently whipped for minor offenses until their skin was bloody and bruised. Jackson v. Bishop, supra, 268 F.Supp., at 810-811. 5 The "Tucker telephone," a hand-cranked device, was used to administer electrical shocks to various sensitive parts of an inmate's body. Jackson v. Bishop, supra, at 812. 6 Most of the guards were simply inmates who had been issued guns. Holt II, supra, 309 F.Supp., at 373. Although it had 1,000 prisoners, Cummins employed only eight guards who were not themselves convicts. Only two nonconvict guards kept watch over the 1,000 men at night. 309 F.Supp., at 373. While the "trusties" maintained an appearance of order, they took a high toll from the other prisoners. Inmates could obtain access to medical treatment only if they bribed the trusty in charge of sick call. As the District Court found, it was "within the power of a trusty guard to murder another inmate with practical impunity," because trusties with weapons were authorized to use deadly force against escapees. Id., at 374. "Accidental shootings" also occurred; and one trusty fired his shotgun into a crowded barracks because the inmates would not turn off their TV. Ibid. Another trusty beat an inmate so badly the victim required partial dentures. Talley v. Stephens, supra, 247 F.Supp., at 689. 7 A daily allowance of 2,700 calories is recommended for the average male between 23 and 50. National Academy of Sciences, Recommended Dietary Allowances, Appendix (8th rev. ed. 1974). Prisoners in punitive isolation are less active than the average person; but a mature man who spends 12 hours a day lying down and 12 hours a day simply sitting or standing consumes approximately 2,000 calories a day. Id., at 27. 8 The Department reads the following sentence in the District Court's 76-page opinion as an unqualified holding that any indeterminate sentence to solitary confinement is unconstitutional: "The court holds that the policy of sentencing inmates to indeterminate periods of confinement in punitive isolation is unreasonable and unconstitutional." 410 .Supp., at 278. But in the context of its full opinion, we think it quite clear that the court was describing the specific conditions found in the Arkansas penal system. Indeed, in the same paragraph it noted that "segregated confinement under maximum security conditions is one thing; segregated confinement under the punitive conditions that have been described is quite another thing." Ibid. (emphasis in original). The Department also suggests that the District Court made rehabilitation a constitutional requirement. The court did note its agreement with an expert witness who testified "that punitive isolation as it exists at Cummins today serves no rehabilitative purpose, and that it is counterproductive." Id., at 277. The court went on to say that punitive isolation "makes bad men worse. It must be changed." Ibid. We agree with the Department's contention that the Constitution does not require that every aspect of prison discipline serve a rehabilitative purpose. Novak v. Beto, 453 F.2d 661, 670-671 (CA5 1971); Nadeau v. Helgemoe, 561 F.2d 411, 415-416 (CA1 1977). But the District Court did not impose a new legal test. Its remarks form the transition from a detailed description of conditions in the isolation cells to a traditional legal analysis of those conditions. The quoted passage simply summarized the facts and presaged the legal conclusion to come. 9 As we explained in Milliken v. Bradley, 433 U.S. 267, 281, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745, state and local authorities have primary responsibility for curing constitutional violations. "If, however '[those] authorities fail in their affirmative obligations . . . judicial authority may be invoked.' Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.Ed.2d 554. Once invoked, 'the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.' " Ibid. In this case, the District Court was not remedying the present effects of a violation in the past. It was seeking to bring an ongoing violation to an immediate halt. Cooperation on the part of Department officials and compliance with other aspects of the decree may justify elimination of this added safeguard in the future, but it is entirely appropriate for the District Court to postpone any such determination until the Department's progress can be evaluated. 10 The District Court noted "that as a class the inmates of the punitive cells hate those in charge of them, and that they may harbor particular hatreds against prison employees who have been in charge of the same inmates for a substantial period of time." 410 F.Supp., at 277. 11 As early as 1969, the District Court had identified shorter sentences as a possible remedy for overcrowding in the isolation cells. Holt I, 300 F.Supp., at 834. The limit imposed in 1976 was a mechanical—and therefore an easily enforced—method of minimizing overcrowding, with its attendant vandalism and unsanitary conditions. 12 See, e. g., Holt II, 309 F.Supp., at 369: "The Court, however, is limited in its inquiry to the question of whether or not the constitutional rights of inmates are being invaded and with whether the Penitentiary itself is unconstitutional. The Court is not judicially concerned with questions which in the last analysis are addressed to legislative and administrative judgment. A practice that may be bad from the standpoint of penology may not necessarily be forbidden by the Constitution." 13 In affirming the award, the Court of Appeals relied chiefly on the Civil Rights Attorney's Fees Awards Act of 1976, but it also noted expressly that "the record fully supports the finding of the district court that the conduct of the state officials justified the award under the bad faith exception enumerated in Alyeska [Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141]." 548 F.2d 740, 742 n. 6. 14 An equity court has the unquestioned power to award attorney's fees against a party who shows bad faith by delaying or disrupting the litigation or by hampering enforcement of a court order. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-259, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141; Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648; Straub v. Vaisman & Co., Inc., 540 F.2d 591, 598-600 (CA3 1976); cf. Fed.Rule Civ.Proc. 56(g) (attorney's fees to be awarded against party filing summary judgment affidavits "in bad faith or solely for the purpose of delay"); Fed.Rule Civ.Proc. 37(a)(4) (motions to compel discovery; prevailing party may recover attorney's fees). The award vindicates judicial authority without resort to the more drastic sanctions available for contempt of court and makes the prevailing party whole for expenses caused by his opponent's obstinacy. Cf. First Nat. Bank v. Dunham, 471 F.2d 712 (CA8 1973). Of course, fees can also be awarded as part of a civil contempt penalty. See, e. g., Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 43 S.Ct. 458, 67 L.Ed. 719; Signal Delivery Service, Inc. v. Highway Truck Drivers, 68 F.R.D. 318 (ED Pa.1975). 15 "Ancillary" costs may be very large indeed. Last Term, for example, this Court rejected an Eleventh Amendment defense and approved an injunction ordering a State to pay almost $6 million to help defray the costs of desegregating the Detroit school system. Milliken v. Bradley, 433 U.S., at 293, 97 S.Ct., at 2763 (POWELL, J., concurring in judgment). 16 See Note, Attorneys' Fees and the Eleventh Amendment, 88 Harv.L.Rev. 1875, 1892 (1975). 17 That the award had a compensatory effect does not in any event distinguish it from a fine for civil contempt, which also compensates a private party for the consequences of a contemnor's disobedience. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797. Moreover, the Court has approved federal rulings requiring a State to support programs that compensate for past misdeeds, saying: "That the programs are also 'compensatory' in nature does not change the fact that they are part of a plan that operates prospectively to bring about the delayed benefits of a unitary school system. We therefore hold that such prospective relief is not barred by the Eleventh Amendment." Milliken v. Bradley, supra, 433 U.S., at 290, 97 S.Ct., at 2762 (emphasis in original). The award of attorney's fees against a State disregarding a federal order stands on the same footing; like other enforcement powers, it is integral to the court's grant of prospective relief. 18 The Attorney General has not argued that this award was so large or so unexpected that it interfered with the State's budgeting process. Although the Eleventh Amendment does not prohibit attorney's fees awards for bad faith, it may counsel moderation in determining the size of the award or in giving the State time to adjust its budget before paying the full amount of the fee. Cf. Edelman v. Jordan, 415 U.S. 651, 666 n. 11, 94 S.Ct. 1347, 1357, 39 L.Ed.2d 662. In this case, however, the timing of the award has not been put in issue; nor has the State claimed that the award was larger than necessary to enforce the court's prior orders. 19 We do not understand the Attorney General to urge that the fees should have been awarded against the officers personally; that would be a remarkable way to treat individuals who have relied on the Attorney General to represent their interests throughout this litigation. 20 In Milliken v. Bradley, supra, we affirmed an order requiring a state treasurer to pay a substantial sum to another litigant, even though the District Court's opinion explicitly recognized that "this remedial decree will be paid for by the taxpayers of the City of Detroit and the State of Michigan," App. to Pet. for Cert. in Milliken v. Bradley, O.T.1976, No. 76-447, pp. 116a-117a, and even though the Court of Appeals, in affirming, stated that "the District Court ordered that the State and Detroit Board each pay one-half the costs" or relief. Bradley v. Milliken, 540 F.2d 229, 245 (CA6 1976). B. The Court of Appeals Award 21 The Act declares: "In any action or proceeding to enforce a provision of §§ 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes [42 U.S.C. §§ 1981-1983, 1985, 1986], title IX of Public Law 92-318 [20 U.S.C. § 1681 et seq. (1976 ed.)], or in any civil action or proceeding, by or on behalf of the United States of America, to enforce, or charging a violation of, a provision of the United States Internal Revenue Code [26 U.S.C. § 1 et seq. (1976 ed.)], or title VI of the Civil Rights Act of 1964 [42 U.S.C. §§ 2000d et seq.], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 90 Stat. 2641. 22 See 122 Cong.Rec. 31832-31835 (1976) (amendment of Sen. Helms); id., at 32296 and 32396-32397 (amendment of Sen. Allen). See also id., at 32931 (amendment of Sen. William Scott). 23 The Attorney General also contends that the fee award should not apply to cases, such as this one, that were pending when the Act was passed in 1976. But the legislative history of the Act, as well as this Court's general practice, defeats this argument. The House Report declared: "In accordance with applicable decisions of the Supreme Court, the bill is intended to apply to all cases pending on the date of enactment . . .. " H.R.Rep.No.94-1558, p. 4 n. 6 (1976). See also Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476. 24 While the decisions allowing the award of costs against States antedate the line drawn between retroactive and prospective relief in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662, such awards do not seriously strain that distinction. Unlike ordinary "retroactive" relief such as damages or restitution, an award of costs does not compensate the plaintiff for the injury that first brought him into court. Instead, the award reimburses him for a portion of the expenses he incurred in seeking prospective relief. (An award of costs will almost invariably be incidental to an award of prospective relief, for costs are generally awarded only to prevailing parties, see Fed.Rule Civ.Proc. 54(d), and only prospective relief can be successfully pursued by an individual in a suit against a State.) Moreover, like the power to award attorney's fees for litigating in bad faith, the power to assess costs is an important and well-recognized tool used to restrain the behavior of parties during litigation. See, e. g., Rule 37(b) (costs may be awarded for failure to obey discovery order); Rule 30(g) (costs may be awarded for failure to attend deposition or for failure to serve subpoena). When a State defends a suit for prospective relief, it is not exempt from the ordinary discipline of the courtroom. 25 "If specific statutory authority [for an award of costs] is needed, it is found in § 254 of the Judicial Code . . .. It provides that there shall be 'taxed against the losing party in each and every cause pending in the Supreme Court' the cost of printing the record, except when the judgment is against the United States. This exception of the United States in the section with its emphatic inclusion of every other litigant shows that a state as litigant must pay the costs of printing, if it loses, in every case, civil or criminal. These costs constitute a large part of all the costs. The section certainly constitutes pro tanto statutory authority to impose costs generally against a state if defeated." 275 U.S., at 77, 48 S.Ct., at 100. 26 Because the interest in orderly and evenhanded justice is equally pressing in lower courts, Fairmont Creamery has been widely understood as foreclosing any Eleventh Amendment objection to assessing costs against a State in all federal courts. See, e. g., Skehan v. Board of Trustees, 538 F.2d 53, 58 (CA3 1976) (en banc); Utah v. United States, 304 F.2d 23 (CA10 1962); United States ex rel. Griffin v. McMann, 310 F.Supp. 72 (EDNY 1970). 27 This conclusion is consistent with the reasons for requiring a formal indication of Congress' intent to abrogate the States' Eleventh Amendment immunity. The requirement insures that Congress has not imposed "enormous fiscal burdens on the States" without careful thought. Employees v. Missouri Public Health & Welfare Dept., 411 U.S. 279, 284, 93 S.Ct. 1614, 1618, 36 L.Ed.2d 251. See Tribe, Intergovernmental Immunities in Litigation, Taxation and Regulation, 89 Harv.L.Rev. 682, 695 (1976). But an award of costs—limited as it is to partially compensating a successful litigant for the expense of his suit—could hardly create any such hardship for a State. Thus we do not suggest that our analysis would be the same if Congress were to expand the concept of costs beyond the traditional category of litigation expenses. 28 In 1975, we listed 29 statutes allowing federal courts to award attorney's fees in certain suits. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S., at 260-261, n. 33, 95 S.Ct., at 1623. Some of these statutes define attorney's fees as an element of costs, while others separate fees from other taxable costs. Compare 42 U.S.C. § 2000a-3(b) with 29 U.S.C. § 216(b) (1970 ed., Supp. V). 29 See 28 U.S.C. § 1923(a) ($100 in fees for admiralty appeals involving more than $5,000). Inflation has now made the awards merely nominal, but the principle of allowing such awards against all parties has undiminished force. 30 File of the Clerk of this Court in Fairmont Creamery Co. v. Minnesota, O.T. 1926, No. 725. 31 The Attorney General argues that the statute itself must expressly abr gate the States' immunity from retroactive liability, relying on Employees v. Missouri Public Health & Welfare Dept., supra. Even if we were not dealing with an item such as costs, this reliance would be misplaced. In Employees, the Court refused to permit individual backpay suits against state institutions because the Court "found not a word in the history of the [statute] to indicate a purpose of Congress to make it possible for a citizen of that State or another State to sue the State in the federal courts." 411 U.S., at 285, 93 S.Ct., at 1618. The Court was careful to add, moreover, that its reading of the law did not make the statute's inclusion of state institutions meaningless. Because the Secretary of Labor was empowered to bring suit against violators, the amendment covering state institutions gave him authority to enforce the statute against them. Id., at 285-286, 93 S.Ct., at 1618. The present Act, in contrast, has a history focusing directly on the question of state liability; Congress considered and firmly rejected the suggestion that States should be immune from fee awards. Moreover the Act is not part of an intricate regulatory scheme offering alternative methods of obtaining relief. If the Act does not impose liability for attorney's fees on the States, it has no meaning with respect to them. Finally, the claims asserted in Employees and in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662, were based on a statute rooted in Congress' Art. I power. See Employees, supra, at 281, 93 S.Ct., at 1616 (claim based on Fair Labor Standards Act, 29 U.S.C. § 201 et seq.); Edelman v. Jordan, supra, 415 U.S., at 674, 94 S.Ct., at 1361 (underlying claim based on Social Security Act provisions dealing with aid to aged, blind, and disabled, 42 U.S.C. §§ 1381-1385). In this case, as in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614, the claim is based on a statute enacted to enforce the Fourteenth Amendment. As we pointed out in Fitzpatrick : "[T]he Eleventh Amendment, and the principle of state sovereignty which it embodies . . . are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment. . . . When Congress acts pursuant to § 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority." Id., at 456, 96 S.Ct., at 2671. Cf. National League of Cities v. Usery, 426 U.S. 833, 852 n. 17, 96 S.Ct. 2465, 2474, 49 L.Ed.2d 245. Applying the standard appropriate in a case brought to enforce the Fourteenth Amendment, we have no doubt that the Act is clear enough to authorize the award of attorney's fees payable by the State. 32 The Attorney General is hardly in a position to argue that the fee awards should be borne not by the State, but by individual officers who have relied on his office to protect their interests throughout the litigation. Nonetheless, our dissenting Brethren would apparently force these officers to bear the award alone. The Act authorizes an attorney's fee award even though the appeal was not taken in bad faith; no o e denies that. The Court of Appeals' award is thus proper, and the only question is who will pay it. In the dissenters' view, the Eleventh Amendment protects the State from liability. But the State's immunity does not extend to the individual officers. The dissenters would apparently leave the officers to pay the award; whether the officials would be reimbursed is a decision that "may . . . safely be left to the State involved." Post, at 716 (REHNQUIST, J., dissenting). This is manifestly unfair when, as here, the individual officers have no personal interest in the conduct of the State's litigation, and it defies this Court's insistence in a related context that imposing personal liability in the absence of bad faith may cause state officers to "exercise their discretion with undue timidity." Wood v. Strickland, 420 U.S. 308, 321, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214. 1 As Fitzpatrick noted, this issue had been before the Court in Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880). 2 It can also be questioned whether, had Congress meant to exempt municipalities from liability under § 1983, it would necessarily follow that Congress also meant to exempt States. See Monell v. New York City Dept. of Social Services, 436 U.S. 658, 673-674, n. 30, 98 S.Ct. 2018, 2027, 56 L.Ed.2d 611 (1978). 3 As I understand Mr. Justice POWELL's objection to the Court's opinion, it rests squarely on the proposition that a clear statement to make States liable for damages cannot be found in legislative history but only on the face of a statute. See post, at 705-706. In § 1983 and the Act of Feb. 25, 1871, we have a statute that on its face applies to state defendants, but now Mr. Justice POWELL tells us that this is not enough because there is still an absence of "congressional purpose in 1871 to abrogate the protections of the Eleventh Amendment." Post, at 709 n. 6. I suppose that this means either that no statute can meet the Eleventh Amendment clear-statement test, or alternatively, that Mr. Justice POWELL has some undisclosed rule as to when legislative history may be taken into account that works only to defeat state liability. * Mr. Justice WHITE and Mr. Justice REHNQUIST join this opinion to the extent it dissents from the opinion and judgment of the Court. 1 The principles emphasized by Mr. Justice REHNQUIST, post, at 2584, as to the limitation of equitable remedies are settled. See Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977); Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977). On the extraordinary facts of this case, however, I agree with the Court that the 30-day limitation on punitive isolation was within the bounds of the District Court's discretion in fashioning appropriate relief. It also is evident from the Court's opinion, see ante, at 688, that this limitation will have only a minimal effect on prison administration, an area of responsibility primarily reserved to the States. 2 In Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Court held that "the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies." Id., at 690, 98 S.Ct., at 2035. We noted, however, that there was no "basis for concluding that the Eleventh Amendment is a bar to municipal liability," and that our holding was "limited to local government units which are not considered part of the State for Eleventh Amendment purposes." Id., at 690, and n. 54, 98 S.Ct., at 2035 (emphasis in original). 3 Although Fitzpatrick states that the "prerequisite" of "congressional authorization . . . to sue the State as employer" was found "wanting in Employees," 427 U.S., at 452, 96 S.Ct., at 2670, this reference is to the Court's conclusion in Employees that notwithstanding the literal inclusion of the States as statutory employers, in certain contexts, there was "not a word in the history of the [statute] to indicate a purpose of Congress to make it possible for a citizen of that State or another State to sue the State in the federal courts." 411 U.S., at 285, 93 S.Ct., at 1618. See Edelman, 415 U.S., at 672, 94 S.Ct., at 1360. While it has been suggested that "[t]he legislative changes that made state governments liable under Title VII closely paralleled the changes that made state governments liable under the Fair Labor Standards Act," Baker, Federalism and the Eleventh Amendment, 48 U.Colo.L.Rev. 139, 171 n. 152 (1977), comparing Fitzpatrick, 427 U.S., at 449 n. 2, 96 S.Ct., at 2668, with Employees, 411 U.S., at 282-283, 93 S.Ct., at 1616-1617, the statute considered in Fitzpatrick made explicit reference to the availability of a private action against state and local governments in the event the Equal Employment Opportunity Commission or the Attorney General failed to bring suit or effect a conciliation agreement. Equal Opportunity Employment Act of 1972, 86 Stat. 104, 42 U.S.C. § 2000e-5(f)(1) (1970 ed., Supp. V); see H.R.Rep.No.92-238, pp. 17-19 (1971); S.Rep.No.92-415, pp. 9-11 (1971); S.Conf.Rep.No.92-681, pp. 17-18 (1972); H.R.Conf.Rep.No.92-899, pp. 17-18 (1972), U.S.Code Cong. & Admin.News 1972, p. 2137. 4 "By making a law unenforceable against the states unless a contrary intent were apparent in the language of the statute, the clear statement rule . . . ensure[s] that attempts to limit state power [are] unmistakable, thereby structuring the legislative process to allow the centrifugal forces in Congress the greatest opportunity to protect the states' interests." Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regulation: Separation of Powers Issues in Controversies About Federalism, 89 Harv.L.Rev. 682, 695 (1976) (emphasis supplied). 5 The Court places undue reliance on Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, 48 S.Ct. 97, 72 L.Ed. 168 (1927), in support of its holding. That decision holds that no common-law bar of sovereign immunity prevents the imposition of costs against the State "when [it is] a party to litigation in this Court . . . ." Id., at 74, 48 S.Ct., at 100. In addition to the fact that the State was a party in the litigation, and that there is no discussion of counsel fees, Fairmont Creamery "did not mention the eleventh amendment. Furthermore, the Court had held long before that when an individual appeals a case initiated by a state to the Supreme Court, that appeal does not fall within the eleventh amendment's prohibition of suit 'commenced or prosecuted against' the states." Note, Attorneys' Fees and the Eleventh Amendment, 88 Harv.L.Rev. 1875, 1890 (1975). 6 Mr. Justice BRENNAN's concurring opinion asserts that the Court's holding in Edelman has been undermined, sub silentio, by Fitzpatrick and the re-examination of the legislative history of § 1983 undertaken in Monell. The language in question from Fitzpatrick was not essential to the Court's holding in that case. Moreover, this position ignores the fact that Edelman rests squarely on the Eleventh Amendment immunity, without adverting in terms to the treatment of the legislative history in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). And there is nothing in Monroe itself that supports the proposition that § 1983 was "thought to include only natural persons among those who could be party defendants . . . ." Ante, at 701. The Monroe Court held that because the 1871 Congress entertained doubts as to its "power . . . to impose civil liability on municipalities," the Court could not "believe that the word 'person' was used in this particular Act to include them." 365 U.S., at 190, 191, 81 S.Ct., at 486. As the decision in Monell itself illustrates, see n. 2, supra, the statutory issue of municipal liability is quite independent of the question of the State's constitutional immunity. Mr. Justice BRENNAN's opinion appears to dispense with the "clear statement" requirement altogether, a position that the Court does not embrace today. It relies on the reference to "bodies politic" in the "Dictionary Act," Act of Feb. 25, 1871, 16 Stat. 431, as adequate to override the States' constitutional immunity, even though there is no evidence of a congressional purpose in 1871 to abrogate the protections of the Eleventh Amendment. But the Court's rulings in Edelman and Employees are rendered obsolete if provisions like the "Dictionary Act" are all that is necessary to expose the States to monetary liability. After a century of § 1983 jurisprudence, in which States were not thought to be liable in damages, Edelman made clear that the 1871 measure does not override the Eleventh Amendment. I would give force to our prior Eleventh Amendment decisions by requiring explicit legislation on the point. 7 The Court suggests that the "dissenting Brethren would apparently force [the individual] of icers to bear the award alone." Ante, at 699 n. 32. It is not clear to me that this issue, not fairly embraced within the questions presented, is before us. Moreover there is no suggestion in the opinion below that the Court of Appeals intended that its award of fees for "services on this appeal" would be paid by the individual petitioners, in the event the Eleventh Amendment were found to bar an award against the Department of Correction. See 548 F.2d 740, 742-743 (1977). But even if the question properly were before this Court, there is nothing in the Act that requires the routine imposition of counsel-fee liability on anyone. As we noted in Monell, the Act "allows prevailing parties (in the discretion of the court ) in § 1983 suits to obtain attorney's fees from the losing parties . . . ." 436 U.S., at 698-699, 98 S.Ct., at 2040 (emphasis supplied). Congress deliberately rejected a mandatory statute, in favor of "a more moderate approach [which left] the matter to the discretion of the judge, guided of course by the case law interpreting similar attorney's fee provisions." H.R.Rep.No.94-1558, p. 8 (1976). Whether or not the standard of cases like Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), was rejected with respect to counsel-fee liability, see H.R.Rep. No. 94-1558, supra, at 9, and n. 17, neither the Act nor its legislative history prevents a court from taking into account the personal culpability of the individual officer where an award against the government entity would be barred by the Eleventh Amendment. 8 I do not understand the Court's observation that "[i]f the Act does not impose liability for attorney's fees on the States, it has no meaning with respect to them." Ante, at 698 n. 31. Significantly, the Court does not say that any part of the Act would be rendered meaningless without finding an Eleventh Amendment waiver. Cf. Employees, 411 U.S., at 285-286, 93 S.Ct., at 1618. * Mr. Justice WHITE joins Part II of this opinion. 1 The Court suggests, ante, at 687 n. 9, that its holding is consistent with Milliken II, because it "was not remedying the present effects of a violation in the past. It was seeking to bring an ongoing violation to an immediate halt." This suggestion is wide of the mark. Whether exercising its authority to "remed[y] the present effects of a violation in the past," or "seeking to bring an ongoing violation to an immediate halt," the court's remedial authority remains circumscribed by the language quoted in the text from Milliken, II. If anything, less ingenuity and discretion would appear to be required to "bring an ongoing violation to an immediate halt" than in "remedying the present effects of a violation in the past." The difficulty with the Court's position is that it quite properly refrains from characterizing solitary confinement for a period in excess of 30 days as a cruel and unusual punishment; but given this position, a "remedial" order that no such solitary confinement may take place is necessarily of a prophylactic nature, and not essential to "bring an ongoing violation to an immediate halt." 2 I reserve judgment on whether such a precautionary order would be justified where state officials have been shown to have violated previous remedial orders. I also note the similarity between this decree and the "no majority of any minority" requirement which was found impermissible in Pasadena Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), even though it too might have been defended on the theory that it was an easily enforceable mechanism for preventing future acts of official discrimination. 3 In any event, it is apparent that the District Court did not consider its order a form of retroactive discipline supporting its previous orders. The court concluded that the allowance of the fee "may incline the Department to act in such a manner that further protracted litigation about the prisons will not be necessary." 410 F.Supp. 251, 285 (ED Ark.1976). It does not appear to me that the court's desire to weaken petitioners' future resistance is a legitimate use of the Alyeska doctrine permitting the award of attorney's fees for past acts of bad faith. 4 It is true that fees may be awarded under 42 U.S.C. § 1988 (1976 ed.) even in the absence of bad faith. But that statute leaves the decision to award fees to the discretion of the district court, which may be expected to alleviate any possible unfairness.

56

437 U.S. 655 98 S.Ct. 2552 57 L.Ed.2d 504 Hubert L. WILL, Judge, United States District Court, Northern District of Illinois, Petitioner,v.CALVERT FIRE INSURANCE COMPANY et al. No. 77-693. Argued April 19, 1978. Decided June 23, 1978. Syllabus After Calvert Fire Insurance Co. (hereafter respondent) had advised American Mutual Reinsurance Co. (American) that respondent was rescinding its membership in a reinsurance pool that American operated, American sued respondent in an Illinois state court for a declaration that the pool agreement with respondent remained in effect. Six months later, respondent in its answer asserted the unenforceability of the pool agreement on the grounds that American had violated, inter alia, the Securities Act of 1933; Rule 10b-5, promulgated under the Securities Exchange Act of 1934 (hereafter 1934 Act); and the Illinois Securities Act, and counterclaimed for damages on all its defense claims except the one involving Rule 10b-5, which under the 1934 Act's terms was exclusively enforceable in the federal courts. Respondent on the same day filed a complaint against American in the Federal District Court for damages for American's alleged Rule 10b-5 violation, and joined therewith claims based on each of the other defensive counts made in the state-court action. American moved to dismiss or abate the federal-court action, the motion to dismiss being based on the contention that the reinsurance agreement was not a "security" within the meaning of the 1933 or 1934 Act, and the motion to abate being on the ground that the earlier state proceeding included all issues except the one involving Rule 10b-5. Petitioner, the District Court Judge, granted American's motion to defer the federal proceeding until completion of the state proceeding, except the Rule 10b-5 damages claim. He rejected respondent's contention that the District Court should proceed with the entire case because of its exclusive jurisdiction over that claim, and noted that the state court was bound to provide the equitable relief sought by respondent by recognizing a valid Rule 10b-5 claim as a defense to the state action. Petitioner heard argument on, but has not yet decided, the question of whether respondent's interest in the reinsurance pool constituted a "security" as defined in the 1934 Act. After petitioner had rejected motions to reconsider his stay order and refused to certify an interlocutory appeal, respondent petitioned the Court of Appeals for a writ of mandamus directing petitioner to adjudicate the Rule 10b-5 claim. Thereafter that court, relying on Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483, granted the petition and directed petitioner to "proceed immediately with Calvert's claim for damages and equitable relief" under the 1934 Act. Held: The judgment is reversed. Pp. 661-667; 667-668. 560 F.2d 792, reversed. Mr. Justice REHNQUIST, joined by Mr. Justice STEWART, Mr. Justice WHITE, and Mr. Justice STEVENS, concluded: 1 Issuance of the writ of mandamus by the Court of Appeals impermissibly interfered with petitioner's discretion to control his docket. Pp. 661-667. 2 (a) Though a court of appeals has the power to issue a writ of mandamus directing a district court to proceed to judgment in a pending case when it is the district court's duty to do so, the burden is on the moving party to show that its right to issuance of the writ is "clear and indisputable." P. 662. 3 (b) Where there is duplicative litigation in the state and federal courts, the deci ion whether or not to defer to the state courts is largely committed to the discretion of the district court, Brillhart v. Excess Ins. Co., 316 U.S. 491, 494, 62 S.Ct. 1173, 1175, 86 L.Ed. 1620, even when matters of federal law are involved, Colorado River, supra, at 820, 96 S.Ct. at 1247. Pp. 662-664. 4 (c) This case, unlike Colorado River, did not involve outright dismissal of the action, and respondent remained free to urge petitioner to reconsider his decision to defer based on new information as to the progress of the state case; to that extent deferral (contrary to respondent's argument) was not equivalent to dismissal. Pp. 664-665. 5 (d) Though a district court's exercise of discretion may be subject to review in a proper interlocutory appeal, it ought not be overridden by a writ of mandamus. Where a matter is committed to a district court's discretion, it cannot be said that a litigant's right to a particular result is "clear and indisputable." Here petitioner has not heedlessly refused to adjudicate the Rule 10b-5 damages claim (the only issue that may not concurrently be resolved by both the state and federal courts), and as far as the record shows his delay in adjudicating that claim is simply the product of a district court's normal excessive workload, compounded by "the unfortunate consequence of making the judge a litigant" in this mandamus proceeding. Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041. Pp. 665-667. 6 Mr. Justice BLACKMUN, who is of the view that Brillhart v. Excess Ins. Co., 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620, a diversity case, has no application to this federal-issue case, concluded that the issuance of mandamus in this case was premature. The judgment of the Court of Appeals must be reversed because the court should have done no more than require reconsideration by petitioner in light of Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483, which was decided after petitioner's stay order. Pp. .667-668 7 Milton V. Freeman, Washington, D. C., for petitioner. 8 Louis Loss, Cambridge, Mass., for respondents. 9 Mr. Justice REHNQUIST announced the judgment of the Court, and delivered an opinion in which Mr. Justice STEWART, Mr. Justice WHITE, and Mr. Justice STEVENS joined. 10 On August 15, 1977, the Court of Appeals for the Seventh Circuit granted a petition for writ of mandamus ordering petitioner, a judge of the United States District Court for the Northern District of Illinois, "to proceed immediately" to adjudicate a claim based upon the Securities Exchange Act of 1934 and brought by respondent, Calvert Fire Insurance Co., against American Mutual Reinsurance Co., despite the pendency of a substantially identical proceeding between the same parties in the Illinois state courts. 560 F.2d 792, 797. The Court of Appeals felt that our recent decision in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), compelled the issuance of the writ. We granted certiorari to consider the propriety of the use of mandamus to review a District Court's decision to defer to concurrent state proceedings, 434 U.S. 1008, 98 S.Ct. 716, 54 L.Ed.2d 750, and we now reverse. 11 * Respondent Calvert writes property and casualty insurance. American Mutual operates a reinsurance pool whereby a number of primary insurers protect themselves against unanticipated losses. Membership in the pool requires both the payment of premiums by pool members and indemnification of the pool in the event that losses exceed those upon which the premiums are calculated. Calvert joined the pool in early 1974, but in April of that year notified American Mutual of its election to rescind the agreement by which it became a member. 12 In July 1974, American Mutual sued in the Circuit Court of Cook County, Ill., to obtain a declaration that the pool agreement between it and Calvert was in full force and effect. Six months later, Calvert in its answer to that suit asserted that the pool agreement was not enforceable against it because of violations by American Mutual of the Securities Act of 1933, the Securities Exchange Act of 1934, the Illinois Securities Act, the Maryland Securities Law, and the state common law of fraud. With its answer Calvert filed a counterclaim seeking $2 million in damages from American Mutual on all of the grounds that it set up in defense except for the defense based on the Securities Exchange Act of 1934. Since § 27 of that Act, 48 Stat. 902, as amended, 15 U.S.C. § 78aa (1976 ed.), granted the district courts of the United States exclusive jurisdiction to enforce the Act, Calvert on the same day filed a complaint in the United States District Court for the Northern District of Illinois seeking damages from American Mutual for an alleged violation of Rule 10b-5, 17 CFR § 240.10b-5 (1977), issued under § 10(b) of the Act, 15 U.S.C. § 78j(b) (1976 ed.). Joined with this Rule 10b-5 count were claims based on each of the other grounds asserted by it in defense to American Mutual's state-court action. 13 In February 1975, more than seven months after it had begun its state-court action, but less than one month after Calvert had filed its answer and counterclaim in that action and its complaint in the federal court, American Mutual moved to dismiss or abate the latter. The claim for dismissal was based on the substantive assertion that the reinsurance agreement was not a "security" within the meaning of the 1933 or 1934 Act. The motion to abate was based on the fact that the state proceedings commenced six months before the federal proceedings included every claim and defense except the claim for damages based on Rule 10b-5 under the 1934 Act. 14 In May 1975, Judge Will substantially granted American Mutual's motion to defer the federal proceeding until the completion of the state proceedings, observing that a tentative trial date had already been set by the state court. Federal litigation of the same issues would therefore be duplicative and wasteful. He rejected Calvert's contention that the court should proceed with the entire case because of its exclusive jurisdiction under the 1934 Act, noting that the state court was bound to provide the equitable relief sought by Calvert by recognizing a valid Rule 10b-5 claim as a defense to the state action.1 Only Calvert's claim for damages under Rule 10b-5 was subject to the exclusive jurisdiction of the federal court. Petitioner therefore stayed all aspects of Calvert's federal action subject to the concurrent jurisdiction of both courts, recognizing "only Calvert's very limited claim for monetary damages under the 1934 Securities Act as a viable claim in this court." App. to Pet. for Cert. B-9. On May 9, 1975, Judge Will heard oral argument on the basic question of whether Calvert's interest in the reinsurance pool is a security within the meaning of the 1934 Act. He has not yet rendered a decision on that issue.2 15 Judge Will rejected two motions to reconsider his stay order and refused to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). On May 26, 1976, Calvert petitioned the Court of Appeals for the Seventh Circuit for a writ of mandamus directing Judge Will to proceed to adjudicate its Rule 10b-5 claims.3 Nearly 14 months later, on August 15, 1977, the Court of Appeals granted the petition and directed Judge Will to "proceed immediately with Calvert's claim for damages and equitable relief under the Securities Exchange Act of 1934." 560 F.2d, at 797.4 16 We granted certiorari to consider Judge Will's contention that the issuance of the writ of mandamus impermissibly interfered with the discretion of a district court to control its own docket. 434 U.S. 1008, 98 S.Ct. 716, 54 L.Ed.2d 750 (1978). II 17 The correct disposition of this case hinges in large part on the appropriate standard of inquiry to be employed by a court of appeals in determining whether to issue a writ of mandamus to a district court. On direct appeal, a court of appeals has broad authority to "modify, vacate, set aside or reverse" an order of a district court, and it may direct such further action on remand "as may be just under the circumstances." 28 U.S.C. § 2106. By contrast, under the All Writs Act, 28 U.S.C. § 1651(a), courts of appeals may issue a writ of mandamus only when "necessary or appropriate in aid of their respective jurisdictions." Whereas a simple showing of error may suffice to obtain a reversal on direct appeal, to issue a writ of mandamus under such circumstances "would undermine the settled limitations upon the power of an appellate court to review interlocutory orders." Will v. United States, 389 U.S. 90, 98 n. 6, 88 S.Ct. 269, 275, 19 L.Ed.2d 305 (1967). 18 As we have repeatedly reaffirmed in cases such as Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976), and Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382, 74 S.Ct. 145, 147, 98 L.Ed. 106 (1953) the "traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). Calvert makes no contention that petitioner has exceeded the bounds of his jurisdiction. Rather, it contends that the District Court, in entering the stay order, has refused "to exercise its authority when it is its duty to do so." Ibid. There can be no doubt that, where a district court persistently and without reason refuses to adjudicate a case properly before it, the court of appeals may issue the writ "in order that [it] may exercise the jurisdiction of review given by law." Insurance Co. v. Comstock, 16 Wall. 258, 270, 21 L.Ed. 493 (1873). "Otherwise the appellate jurisdiction could be defeated and the purpose of the statute authorizing the writ thwarted by unauthorized action of the district court obstructing the appeal." Roche, supra, 319 U.S. at 25, 63 S.Ct., at 941.5 19 To say that a court of appeals has the power to direct a district court to proceed to judgment in a pending case "when it is its duty to do so," 319 U.S., at 26, 63 S.Ct., at 941, states the standard but does not decide this or any other particular case. It is essential that the moving party satisfy "the burden of showing that its right to issuance of the writ is 'clear and indisputable.' " Bankers Life & Cas. Co., supra, 346 U.S., at 384, 74 S.Ct., at 148, quoting United States v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286, 287, 43 L.Ed. 559 (1899). Judge Will urges that Calvert does not have a "clear and indisputable" right to the adjudication of its claims in the District Court without regard to the concurrent state proceedings. To that issue we now must turn. III 20 It is well established that "the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction." McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 505, 54 L.Ed. 762 (1910). It is equally well settled that a district court is "under no compulsion to exercise that jurisdiction," Brillhart v. Excess Ins. Co., 316 U.S. 491, 494, 62 S.Ct. 1173, 1175, 86 L.Ed. 1620 (1942), where the controversy may be settled more expeditiously in the state court. Although most of our decisions discussing the propriety of stays or dismissals of duplicative actions have concerned conflicts of jurisdiction between two federal districts courts, e. g., Kerotest Mfg. Co., v. C-O-Two Fire Equipment Co., 342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200 (1952); Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153 (1936), we have recognized the relevance of those cases in the analogous circumstances presented here. See Colorado River, 424 U.S., at 817-819, 96 S.Ct., at 1246-1247. In both situations, the decision is largely committed to the "carefully considered judgment," id., at 818, 96 S.Ct., at 1246 of the district court. 21 This power has not always been so clear. In McClellan, on facts similar to those presented here, this Court indicated that the writ might properly issue where the District Court had stayed its proceedings in deference to concurrent state proceedings.6 Such an automatic exercise of authority may well have been appropriate in a day when Congress had authorized fewer claims for relief in the federal courts, so that duplicative litigation and the concomitant tension between state and federal courts could rarely result. However, as the overlap between state claims and federal claims increased, this Court soon recognized that situations would often arise when it would be appropriate to defer to the state courts. 22 "Ordinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties. Gratuitous interference with the orderly and comprehensive disposition of a state court litigation should be avoided." Brillhart, supra, 316 U.S., at 495, 62 S.Ct., at 1175. 23 The decision in such circumstances is largely committed to the discretion of the district court. 316 U.S., at 494, 62 S.Ct., at 1175. Furthermore, Colorado River, supra, 424 U.S. at 820, 96 S.Ct. at 1247, established that such deference may be equally appropriate even when matters of substantive federal law are involved in the case. 24 It is true that Colorado River emphasized "the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them." 424 U.S., at 817, 96 S.Ct., at 1246. That language underscores our conviction that a district court should exercise its discretion with this factor in mind, but it in no way undermines the conclusion of Brillhart that the decision whether to defer to the concurrent jurisdiction of a state court is, in the last analysis, a matter committed to the district court's discretion. Seizing upon the phrase "unflagging obligation" in an opinion which upheld the correctness of a district court's final decision to dismiss because of concurrent jurisdiction does little to bolster a claim for the extraordinary writ of mandamus in a case such as this where the District Court has rendered no final decision. 25 We think it of considerably more importance than did the Court of Appeals that Colorado River came before the Court of Appeals on appeal pursuant to 28 U.S.C. § 1291 following outright dismissal of the action by the District Court, rather than through an effort on the part of the federal-court plaintiff to seek mandamus. Calvert contends here, and the Court of Appeals for the Seventh Circuit agreed, that Judge Will's order deferring the federal proceedings was "equivalent to a dismissal." 560 F.2d, at 796. We are loath to rest our analysis on this ubiquitous phrase, for if used carelessly or without a precise definition it may impede rather than assist sound resolution of the underlying legal issue. 26 Obviously, if Judge Will had dismissed Calvert's action Calvert could have appealed the order of dismissal to the Court of Appeals, which could have required such action of Judge Will "as may be just under the circumstances." 28 U.S.C. § 2106. Since he did not dismiss the action, Calvert remained free to urge reconsideration of his decision to defer based on new information as to the progress of the state case; to this extent, at least, deferral was not "equivalent to a dismissal." 27 There are sound reasons for our reiteration of the rule that a district court's decision to defer proceedings because of concurrent state litigation is generally committed to the discretion of that court. No one can seriously contend that a busy federal trial judge, confronted both with competing demands on his time for matters properly within his jurisdiction and with inevitable scheduling difficulties because of the unavailability of lawyers, parties, and witnesses, is not entrusted with a wide latitude in setting his own calendar. Had Judge Will simply decided on his own initiative to defer setting this case for trial until the state proceedings were completed, his action would have been the "equivalent" of granting the motion of American Mutual to defer, yet such action would at best have afforded Calvert a highly dubious claim for mandamus. We think the fact that the judge accomplished this same result by ruling favorably on a party's motion to defer does not change the underlying legal question. 28 Although the District Court's exercise of its d scretion may be subject to review and modification in a proper interlocutory appeal, cf.Landis, 299 U.S., at 256-259, 57 S.Ct., at 166-168, we are convinced that it ought not to be overridden by a writ of mandamus.7 Where a matter is committed to the discretion of a district court, it cannot be said that a litigant's right to a particular result is "clear and indisputable."8 29 Calvert contends that a district court is without power to stay proceedings, in deference to a contemporaneous state action, where the federal courts have exclusive jurisdiction over the issue presented. Whether or not this is so, petitioner has not purported to stay consideration of Calvert's claim for damages under the Securities Exchange Act of 1934, which is the only issue which may not be concurrently resolved by both courts.9 It is true that petitioner has not yet ruled upon this claim. Where a district court obstinately refuses to adjudicate a matter properly before it, a court of appeals may issue the writ to correct "unauthorized action of the district court obstructing the appeal." Roche, 319 U.S., at 25, 63 S.Ct., at 941, citing Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283 (1932). Calvert, however, has neither alleged nor proved such a heedless refusal to proceed as a basis for the issuance of the writ here. Its petition offers only the bare allegation that Judge Will "in effect" abated the damages claim in deference to the state proceedings. App. 12. Judge Will has never issued such an order, and the sparse record before us will not support any such inference. So far as appears, the delay in adjudicating the damages claim is simply a product of the normal excessive load of business in the District Court, compounded by "the unfortunate consequence of making the judge a litigant" in this mandamus proceeding. Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041 (1947). 30 The judgment of the Court of Appeals is therefore 31 Reversed. 32 Mr. Justice BLACKMUN, concurring in the judgment. 33 The plurality's opinion, ante, at 662-663, appears to me to indicate that it now regards as fully compatible the Court's decisions in Brillhart v. Excess Ins. Co., 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942), a diversity case, and Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), a federal-issue case. I am not at all sure that this is so. I—as were Mr. Justice STEWART and Mr. Justice STEVENS—was in dissent in Colorado River, and if the holding in that case is what I think it is, and if one assumes, as I do not, that Brillhart has any application here, the Court cut back on Mr. Justice Frankfurter's rather sweeping language in Brillhart, 316 U.S., at 494-495, 62 S.Ct., at 1175-1176*. 34 Because Judge Will's stay order was issued prior to this Court's decision in Colorado River, and he therefore did not have such guidance as that case affords in the area, I join in the Court's reversal of the Court of Appeals' issuance of a writ of mandamus. The issuance was premature. The Court of Appeals should have done no more than require reconsideration of the case by Judge Will in light of Colorado River. 35 Mr. Chief Justice BURGER, dissenting. 36 I am in general agreement with Mr. Justice BRENNAN'S dissenting opinion. I write separately only to emphasize that I consider it unnecessary to determine in the context of this case whether it would ever be appropriate to give res judicata effect to a state-court judgment implicating a claim over which the federal court's have been given exclusive jurisdiction. Our concern here is simply with the propriety of a federal court delaying adjudication of such a claim in deference to a state-court proceeding. As Mr. Justice BRENNAN correctly notes, whatever the proper resolution of the res judicata issue, a federal court remains under an obligation to expeditiously consider and resolve those claims which Congress explicitly reserved to the federal courts. With this minor caveat, I join Mr. Justice BRENNAN in his dissent. 37 Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE, Mr. Justice MARSHALL, and Mr. Justice POWELL join, dissenting. 38 This case falls within none of the three general abstention categories, and the opinion of my Brother REHNQUIST therefore strains to bring it within the principles that govern in a very narrow class of "exceptional" situations that involve "the contemporaneous exercise of concurrent jurisdictions." Colorado River Water Conservation ist. v. United States, 424 U.S. 800, 813-818, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). In so straining, the opinion reaches a result supported by neither policy nor precedent, ignores difficult legal issues, misapprehends the significance of the proceedings below, and casts doubt upon a decision that has stood unquestioned for nearly 70 years. Moreover, there lurks an ominous potential for the abdication of federal-court jurisdiction in the opinion's disturbing indifference to "the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them," id., at 817, 96 S.Ct., at 1246—for obedience to that obligation becomes all the more important when, as here, Congress has made that jurisdiction exclusive. I dissent. 39 * Because this case came to the Court of Appeals on respondent Clavert Fire insurance Co.'s motion for a writ of mandamus to compel Judge Will to adjudicate its claims for damages and equitable relief under the Securities Exchange Act of 1934 (1934 Act), I agree with my Brother REHNQUIST that it is essential to determine precisely what obligation the District Court had to adjudicate respondent's 1934 Act claims. That however, is as far as my agreement goes. 40 On the same day Calvert filed its answer to the state suit instituted against it—an answer containing a defense under the 1934 Act that the state court was required to recognize under the Supremacy Clause—it commenced an action in Federal District Court seeking relief under the 1934 Act, the Securities Act of 1933, and various state provisions. The District Court stayed all claims alleged in this complaint, other than Calvert's claim for money damages under Rule 10b-5 of the 1934 Act, pending the outcome of the state suit. Although the District Court did not formally stay the Rule 10b-5 damages claim and heard oral argument on the primary issue underlying the claim—whether a participatory interest in a reinsurance pool is a "security"—the District Court has yet to rule on this issue, so Calvert's Rule 10b-5 damages claim, like the rest of its federal suit, remains in suspension. 41 Section 27 of the 1934 Act, 15 U.S.C. § 78aa (1976 ed.), gives the federal courts exclusive jurisdiction over claims arising under the Act. This jurisdictional grant evinces a legislative desire for the uniform determination of such claims by tribunals expert in the administration of federal laws and sensitive to the national concerns underlying them. When Congress thus mandates that only federal courts shall exercise jurisdiction to adjudicate specified claims, the "well established" principle1 accepted by my Brother REHNQUIST ante, at 662 of McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 505, 54 L.Ed. 762 (1910), that "the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction," governs a multo fortiori. Yet, relying on the completely inapposite case of Brillhart v. Excess Insurance Co., 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942), the opinion of my Brother REHNQUIST disregards the McClellan principle and all but ignores the analysis set forth in Colorado River Water Conservation Dist. v. United States, supra, our most recent pronouncement on a district court's authority to defer to a contemporaneous state proceeding. 42 In Brillhart, the District Court dismissed a diversity suit for a declaratory judgment because of the pendency in state court of a suit between the same parties and involving the same subject matter. The Court of Appeals reversed, holding that the dismissal was an abuse of discretion. In reversing the Court of Appeals, this Court reasoned: 43 "Although the District Court had jurisdiction of t e suit under the Federal Declaratory Judgments Act, it was under no compulsion to exercise that jurisdiction. The petitioner's motion to dismiss the bill was addressed to the discretion of the court. Aetna Casualty Co. v. Quarles, 4 Cir., 92 F.2d 321; Maryland Casualty Co. v. Consumers Finance Service, 3 Cir., 101 F.2d 514; American Automobile Ins. Co. v. Freundt, 7 Cir., 103 F.2d 613 . . . . The motion rested upon the claim that, since another proceeding was pending in a state court in which all the matters in controversy between the parties could be fully adjudicated, a declaratory judgment in the federal court was unwarranted. The correctness of this claim was certainly relevant in determining whether the District Court should assume jurisdiction and proceed to determine the rights of the parties. Ordinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties." Brillhart v. Excess Insurance Co., supra, 316 U.S., at 494-495, 62 S.Ct., at 1175-1176 (emphasis added). 44 As is readily apparent, crucial to this Court's approval of the District Court's dismissal of the suit in Brillhart were two factors absent here. First, because the federal suit was founded on diversity, state rather than federal law would govern the outcome of the federal suit. Second, and more significantly, the federal suit was for a declaratory judgment. Under the terms of the provision empowering federal courts to entertain declaratory judgment suits, 28 U.S.C. § 2201, the assumption of jurisdiction over such suits is discretionary. That section provides: "In a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration . . . ." (Emphasis added.) It was primarily because federal jurisdiction over declaratory judgment suits is discretionary that Brillhart found the District Court's deference to state-court proceedings permissible. This is clear from the lower court cases approvingly cited by Brillhart—American Automobile Insurance Co. v. Freundt, 103 F.2d 613 (CA7 1939); Maryland Casualty Co. v. Consumers Finance Service, 101 F.2d 514 (CA3 1938); and Aetna Casualty Co. v. Quarles, 92 F.2d 321 (CA4 1937)—all of which emphasized that a district court's discretion to dismiss a federal declaratory judgment suit in favor of a pending state suit is a product of the permissive nature of declaratory judgment jurisdiction.2 Obviously neither the logic nor the holding of Brillhart is pertinent where, as here, federal jurisdiction is not only nondiscretionary, but exclusive. 45 The unpersuasive grope for supporting precedent in which the opinion of my Brother REHNQUIST engages is especially lamentable in light of our decision only two Terms ago in Colorado River Wate Conservation Dist. v. United States. In Colorado River we addressed the precise issue presented here: the circumstances in which it is appropriate for a federal district court to stay a proceeding before it in deference to a parallel state-court proceeding in situations falling within none of the traditional categories for federal abstention. We explained that, in contrast to situations in which jurisdiction is concurrent in two or more federal courts, where the action paralleling a federal suit is in a state court, the federal court's power to dismiss the suit before it in deference to the parallel proceeding is limited by the "virtually unflagging obligation of the federal courts to exercise the jurisdiction given them." 424 U.S., at 817, 96 S.Ct., at 1246. Because a federal district court's power is so limited, the circumstances that justify federal-court inaction in deference to a state proceeding must be "exceptional." Id., at 818, 96 S.Ct., at 1246. Just how "exceptional" such circumstances must be was made clear by our admonition that "the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention." Ibid. Since we had previously noted that " '[a]bdication of the obligation to decide cases can be justified under [the abstention] doctrine only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest,' " id., at 813, 96 S.Ct., at 1244, quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-189, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959), the circumstances warranting dismissal "for reasons of wise judicial administration" must be rare indeed. 46 Such rare circumstances were present in Colorado River. There, the decisive factor in favor of staying the concurrent federal proceedings was "[t]he clear federal policy," evinced by the McCarran Amendment, of "avoid[ing the] piecemeal adjudication of water rights in a river system . . . a policy that recognizes the availability of comprehensive state systems for adjudication of water rights as the means for achieving [this] goa[l]." 424 U.S., at 819, 96 S.Ct., at 1247. No comparable federal policy favoring unitary state adjudication exists here. In fact, as evinced by the exclusive jurisdiction of the federal courts to determine 1934 Act claims, the relevant federal policy here is the precise opposite of that found to require deference to the concurrent state proceeding in Colorado River. 47 Ignoring wholesale the analytical framework set forth in Colorado River, whose vitality is not questioned, the opinion of my Brother REHNQUIST seemingly focuses on one of the four secondary factors found to support the federal dismissal in that case—the fact that the state proceedings were initiated before the federal suit—and finds that factor sufficient to insulate the District Court's actions here from mandamus review. Even putting aside the opinion's case-reading errors—its flouting of McClellan, its misreliance on Brillhart, and its misapplication of Colorado River —and analyzing this case on the opinion's own erroneous terms, the conclusion is still compelled that the District Court had no authority to stay Calvert's 1934 Act claims. Quite conveniently, the opinion of my Brother REHNQUIST avoids any discussion of the possible res judicata or collateral-estoppel effects the state court's determination of Calvert's 1934 Act defense would have on Calvert's 1934 Act claims for affirmative relief in federal court.3 To be sure, the preclusive effect of a state court determination of a claim within the exclusive jurisdiction of the federal courts is an unresolved and difficult issue. See generally Note, Res Judicata: Exclusive Federal Jurisdiction and the Effect of Prior State-Court Determinations, 53 Va.L.Rev. 1360 (1967). For myself, I confess to serious doubt that it is ever appropriate to accord res judicata effect to a state-court determination of a claim over which the federal courts have exclusive jurisdiction; for surely state-court determinations should not disable federal courts from ruling de novo on purely legal questions surrounding such federal claims. See Cotler v. Inter- County Orthopaedic Assn., 526 F.2d 537 (CA3 1975); McGough v. First Arlington National Bank, 519 F.2d 552 (CA7 1975); Clark v. Watchie, 513 F.2d 994 (CA9 1975). As recognized by Judge Learned Hand in Lyons v. Westinghouse Electric Co., 222 F.2d 184, 189 (CA2 1955), "the grant to the district courts of exclusive jurisdiction over the action . . . should be taken to imply an immunity of their decisions from any prejudgment elsewhere." I recognize that it may make sense, for reasons of fairness and judicial economy, to give collateral-estoppel effect to specific findings of historical facts by a state court's adjudicating an exclusively federal claim raised as a defense, see Granader v. Public Bank, 417 F.2d 75 (CA6 1969), but there are reasons why even such a limited preclusive effect should not be given state-court determinations. It is at least arguable that, in creating and defining a particular federal claim, Congress assumed that the claim would be litigated only in the context of federal-court procedure—a fair assumption when the claim is within exclusive federal jurisdiction. For example, Congress may have thought the liberal federal discovery procedures crucial to the proper determination of the factual disputes underlying the federal claim. 48 All this is not to say that I disagree with the refusal of the opinion of my Brother REHNQUIST to decide what preclusive effects the state court's determination of Calvert's Rule 10b-5 defense would have in Calvert's federal action, so much as it is to expose the opinion's error in failing even to consider the res judicata/collateral estoppel problem in evaluating the District Court's obligation to adjudicate Calvert's Rule 10b-5 claim. In my view, regardless of whether the state-court judgment would be given res judicata or collateral-estoppel effect, it was incumbent upon the District Court—at least in the absence of other overriding reasons—expeditiously to adjudicate at least Calvert's 1934 Act claims. If res judicata effect is accorded the prior state-court judgment, the exclusive jurisdiction given the federal courts over 1934 Act claims would be effectively thwarted, and the policy of uniform and effective federal administration and interpretation of the 1934 Act frustrated. A stay having so undesirable a consequence could possibly be justified only by compelling circumstances absent here. On the other hand, if the state-court adjudication is not given res judicata or collateral-estoppel effect, the 1934 Act claims will have to be adjudicated in federal court in any event, and there would be no reason for staying the federal action since nothing that transpires in the state proceedings would affect the adjudication of the federal claims. Thus, regardless of the proper disposition of the res judicata/collateral estoppel question, it is clear that a district court should not stay claims over which the federal courts have exclusive jurisdiction. See Cotler v. Inter-County Orthopaedic Assn., supra; Lecor, Inc. v. United States District Court, 502 F.2d 104 (CA9 1974). II 49 Whether evaluated under the "clear abuse of dis retion" standard set forth in La Buy v. Howes Leather Co., 352 U.S. 249, 257, 77 S.Ct. 309, 314, 1 L.Ed.2d 290 (1957), or under the prong of Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967), and Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943) that permits the use of mandamus "to compel [an inferior court] to exercise its authority when it is its duty to do so," the issuance of the writ of mandamus by the Court of Appeals was proper; there is simply a complete dearth of "exceptional" circumstances countervailing the District Court's "unflagging obligation" to exercise its exclusive jurisdiction. The opinion of my Brother REHNQUIST asserts, however, that the District Court "has not purported to stay consideration of Calvert's claim for damages under the Securities Exchange Act of 1934," but rather has simply "not yet ruled upon this claim." Ante, at 666. While technically accurate, this characterization of the status of the proceedings below utterly ignores two important facts that shed more than a little illumination on the true procedural posture of this case. First, at the time the Court of Appeals granted the writ, Calvert's Rule 10b-5 damages action had been before Judge Will for more than 21/2 years without a ruling on the basic legal issue underlying the claim. Second, and for me dispositive, the District Court indicated that it would give the state court's determination that the disputed transaction did not involve a "security" within the meaning of the 1934 Act res judicata effect, App. to Brief for Respondent Calvert Fire Insurance Co. E-1, thereby depriving Calvert of a federal-court determination of a legal issue within the exclusive jurisdiction of the federal courts. 50 This Court has held that mandamus will lie to correct a district court's improper deference to pending state-court proceedings, McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762 (1910), and to preserve a proper federal-court determination of a federal issue, Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). Where, as here, both of these justifications are present, the propriety of the issuance of the writ cannot be questioned. I would affirm the Court of Appeals. 1 Calvert's answer in the state action explicitly contended that it was "entitled to rescission of its purchase of the aforesaid security" because of the alleged Rule 10b-5 violation. App. to Pet. for Cert. D-5. It sought identical equitable relief in its federal complaint. Id., at E-6. See Weiner v. Shearson, Hammill & Co., 521 F.2d 817, 822 (CA9 1975); Aetna State Bank v. Altheimer, 430 F.2d 750, 754 (CA7 1970). 2 The state court, however, has reached a decision on the issue. The Circuit Court concluded that the agreement was not a security, and therefore struck the federal issues from Calvert's answer and counterclaim. On an interlocutory appeal the Illinois Appellate Court affirmed, holding that the agreement was not a security within the meaning of either the 1933 or the 1934 Act and that, in any event, § 2(b) of the McCarran-Ferguson Act, 15 U.S.C. § 1012(b) (1976 ed.), exempted insurance from the reach of the federal secu ities laws. American Mutual Reinsurance Co. v. Calvert Fire Ins. Co., 52 Ill.App.2d 922, 9 Ill.Dec. 670, 367 N.E.2d 104 (1977), pet. for leave to appeal denied, No. 50,085 (Jan. 26, 1978), cert. denied, No. 77-1361, 436 U.S. 906, 98 S.Ct. 2238, 56 L.Ed.2d 404 (1978). 3 As already noted, the stay order did not apply to Calvert's claim for damages under Rule 10b-5. Judge Will had stayed Calvert's claim for equitable relief because the state court had jurisdiction to rescind the agreement by recognition of a Rule 10b-5 defense. The petition did not seek to require Judge Will to proceed with the state-law claims or the federal claim based on the 1933 Act. 560 F.2d 792, 794 n. 2. 4 Although Calvert's petition addressed only its Rule 10b-5 claims, the court went on to note: "The logic behind our holding in this case supports the conclusion that the stay of 1933 Act claims, as well as the 1934 Act claims, was improper." 560 F.2d, at 797 n. 6. 5 A classic example of the proper issuance of the writ to protect eventual appellate jurisdiction is Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), in which a case had been remanded to the state courts on grounds utterly unauthorized by the controlling statute. The dissenters in that case urged that Congress had intended to bar all review of remand orders, not that mandamus would have been inappropriate absent such a bar. Id., at 354, 96 S.Ct., at 594 (REHNQUIST, J., joined by BURGER, C. J., and STEWART, J., dissenting). 6 This Court there held, not that the writ should issue, but that the Court of Appeals should have required the District Judge to show cause why the writ should not issue. Judge Carland presented an affidavit to this Court attempting to defend his stay order on the basis of substantially completed state proceedings. As that affidavit was not in the record before the Court of Appeals, this Court did not "pass upon the sufficiency of those proceedings to authorize the orders in question, ' 217 U.S., at 283, 30 S.Ct., at 505, but directed the Court of Appeals to do so in the first instance. 7 Although in at least one instance we approved the issuance of the writ upon a mere showing of abuse of discretion, La Buy v. Howes Leather Co., 352 U.S. 249, 257, 77 S.Ct. 309, 314, 1 L.Ed.2d 290 (1957), we warned soon thereafter against the dangers of such a practice. "Courts faced with petitions for the peremptory writs must be careful lest they suffer themselves to be misled by labels such as 'abuse of discretion' and 'want of power' into interlocutory review of nonappealable orders on the mere ground that they may be erroneous." Will v. United States, 389 U.S. 90, 98 n. 6, 88 S.Ct. 269, 275 n. 6, 19 L.Ed.2d 305 (1967). Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), is not to the contrary. Both the Court and the dissenters agreed that mandamus should issue to protect a clear right to a jury trial. Id., at 511, 79 S.Ct., at 957; ibid. (STEWART, J., dissenting). The Court simply concluded that it was "not permissible," id., at 508, 79 S.Ct., at 955, for the District Court to postpone a jury trial until after most of the relevant issues had been settled in an equitable action before the court. Here, we have repeatedly recognized that it is permissible for a district court to defer to the concurrent jurisdiction of a state court. 8 That a litigant's right to proceed with a duplicative action in a federal court can never be said to be "clear and indisputable" is made all the more apparent by our holding earlier this Term in General Atomic Co. v. Felter, 434 U.S. 12, 98 S.Ct. 1939, 56 L.Ed.2d 480 (1977), that a state court lacks the power to restrain vexatious litigation in the federal courts. There, we reaffirmed the principle that "[F]ederal Courts are fully capable of preventing their misuse for purposes of harassment." Id., at 19, 98 S.Ct., at 1940. 9 The only other issue encompassed by the writ was Calvert's Rule 10b-5 claim for equitable relief. It is not disputed here that the state court has jurisdiction to rescind the agreement as Calvert requests. That being conceded, we find no merit in Calvert's further argument that the statutory grant of exclusive jurisdiction in any way distinguishes this aspect of the case from our earlier decisions in which both the state and federal courts had power to grant the desired relief. * "Although the District Court had jurisdiction of the suit under the Federal Declaratory Judgments Act, it was under no compulsion to exercise that jurisdiction. The petitioner's motion to dismiss the bill was addressed to the discretion of the court. . . . The motion rested upon the claim that, since another proceeding was pending in a state court in which all the matters in controversy between the parties could be fully adjudicated, a declaratory judgment in the federal court was unwarranted. The correctness of this claim was certainly relevant in determining whether the District Court should assume jurisdiction and proceed to determine the rights of the parties. Ordinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues not governed by federal law, between the same parties. Gratuitous interference with the orderly and comprehensive disposition of a state court litigation should be avoided." 1 See, e. g., Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 344-345, 96 S.Ct. 584, 589-590, 46 L.Ed.2d 542 (1976); Meredith v. Winter Haven, 320 U.S. 228, 234-235, 64 S.Ct. 7, 10-11, 88 L.Ed. 9 (1943). 2 These decisions recognized, however, that even where a federal suit seeks only declaratory relief, a district court does not have unbridled authority to dismiss the action in deference to a concurrent state suit. For example, the court in Maryland Casualty Co. v. Consumers Finance Service, 101 F.2d, at 515, observed: "The granting of the remedy of a declaratory judgment is . . . discretionary with the court and it may be refused if it will not finally settle the rights of the parties or if it is being sought merely to determine issues involved in cases already pending. Aetna Casualty & Surety Co. v. Quarles, 4 Cir., 92 F.2d 321. It may not be refused, however, merely on the ground that another remedy is available . . . or because of the pendency of another suit, if the controversy between the parties will not necessarily be determined in that suit." 3 Because the Court of Appeals held that "the district court should not have deferred to the state court on grounds of federalism in light of Colorado River," it found it unnecessary to "reach the difficult issue of whether the conclusion of the state proceedings would have a collateral estoppel effect on the Rule 10b-5 claim for damages over which the court had retained jurisdiction but declined to resolve." 560 F.2d 792, 797.

89

437 U.S. 634 98 S.Ct. 2541 57 L.Ed.2d 489 UNITED STATES, Petitioner,v.Smith JOHN and Harry Smith John. Smith JOHN and Harry Smith John, Appellants, v. State of MISSISSIPPI. Nos. 77-836, 77-575. Argued April 19, 1978. Decided June 23, 1978. Syllabus Lands designated as a reservation for Choctaw Indians residing in central Mississippi held, on the basis of the history of the relations between the Mississippi Choctaws and the United States, to be "Indian country," as defined in 18 U.S.C. § 1151 (1976 ed.) to include "all land within the limits of any Indian reservation under the jurisdiction of the United States Government," and as used in the Major Crimes Act, 18 U.S.C. § 1153, which makes any Indian who commits certain specified offenses "within the Indian country . . . subject to the same laws and penalties as all other persons committing [such] offenses, within the exclusive jurisdiction of the United States." Neither the fact that the Choctaws in Mississippi are merely a remnant of a larger group of Indians, nor the fact that federal supervision over them has not been continuous, affects the federal power to deal with them under these statutes. Hence, the Major Crimes Act provided a proper basis for federal prosecution of a Choctaw Indian for assault with intent to kill (one of the specified offenses) occurring on such lands, and Mississippi had no power similarly to prosecute him for the same offense. Pp. 2543-2552. No. 77-836, 560 F.2d 1202, reversed and remanded; No. 77-575, 347 So.2d 959, reversed. H. Bartow Farr III, Phoenix, Ariz., for the United States. Richard B. Collins, Phoenix, Ariz., for Smith John and Harry Smith John. Carl F. Andre, Jackson, Miss., for the State of Mississippi. Mr. Justice BLACKMUN delivered the opinion of the Court. 1 These cases present issues concerning state and federal jurisdiction over certain crimes committed on lands within the area designated as a reservation for the Choctaw Indians residing in central Mississippi. More precisely, the questions presented are whether the lands are "Indian country," as that phrase is defined in 18 U.S.C. § 1151 (1976 ed.) and as it was used in the Major Crimes Act of 1885, being § 9 of the Act of Mar. 3, 1885, 23 Stat. 385, later codified as 18 U.S.C. § 1153, and, if so, whether these federal statutes operate to preclude the exercise of state criminal jurisdiction over the offenses. 2 * In October 1975, in the Southern District of Mississippi, Smith John1 was indicted by a federal grand jury for assault with intent to kill Artis Jenkins, in violation of 18 U.S.C. §§ 1153 and 113(a).2 He was tried before a jury and, on December 15, was convicted of the lesser included offense of simple assault.3 A sentence of 90 days in a local jail-type institution and a fine of $300 were imposed. On appeal, the United States Court of Appeals for the Fifth Circuit, considering the issue on its own motion, see App. to Pet. for Cert. in No. 77-836, p. 39A, ruled that the District Court was without jurisdiction over the case because the lands designated as a reservation for the Choctaw Indians residing in Mississippi, and on which the offense took place, were not "Indian country," and that, therefore, § 1153 did not provide a basis for federal prosecution. 560 F.2d 1202, 1205-1206 (1977). The United States sought review, and we granted its petition for certiorari in No. 77-836. 434 U.S. 1032, 98 S.Ct. 764, 54 L.Ed.2d 779 (1978). 3 In April 1976, Smith John4 was indicted by a grand jury of Leake County, Miss., for aggravated assault upon the same Artis Jenkins, in violation of Miss.Code Ann. § 97-3-7(2) (Supp.1977). The incident that was the subject of the state indictment was the same as that to which the federal indictment related. A motion to dismiss the charge on the ground the federal jurisdiction was exclusive was denied. John was tried before a jury in the Circuit Court of Leake County and, in May 1976, was convicted of the offense charged. He was sentenced to two years in the state penitentiary. On appeal, the Supreme Court of Mississippi, relying on its earlier decision in Tubby v. State, 327 So.2d 272 (1976), and on the decision of the United States Court of Appeals for the Fifth Circuit in United States v. State Tax Comm'n, 505 F.2d 633 (1974), rehearing denied, 535 F.2d 300, rehearing en banc denied, 541 F.2d 469 (1976), held that the United States District Court had had no jurisdiction to prosecute Smith John, and that, therefore, his arguments against state-court jurisdiction were without merit. 347 So.2d 959 (1977). Characterizing the case as one falling within this Court's jurisdiction under 28 U.S.C. § 1257(2) (1976 ed.), Smith John filed notice of an appeal in No. 77-575. We postponed jurisdiction, 434 U.S. 1032, 98 S.Ct. 764, 54 L.Ed.2d 779 (1978). We now note jurisdiction. Antoine v. Washington, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973). II 4 There is no dispute that Smith John is a Choctaw Indian, and it is presumed by all that he is a descendant of the Choctaws who for hundreds of years made their homes in what is now central Mississippi. The story of these Indians, and of their brethren who left Mississippi to settle in what is now the State of Oklahoma, has been told in the pages of the reports of this Court and of other federal courts. See, e. g., Choctaw Nation v. Oklahoma, 397 U.S. 620, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970); Winton v. Amos, 255 U.S. 373, 41 S.Ct. 342, 65 L.Ed. 684 (1921); Fleming v. McCurtain, 215 U.S. 56, 30 S.Ct. 16, 54 L.Ed. 88 (1909); United States v. Choctaw Nation, 179 U.S. 494, 21 S.Ct. 149, 45 L.Ed. 291 (1900); Choctaw Nation v. United States, 119 U.S. 1, 7 S.Ct. 75, 30 L.Ed. 306 (1886); Chitto v. United States, 138 F.Supp. 253, 133 Ct.Cl. 643, cert. denied, 352 U.S. 841, 77 S.Ct. 64, 1 L.Ed.2d 57 (1956); Choctaw Nation v. United States, 81 Ct.Cl. 1, cert. denied, 296 U.S. 643, 56 S.Ct. 246, 80 L.Ed. 457 (1935). 5 At the time of the Revolutionary War, these Indians occupied large areas of what is now the State of Mississippi. In the years just after the formation of our country, they entered into a treaty of friendship with the United States. Treaty at Hopewell, 7 Stat. 21 (1786). But the United States allow for westward expansion. The Choctaws, in an attempt to avoid what proved to be their fate, entered into a series of treaties gradually relinquishing their claims to these lands.5 6 Despite these concessions, when Mississippi became a State on December 10, 1817, the Choctaws still retained claims, recognized by the Federal Government, to more than three-quarters of the land within the State's boundaries. The popular pressure to make these lands available to non-Indian settlement, and the responsibility for these Indians felt by some in the Government, combined to shape a federal policy aimed at persuading the Choctaws to give up their lands in Mississippi completely and to remove to new lands in what for many years was known as the Indian Territory, now a part of Oklahoma and Arkansas. The first attempt to effectuate this policy, the Treaty at Doak's Stand, 7 Stat. 210 (1820), resulted in an exchange of more than 5 million acres. Because, however, of complications arising when it was discovered that much of the land promised the Indians already had been settled, most Choctaws remained in Mississippi. A delegation of Choctaws went to Washington, D. C., to untangle the situation and to negotiate yet another treaty. See 7 Stat. 234 (1825). Still, few Choctaws moved. 7 Only after the election of Andrew Jackson to the Presidency in 1828 did the federal efforts to persuade the Choctaws to leave Mississippi meet with some success.6 Even before Jackson himself had acted on behalf of the Federal Government, however, the State of Mississippi, grown impatient with federal policies, had taken steps to assert jurisdiction over the lands occupied by the Choctaws. In early 1829, legislation was enacted purporting to extend legal process into the Choctaw territory. 1824-1838 Miss.Gen.Laws 195 (Act of Feb. 4, 1829). In his first annual address to Congress on December 8, 1829, President Jackson made known his position on the Indian question and his support of immediate removal. S. Doc. No. 1, 21st Cong., 1st Sess., 15-16 (1829). Further encouraged, the Mississippi Legislature passed an Act purporting to abolish the Choctaw government and to impose a fine upon anyone assuming the role of chief. The Act also declared that the rights of white persons living within the State were to be enjoyed by the Indians, and that the laws of the State were to be in effect throughout the territory they occupied. 1824-1838 Miss.Gen.Laws 207 (Act of Jan. 19, 1830). 8 In Washington, Congress debated whether the States had power to assert such jurisdiction and whether such assertions were wise.7 But the only message heard by the Choctaws in Mississippi was that the Federal Government no longer would stand between the States and the Indians. Appreciating these realities, the Choctaws again agreed to deal with the Federal Government. On September 27, 1830, the Treaty at Dancing Rabbit Creek, 7 Stat. 333, was signed.8 It provided that the Choctaws would cede to the United States all lands still occupied by them east of the Mississippi, more than 10 million acres. They were to remove to lands west of the river, where they would remain perpetually free of federal or state ontrol, by the fall of 1833. The Government would help plan and pay for this move. Each Choctaw "head of a family being desirous to remain and become a citizen of the States," id., at 335, however, was to be permitted to do so by signifying his intention within six months to the federal agent assigned to the area. Lands were to be reserved, at least 640 acres per household, to be held by the Indians in fee simple if they would remain upon the lands for five years. Ibid. Other lands were reserved to the various chiefs and to others already residing on improved lands. Id., at 335-336. Those who remained, however, were not to "lose the privilege of a Choctaw citizen," id., at 335, although they were to receive no share of the annuity provided for those who chose to remove. 9 The relations between the Federal Government and the Choctaws remaining in Mississippi did not end with the formal ratification of the Treaty at Dancing Rabbit Creek by the United States Senate in February 1831. 7 Cong.Deb. 347 (1831). The account of the federal attempts to satisfy the obligations of the United States both to those who remained,9 and to those who removed,10 is one best left to historians. It is enough to say here that the failure of these attempts, characterized by incompetence, if not corruption, proved an embarrassment and an intractable problem for the Federal Government for at least a century. See, e. g., Chitto v. United States, 138 F.Supp. 253, 133 Ct.Cl. 643 (1956). It remained federal policy, however, to try to induce these Indians to leave Mississippi. 10 During the 1890's, the Federal Government became acutely aware of the fact that not all the Choctaws had left Mississippi. At that time federal policy toward the Indians favored the allotment at tribal holdings, including the Choctaw holdings in the Indian Territory, in order to make way for Oklahoma's statehood. The inclusion of the Choctaws then residing in Mississippi in the distribution of these holdings proved among the largest obstacles encountered during the allotment effort.11 But even during this era, when federal policy again supported the removal of the Mississippi Choctaws to join their brethren in the West, there was no doubt that there remained persons in Mississippi who were properly regarded both by the Congress and by the Executive Branch as Indians. 11 It was not until 1916 that this federal recognition of the presence of Indians in Mississippi was manifested by other than attempts to secure their removal. The appropriations for the Bureau of Indian Affairs in that year included an item (for $1,000) to enable the Secretary of the Interior "to investigate the condition of the Indians living in Mississippi" and to report to Congress "as to their need for additional land and school facilities." 39 Stat. 138. See H.R.Doc. No. 1464, 64th Cong., 2d Sess. (1916). In March 1917, hearings were held in Union, Miss., by the House Committee on Investigation of the Indian Service, again exploring the desirability of providing federal services for these Indians. The efforts resulted in an inclusion in the general appropriation for the Bureau of Indian Affairs in 1918. This appropriation, passed only after debate in the House, 56 Cong.Rec. 1136-1140 (1918), included funds for the establishment of an agency with a physician, for the maintenance of schools, and for the purchase of land and farm equipment.12 Lands purchased through these appropriations were to be sold on contract to individuals in keeping with the general pattern of providing lands eventually to be held in fee by individual Indians, rather than held collectively. Further provisions for the Choctaws in Mississippi were made in similar appropriations in later years.13 12 In the 1930's, the federal Indian policy had shifted back toward the preservation of Indian communities generally. This shift led to the enactment of the Indian Reorganization Act of 1934, 48 Stat. 984, and the discontinuance of the allotment program. The Choctaws in Mississippi were among the many groups who, before the legislation was enacted, voted to support its passage. This vote was reported to Congress by the Bureau of I dian Affairs. See Hearings on S. 2755 and S. 3645 before the Senate Committee on Indian Affairs, 73d Cong., 2d Sess., pt. 2, p. 82 (1934); Hearings on H.R. 7902 before the House Committee on Indian Affairs, 73d Cong., 2d Sess., 423 (1934). On March 30, 1935, the Mississippi Choctaws voted, as anticipated by § 18 of the Act, 48 Stat. 988, 25 U.S.C. § 478 (1976 ed.), to accept the provisions of the Act. T. Haas, Ten Years of Tribal Government Under I. R. A. 17 (U.S. Indian Service, Tribal Relations Pamphlet No. 1 (1947)). 13 By this time, it had become obvious that the original method of land purchase authorized by the 1918 appropriations—by contract to a particular Indian purchaser—not only was inconsistent with the new federal policy of encouraging the preservation of Indian communities with commonly held lands, but also was not providing the Mississippi Choctaws with the benefits intended. See H.R.Rep.No.194, 76th Cong., 1st Sess. (1939). In 1939, Congress passed an Act providing essentially that title to all the lands previously purchased for the Mississippi Choctaws would be "in the United States in trust for such Choctaw Indians of one-half or more Indian blood, resident in Mississippi, as shall be designated by the Secretary of the Interior." Ch. 235, 53 Stat. 851. In December 1944, the Assistant Secretary of the Department of the Interior officially proclaimed all the lands then purchased in aid of the Choctaws in Mississippi, totaling at that time more than 15,000 acres, to be a reservation. 9 Fed.Reg. 14907.14 14 In April 1945, again as anticipated by the Indian Reorganization Act, § 16, 48 Stat. 987, 25 U.S.C. § 476 (1976 ed.), the Mississippi Band of Choctaw Indians adopted a constitution and bylaws; these were duly approved by the appropriate federal authorities in May 1945.15 15 With this historical sketch as background, we turn to the jurisdictional issues presented by Smith John's case. III 16 In order to determine whether there is federal jurisdiction over the offense with which Smith John was charged (alleged in the federal indictment to have been committed "on and within the Choctaw Indian Reservation and on land within the Indian country under the jurisdiction of the United States of America"), we first look to the terms of the statute upon which the United States relies, that is, the Major Crimes Act, 18 U.S.C. § 1153. This Act, as codified at the time of the alleged offense, provided: "Any Indian who COMMITS . . . ASSAULT WITH INTENT TO KILL . . . WIthin the indian country, shall be subject to the same laws and penalties as all other persons committing any [such offense], within the exclusive jurisdiction of the United States." The definition of "Indian country" as used here and elsewhere in chapter 53 of Title 18 is provided in § 1151.16 Both the Mississippi Supreme Court and the Court of Appeals concluded that the situs of the alleged offense did not constitute "Indian country," and that therefore § 1153 did not afford a basis for the prosecution of Smith John in federal court. We do not agree. 17 With certain exceptions not pertinent here, § 1151 includes within the term "Indian country" three categories of land. The first, with which we are here concerned,17 is "all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent." This language first appeared in the Code in 1948 as a part of the general revision of Title 18. The Reviser's Notes indicate that this definition was based on several decisions of this Court interpreting the term as it was used in various criminal statutes relating to Indians. In one of these cases, United States v. McGowan, 302 U.S. 535, 58 S.Ct. 286, 82 L.Ed. 410 (1938), the Court held that the Reno Indian Colony, consisting of 28.38 acres within the State of Nevada, purchased out of federal funds appropriated in 1917 and 1926 and occupied by several hundred Indians theretofore scattered throughout Nevada, was "Indian country" for the purposes of what was then 25 U.S.C. § 247 (the predecessor of 18 U.S.C. § 3618 (1976 ed.)), providing for the forfeiture of a vehicle used to transport intoxicants into the Indian country. The Court noted that the "fundamental consideration of both Congress and the Department of the Interior in establishing this colony has been the protection of a dependent people." 302 U.S., at 538, 58 S.Ct., at 287. The principal test applied was drawn from an earlier case, United States v. Pelican, 232 U.S. 442, 34 S.Ct. 396, 58 L.Ed. 676 (1914), and was whether the land in question "had been validly set apart for the use of the Indians as such, under the superintendence of the Government." Id., at 449, 34 S.Ct., at 399; 302 U.S., at 539, 58 S.Ct., at 288.18 18 The Mississippi lands in question here were declared by Congress to be held in trust by the Federal Government for the benefit of the Mississippi Choctaw Indians who were at that time under federal supervision. There is no apparent reason why these lands, which had been purchased in previous years for the aid of those Indians, did not become a "reservation," at least for the purposes of federal criminal jurisdiction at that particular time. See United States v. Celestine, 215 U.S. 278, 285, 30 S.Ct. 93, 94, 54 L.Ed. 195 (1909). But if there were any doubt about the matter in 1939 when, as hereinabove described, Congress declared that title to lands previously purchased for the Mississippi Choctaws would be held in trust, the situation was completely clarified by the proclamation in 1944 of a reservation and the subsequent approval of the constitution and bylaws adopted by the Mississippi Band. 19 The Court of Appeals and the Mississippi Supreme Court held, and the State now argues, that the 1944 proclamation had no effect because the Indian Reorganization Act of 1934 was not intended to apply to the Mississippi Choctaws. Assuming for the moment that authority for the proclamation can be found only in the 1934 Act, we find this argument unpersuasive. The 1934 Act defined "Indians" not only as "all persons of Indian descent who are members of any recognized [in 1934] tribe now under Federal jurisdiction," and their descendants who then were residing on any Indian reservation, but also as "all other persons of one-half or more Indian blood." 48 Stat. 988, 25 U.S.C. § 479 (1976 ed.). There is no doubt that persons of this description lived in Mississippi, and were recognized as such by Congress and by the Department of the Interior, at the time the Act was passed.19 The references to the Mississippi Choctaws in the legislative history of the Act, see supra, at 645-646, confirm our view that the Mississippi Choctaws were not to be excepted from the general operation of the 1934 Act.20 IV 20 Mississippi appears to concede, Brief for Appellee in No. 77-575, p. 44, that if § 1153 provides a basis for the prosecution of Smith John for the offense charged, the State has no similar jurisdiction. This concession, based on the assumption that § 1153 ordinarily is pre-emptive of state jurisdiction when it applies, seems to us to be correct.21 It was a necessary premise of at least one of our earlier decisions. Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962). See also Williams v. Lee, 358 U.S. 217, 220, and n. 5, 79 S.Ct. 269, 270, 3 L.Ed.2d 251 (1959); Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367 (1945); In re Carmen's Petition, 165 F.Supp. 942 (N.D.Cal.1958), aff'd sub. nom. Dickson v. Carmen, 270 F.2d 809 (CA9 1959), cert. denied, 361 U.S. 934, 80 S.Ct. 375, 4 L.Ed.2d 355 (1960).22 21 The State argues, however, that the Federal Government has no power to produce this result. It suggests that since 1830 the Choctaws residing in Mississippi have become fully assimilated into the political and social life of the State, and that the Federal Government long ago abandoned its supervisory authority over these Indians. Because of this abandonment, and the long lapse in the federal recognition of a tribal organization in Mississippi, the power given Congress "[t]o regulate Commerce . . . with the Indian Tribes," Const. Art. I, § 8, cl. 3, cannot provide a basis for federal jurisdiction. To recognize the Choctaws in Mississippi as Indians over whom special federal power may be exercised would be anomalous and arbitrary.23 22 We assume for purposes of argument, as does the United States, that there have been times when Mississippi's jurisdiction over the Choctaws and their lands went unchallenged. But, particularly in view of the elaborate history, recounted above, of relations between the Mississippi Choctaws and the United States, we do not agree that Congress and the Executive Branch have less power to deal with the affairs of the Mississippi Choctaws than with the affairs of other Indian groups. Neither the fact that the Choctaws in Mississippi are merely a remnant of a larger group of Indians, long ago removed from Mississippi, nor the fact that federal supervision over them has not been continuous, destroys the federal power to deal with them. United States v. Wright, 53 F.2d 300 (CA4 1931), cert. denied, 285 U.S. 539, 52 S.Ct. 312, 76 L.Ed. 932 (1932).24 23 The State also argues that the Federal Government may not deal specially with the Indians within the State's boundaries because to do so would be inconsistent with the Treaty at Dancing Rabbit Creek. This argument may seem to be a cruel joke to those familiar with the history of the execution of that treaty, and of the treaties that renegotiated claims arising from it. See supra, at 640-643. And even if that treaty were the only source regarding the status of these Indians in federal law, we see nothing in it inconsistent with the continued federal supervision of them under the Commerce Clause. It is true that this treaty anticipated that each of those electing to remain in Mississippi would become "a citizen of the States," but the extension of citizenship status to Indians does not, in itself, end the powers given Congress to deal with them. See United States v. Celestine, 215 U.S. 278, 30 S.Ct. 93, 54 L.Ed. 195 (1909). V 24 We therefore hold that § 1153 provides a proper basis for federal prosecution of the offense involved here, and that Mississippi has no power similarly to prosecute Smith John for that same offense. Accordingly, the judgment of the Supreme Court of Mississippi in No. 77-575 is reversed; further, the judgment of the United States Court of Appeals for the Fifth Circuit in No. 77-836 is reversed, and that case is remanded for further proceedings consistent with this opinion. 25 It is so ordered. 1 Smith John's son, Harry Smith John, also was charged jointly with his father in the federal indictment. The United States and counsel for the Johns have advised the Court of Harry Smith John's death on February 18, 1978, and concede that as to him the case is moot. Brief for United States 3; Brief for John et al. 1. The brief for the State of Mississippi is silent as to this. We agree that both cases are moot as to Harry Smith John. 2 At the time of the alleged offense, 18 U.S.C. § 1153 read: "Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, rape, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, incest, assault with intent to kill, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States. "As used in this section, the offenses of rape and assault with intent to commit rape shall be defined in accordance with the laws of the State in which the offense was committed, and any Indian who commits the offenses of rape or assault with intent to commit rape upon any female Indian within the Indian country shall be imprisoned at the discretion of the court. "As used in this section, the offenses of burglary, assault with a dangerous weapon, assault resulting in serious bodily injury, and incest shall be defined and punished in accordance with the laws of the State in which such offense was committed." This section has since been amended by the Indian Crimes Act of 1976, 90 Stat. 585, which added kidnaping to the list of offenses covered and made changes, not pertinent to these cases, in the ways in which state law is incorporated. Section 113, the statute specifying punishment for assaults committed within the special territorial jurisdiction of the United States, including those for which federal prosecutions are authorized by § 1153, was also amended by the same Act. See H.R.Rep.No.94-1038 (1976); S.Rep.No.94-620 (1976), U.S.Code Cong. & Admin.News 1976, p. 1125. 3 Under Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), Smith John was entitled to instructions regarding this lesser included offense. It appears, however, see Brief for John et al. 5; Brief for United States 4, and n. 6, that Smith John argued before the Court of Appeals that although he was entitled to such instructions, the District Court had no jurisdiction to enter a judgment of conviction for the lesser offense, a misdemeanor not listed in § 1153. The Court of Appeals, in deciding that the statute did not apply even to the extent urged by the United States, did not reach the issue. I has not been argued before this Court. See, however, Felicia v. United States, 495 F.2d 353 (CA8), cert. denied, 419 U.S. 849, 95 S.Ct. 88, 42 L.Ed.2d 79 (1974). 4 Harry Smith John was also jointly charged with his father under the Mississippi indictment, and was convicted. As stated above, counsel for Harry Smith John concedes that the death of Harry Smith John on February 18, 1978, renders the state case moot as to him. Brief for John et al. 1. 5 Treaty at Fort Adams, 7 Stat. 66 (1801) (21/2 million acres ceded); Treaty at Fort Confederation, 7 Stat. 73 (1802) (establishment of boundaries generally); Treaty at Hoe-Buckin-too-pa, 7 Stat. 80 (1803) (900,000 acres in conformity with the Fort Confederation agreement); Treaty at Mount Dexter, 7 Stat. 98 (1805) (4 million acres); Treaty at Fort St. Stephens, 7 Stat. 152 (1816) (ceding a relatively small tract where Columbus, Miss., now stands). See A. DeRosier, Jr., The Removal of the Choctaw Indians 29 (1970). 6 Andrew Jackson had been one of the two commissioners sent to negotiate the Treaty at Doak's Stand. From the land ceded by the Choctaws under that treaty, a new state capital, to be named Jackson, was planned. P. Fortune, The Formative Period, in 1 A History of Mississippi 255 (R. McLemore ed., 1973). Jackson's position with regard to the removal of the Indians played a significant role in his Presidential election and in his popularity in Mississippi. Id., at 277. See generally DeRosier, supra n. 5, at 100-115; M. Young, Redskins, Ruffleshirts, and Rednecks: Indian Allotments in Alabama and Mississippi, 1830-1860, pp. 14-21 (1961); G. Foreman, Indian Removal: The Emigration of the Five Civilized Tribes of Indians 21 (1953 ed.); F. Cohen, Handbook of Federal Indian Law 56-59 (1941); Prucha, Andrew Jackson's Indian Policy: A Reassessment, 56 J. of Am. Hist. 527 (1969). 7 See, e. g., 6 Cong.Deb. 585 (1830). These debates culminated on May 28, 1830, in the passage of the Indian Removal Bill. 4 Stat. 411. See generally A. Abel, The History of Events Resulting in Indian Consolidation West of the Mississippi River, in 1906 Annual Report of the American Historical Assn. 377-382 (1908). They also set the stage for the constitutional crisis surrounding this Court's decision in Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832), that the States had no power over the Indians and the Indian lands within their boundaries. See generally Burke, The Cherokee Cases: A Study in Law, Politics, and Morality, 21 Stan.L.Rev. 500 (1969); Miles, After John Marshall's Decision: Worcester v. Georgia and the Nullification Crisis, 39 J. of So. Hist. 519 (1973). 8 Perhaps the best evidence of the circumstances surrounding this treaty lies in its very words. As signed by the Choctaws, it contained the following preamble: "Whereas the General Assembly of the State of Mississippi has extended the laws of said State to persons and property within the chartered limits of the [Choctaw lands], and the President of the United States has said that he cannot protect the Choctaw people from the operation of these laws; Now therefore that the Choctaw may live under their own laws in peace with the United States and the State of Mississippi they have determined to sell their lands east of the Mississippi and have accordingly agreed to the following articles of treaty." The preamble was stricken from the treaty as ratified by the Senate. 7 Cong.Deb. 346-347 (1831). 9 See generally, Chitto v. United States, 138 F.Supp. 253, 133 Ct.Cl. 643, cert. denied, 352 U.S. 841, 77 S.Ct. 64, 1 L.Ed.2d 57 (1956); Young, supra, n. 6, at 47-72; Riley, Choctaw Land Claims, 8 Publications of the Mississippi Historical Society 345 (1904). It is generally that, whether anxious to conceal the fact that far more Choctaws had remained in Mississippi than he had anticipated originally, or simply because he was disinterested in his job and generally dissolute, the agent in charge of the task refused to record the claims of those who elected to remain. See, e. g. Coleman v. Doe, 12 Miss. 40 (1844); Chitto v. United States, 138 F.Supp., at 257, 133 Ct.Cl., at 648-649. Speculators soon began pressing the cause of those who had been refused. Perhaps in large part due to their efforts, and the cloud created on the ceded lands as they were put up for sale without the proper recordation of Indian claims, Congress soon authorized investigation of the situation. See 7 American State Papers, Public Lands 448-525 (1860); H.R.Rep.No.663, 24th Cong., 1st Sess. (1836). Although one might wonder whether it was concern for the preservation of the claims for the Indians, or simply concern for the preservation of the claims, that motivated subsequent events, measures were taken to remedy the situation and to provide substitute lands for the Choctaws to replace those lands sold despite their attempt to file claims. One measure provided that the claimants would be issued scrip enabling them to claim substitute lands, but half the scrip was not to be delivered unless the claimants removed to territory west of the Mississippi. Act of Aug. 23, 1842, 5 Stat. 513. The administration of this statute was as unsuccessful as had been the administration of the original treaty. It appears that in practice, none of the scrip was delivered before removal, Chitto v. United States, 138 F.Supp., at 257, 133 Ct.Cl., at 649, and that Congress later established a fund to be paid in lieu of part of the scrip. 5 Stat. 777 (1845). After an attempt at settlement in 1852 proved unsuccessful, the United States and the Choctaws in Oklahoma in 1855 entered into still another treaty that provided that the Senate would make a determination of the amounts owing to the Choctaws generally for the failure of the United States to abide by its various treaty promises. Treaty of June 22, 1855, 11 Stat. 611. In March 1859, the Senate approved the general formula under which those amounts were to be calculated, Cong.Globe, 35th Cong., 2d Sess., 1691; S.Rep.No.374, 35th Cong., 2d Sess. (1859), and the Secretary of the Interior, pursuant to this direction, computed the total to be almost $3 million. See House R. Exec.Doc. No. 82, 36th Cong., 1st Sess. (1860), reprinted in H.R.Rep.No.251, 45th Cong., 2d Sess., 12 (1878). The War Between the States interrupted the payment of this Senate award, and, after the war, the Choctaws found themselves forced to prove their claims once again, this time in the federal courts. See Choctaw Nation v. United States, 119 U.S. 1, 7 S.Ct. 75, 30 L.Ed. 306 (1886), rev'g 21 Ct.Cl. 59. 10 See generally DeRosier, supra at 129-167; Wright, The Removal of the Choctaws to the Indian Territory 1830-1833, 6 Chronicles of Oklahoma 103 (1928); A. Debo, The Rise and Fall of the Choctaw Republic 56 (2d ed. 1961); n. 9, supra. 11 The potential right of the Choctaws who had not removed to participate in any general allotment of the Oklahoma lands was acknowledged in the treaty entered into by the United States and the Choctaws and Chickasaws at the close of the war. 14 Stat. 774 (1866). But a new series of frauds and speculation made implementation of this policy difficult when the allotment eventually took place. See the essentially contemporaneous account of these events provided in Wade, The Removal of the Mississippi Choctaws, 8 Publications of the Mississippi Historical Society 397 (1904). In response to a flood of claims of those purporting to be Mississippi Choctaws to whom a portion of its holdings in Oklahoma should b distributed, the Choctaw Nation resisted attempts to include Mississippi Choctaws on its rolls. Between 1897 and 1907, when the Choctaw rolls were finally closed, repeated efforts were made by the Dawes Commission, and by Congress, to determine the appropriate criteria for enrollment of the Mississippi Choctaws, and their participation in the allotment. Again, any participation was conditioned on removal from Mississippi. See the complete account of these efforts in Estate of Winton v. Amos, 51 Ct.Cl. 284 (1916), rev'd in part and aff'd in part, 255 U.S. 373, 41 S.Ct. 342, 65 L.Ed. 684 (1921). 12 40 Stat. 573 (1918). See Hearings on Indian Appropriation Bill before a Subcommittee of the House Committee on Indian Affairs, 65th Cong., 2d Sess., 153, 175-176 (1918). Shortly after this appropriation was made, Cato Sells, Commissioner of Indian Affairs, traveled to Mississippi to gain firsthand information about the Indians there. In his annual report, he observed: "Practically all of the Mississippi Choctaws are full-bloods. Very few own their homes. They are almost entirely farm laborers or share croppers. They are industrious, honest, and necessarily frugal. Most of them barely exist, and some suffer from want of the necessaries of life and medical aid. In many of the homes visited by me there was conspicuous evidence of pitiable poverty. I discovered families with from three to five children, of proper age, not one of whom had spent a day of their life in school. With very few exceptions they indicated willingness to go to school, as did their parents to send them. Several young Choctaw boys and girls expressed an ardent desire for an education." Report of the Commissioner of Indian Affairs, in 2 Reports of the Department of the Interior, 1918, pp. 79-80 (1919). 13 41 Stat. 15 (1919), 41 Stat. 420 (1920); 41 Stat. 1236 (1921); 42 Stat. 570 (1922); 42 Stat. 1191 (1923); 43 Stat. 409 (1924); 43 Stat. 1149, 1155, 1159 (1925); 44 Stat. 461, 468, 472 (1926); 44 Stat. 941, 947, 951 (1927); 45 Stat. 206, 216, 220 (1928); 45 Stat. 1568, 1578, 1581 (1929); 46 Stat. 286, 299 (1930); 46 Stat. 1121, 1135 (1931); 47 Stat. 109 (1932). 14 By its language, the 1939 Act affected only those lands that were "not under contract for resale to Choctaw Indians, or on which existing contracts of resale may hereafter be canceled." The 1944 Proclamation of Reservation recited specifically that it was issued "by virtue of the authority contained in the act of June 21, 1939, and in section 7 of the act of June 18, 1934," and that no such acquired lands were covered by any outstanding contract "for the resale of any part thereof to any Choctaw or other Indian." 15 This constitution has since been amended in response to the Indian Civil Rights Act of 1968, 25 U.S.C. § 1301 et seq. (1976 ed.). 16 As originally enacted, the Major Crimes Act made no reference to "Indian country" but, instead, referred to any "reservation" within the States and the Territories. See n. 22, infra. The legislation retained t is general form when it was re-enacted as § 328 of the Criminal Code of 1909, 35 Stat. 1151 (codified from 1926 to 1948 as 18 U.S.C. § 548), and amended, 47 Stat. 336 (1932) (adding incest to the list of crimes covered, deleting the reference to the Territories, and providing expressly that rights of way running through a reservation were to be included as part of the reservation). In the 1948 revision of Title 18, however, the express reference to "reservation" was deleted in favor of the use of the term "Indian country," which was used in most of the other special statutes referring to Indians, and as defined in § 1151. See Reviser's Note, and n. 18, infra. The Act has since been amended four times, 63 Stat. 94 (1949) (relating to the punishment for the crime of rape); 80 Stat. 1100 (1966) (adding carnal knowledge and assault with intent to rape); 82 Stat. 80 (1968) (adding assault resulting in serious bodily injury); 90 Stat. 585 (1976) (see n. 2, supra ), but its form has not been changed substantially. 17 The second category for inclusion within the definition of "Indian country" is "all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State." The third category is "all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same." Inasmuch as we find in the first category a sufficient basis for the exercise of federal jurisdiction in this case, we need not consider the second and third categories. 18 Some earlier cases had suggested a more technical and limited definition of "Indian country." See, e. g., Bates v. Clark, 95 U.S. 204, 24 L.Ed. 471 (1877). Throughout most of the 19th century, apparently the only statutory definition was that in § 1 of the Act of June 30, 1834, 4 Stat. 729. But this definition was dropped in the compilation of the Revised Statutes. See Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883). This Court was left with little choice but to continue to apply the principles established under the earlier statutory language and to develop them according to changing conditions. See, e. g., Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913). It is the more expansive scope of the term that was incorporated in the 1948 revision of Title 18. 19 A report completed just after the passage of the Act recounts: "After all the years of living in and among both white and colored race, it is indeed surprising to find that approximately 85 percent of this group are full bloods. Their racial integrity is intact in spite of the absence of permanent holdings or any sort of community life. Many of the older Choctaws do not speak English." E. Groves, Notes on the Choctaw Indians, Feb. 20-Mar. 20, 1936, p. 1 (Bureau of Indian Affairs). 20 The State of Mississippi makes much of a sentence contained in an unpublished memorandum dated August 31, 1936, of the Solicitor for the Department of the Interior. It reads: "They [the Indians remaining in Mississippi] cannot now be regarded as a tribe." See F. Cohen, Handbook of Federal Indian Law 273 (1941). A reading of the entire memorandum, however, convinces us that it supports the position of the United States in this case. The memorandum was concerned only with the proper description of the Indians in the deeds relating to lands purchased according to the provisions of the Indian Reorganization Act. At least one deed had been prepared designating the grantee as "the United States in trust for the Choctaw tribe of Mississippi." The memorandum recommended that, because the Indians could not be regarded as a tribe at that time, the deeds be written designating the grantee as "[t]he United States in trust for such Choctaw Indians of one-half or more Indian blood, resident in Mississippi, as shall be designated by the Secretary of the Interior, until such time as the Choctaw Indians of Mississippi shall be organized as an Indian tribe pursuant to the act of June 18, 1934 (48 Stat. 984) [the Indian Reorganization Act], and then in trust for such organized tribe." Surely thi is evidence that although there was no legal entity known as "the Choctaw tribe of Mississippi," the Department of the Interior anticipated that a more formal legal entity, a tribe for the purposes of federal Indian law, soon would exist. 21 We do not consider here the more disputed question whether § 1153 also was intended to pre-empt tribal jurisdiction. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 203-204, n. 14, 98 S.Ct. 1011, 1018, 55 L.Ed.2d 209 (1978); United States v. Wheeler, 435 U.S. 313, 325 n. 22, 98 S.Ct. 1079, 1087, 55 L.Ed.2d 303 (1978). 22 There is much in the legislative history to support this view. The Major Crimes Act was approved on March 3, 1885, 23 Stat. 385, in part in response to the decision of this Court in Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883). See United States v. Kagama, 118 U.S. 375, 382-383, 6 S.Ct. 1109, 1113, 30 L.Ed. 228 (1886). As originally proposed in the House, the bill provided that Indians committing the specified crimes "within any Territory of the United States, and either within or without an Indian reservation, shall be subject therefor to the laws of such Territory relating to said crimes," and, similarly, that Indians committing the same crimes "within the boundaries of any State of the United States, and either within or without an Indian reservation, shall be subject to the same laws . . . as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States." 16 Cong.Rec. 934 (1885). It became apparent in conference on the bill that this language would have a far broader effect than originally intended, for the language proposed would "take away from State courts, whether there be a reservation in the State or not" jurisdiction over the listed crimes when committed by an Indian. Id., at 2385. The provision was then amended to read "all such Indians committing any of the above crimes . . . within the boundaries of any State of the United States, and within the limits of any Indian reservation," and was agreed to with this change. 23 Mississippi has made no effort, either in this Court or in the courts below, to support this argument with evidence of the assimilation of the Choctaw Indians in Mississippi, or with a demonstration of the services provided for th m. There is evidence that some educational services have been provided by the State. See J. Peterson, The Mississippi Band of Choctaw Indians: Their Recent History and Current Social Relations 84, and passim (Ph.D. dissertation, University of Georgia 1970); J. Jennings, V. Beggs, & A. Caldwell, A Study of the Social and Economic Condition of the Choctaw Indians in Mississippi in Relation to the Educational Program 4 (Bureau of Indian Affairs 1945); T. Taylor, The States and Their Indian Citizens 177 (1972). But the provision of state services to Indians would not prove that the Federal Government had relinquished its ability to provide for these Indians under its Article I power. 24 We need not be concerned, as Mississippi hints, that the assumption of federal criminal jurisdiction over the Choctaw Indians in Mississippi, if not historically anomalous, is inconsistent with the intent of Congress. In the early 1950's, when federal Indian policy again emphasized assimilation, a thorough survey was made of all the then recognized tribes and their economic and social conditions. These efforts led to a congressional resolution calling for the freedom of certain tribes from federal supervision "at the earliest possible time," 67 Stat. B 132 (1953), conferring on certain designated States jurisdiction with respect to criminal offenses and civil causes committed or arising on Indian reservations, and granting federal consent to the assertion of state jurisdiction by other States. Id., at 588-590. The Mississippi Band of Choctaw Indians was among those for whom the Bureau of Indian Affairs recommended continued supervision. See H.R.Rep.No.2680, 83d Cong., 2d Sess., 31-32, and passim (1954). See also H.R.Rep.No.2503, 82d Cong., 2d Sess., 313 (1953).

12

438 U.S. 265 98 S.Ct. 2733 57 L.Ed.2d 750 REGENTS OF the UNIVERSITY OF CALIFORNIA, Petitioner,v.Allan BAKKE. No. 76-811. Argued Oct. 12, 1977. Decided June 28, 1978. Syllabus The Medical School of the University of California at Davis (hereinafter Davis) had two admissions programs for the entering class of 100 students—the regular admissions program and the special admissions program. Under the regular procedure, candidates whose overall undergraduate grade point averages fell below 2.5 on a scale of 4.0 were summarily rejected. About one out of six applicants was then given an interview, following which he was rated on a scale of 1 to 100 by each of the committee members (five in 1973 and six in 1974), his rating being based on the interviewers' summaries, his overall grade point average, his science courses grade point average, his Medical College Admissions Test (MCAT) scores, letters of recommendation, extracurricular activities, and other biographical data, all of which resulted in a total "benchmark score." The full admissions committee then made offers of admission on the basis of their review of the applicant's file and his score, considering and acting upon applications as they were received. The committee chairman was responsible for placing names on the waiting list and had discretion to include persons with "special skills." A separate committee, a majority of whom were members of minority groups, operated the special admissions program. The 1973 and 1974 application forms, respectively, as ed candidates whether they wished to be considered as "economically and/or educationally disadvantaged" applicants and members of a "minority group" (blacks, Chicanos, Asians, American Indians). If an applicant of a minority group was found to be "disadvantaged," he would be rated in a manner similar to the one employed by the general admissions committee. Special candidates, however, did not have to meet the 2.5 grade point cutoff and were not ranked against candidates in the general admissions process. About one-fifth of the special applicants were invited for interviews in 1973 and 1974, following which they were given benchmark scores, and the top choices were then given to the general admissions committee, which could reject special candidates for failure to meet course requirements or other specific deficiencies. The special committee continued to recommend candidates until 16 special admission selections had been made. During a four-year period 63 minority students were admitted to Davis under the special program and 44 under the general program. No disadvantaged whites were admitted under the special program, though many applied. Respondent, a white male, applied to Davis in 1973 and 1974, in both years being considered only under the general admissions program. Though he had a 468 out of 500 score in 1973, he was rejected since no general applicants with scores less than 470 were being accepted after respondent's application, which was filed late in the year, had been processed and completed. At that time four special admission slots were still unfilled. In 1974 respondent applied early, and though he had a total score of 549 out of 600, he was again rejected. In neither year was his name placed on the discretionary waiting list. In both years special applicants were admitted with significantly lower scores than respondent's. After his second rejection, respondent filed this action in state court for mandatory, injunctive, and declaratory relief to compel his admission to Davis, alleging that the special admissions program operated to exclude him on the basis of his race in violation of the Equal Protection Clause of the Fourteenth Amendment, a provision of the California Constitution, and § 601 of Title VI of the Civil Rights Act of 1964, which provides, inter alia, that no person shall on the ground of race or color be excluded from participating in any program receiving federal financial assistance. Petitioner cross-claimed for a declaration that its special admissions program was lawful. The trial court found that the special program operated as a racial quota, because minority applicants in that program were rated only against one another, and 16 places in the class of 100 were reserved for them. Declaring that petitioner could not take race into account in making admissions decisions, the program was held to violate the Federal and State Constitutions and Title VI. Respondent's admission was not ordered, however, for lack of proof that he would have been admitted but for the special program. The California Supreme Court, applying a strict-scrutiny standard, concluded that the special admissions program was not the least intrusive means of achieving the goals of the admittedly compelling state interests of integrating the medical profession and increasing the number of doctors willing to serve minority patients. Without passing on the state constitutional or federal statutory grounds the court held that petitioner's special admissions program violated the Equal Protection Clause. Since petitioner could not satisfy its burden of demonstrating that respondent, absent the special program, would not have been admitted, the court ordered his admission to Davis. Held: The judgment below is affirmed insofar as it orders respondent's admission to Davis and invalidates petitioner's special admissions program, but is reversed insofar as it prohibits petitioner from taking race into account as a factor in its future admissions decisions. 18 Cal.3d 34, 132 Cal.Rptr. 680, 553 P.2d 1152, affirmed in part and reversed in part. Mr. Justice POWELL concluded: 1. Title VI proscribes only those racial classifications that would violate the Equal Protection Clause if employed by a State or its agencies. Pp. 281-287. 2. Racial and ethnic classifications of any sort are inherently suspect and call for the most exacting judicial scrutiny. While the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions under some circumstances, petitioner's special admissions program, which forecloses consideration to persons like respondent, is unnecessary to the achievement of this compelling goal and therefore invalid under the Equal Protection Clause. Pp. 287-320. 3. Since petitioner could not satisfy its burden of proving that respondent would not have been admitted even if there had been no special admissions program, he must be admitted. P. 320. Mr. Justice BRENNAN, Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN concluded: 1. Title VI proscribes only those racial classifications that would violate the Equal Protection Clause if employed by a State or its agencies. Pp. 328-355. 2. Racial classifications call for strict judicial scrutiny. Nonetheless, the purpose of overcoming substantial, chronic minority underrepresentation in the medical profession is sufficiently important to justify petitioner's remedial use of race. Thus, the judgment below must be reversed in that it prohibits race from being used as a factor in university admissions. Pp. 355-379. Mr. Justice STEVENS, joined by THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice REHNQUIST, being of the view that whether race can ever be a factor in an admissions policy is not an issue here; that Title VI applies; and that respondent was excluded from Davis in violation of Title VI, concurs in the Court's judgment insofar as it affirms the judgment of the court below ordering respondent admitted to Davis. Pp. 408-421. Archibald Cox, Cambridge, Mass., for petitioner. Sol. Gen. Wade H. McCree, Jr., Washington, D. C., for United States, as amicus curiae, by special leave of Court. Reynold H. Colvin, San Francisco, Cal., for respondent. [Amicus Curiae Information from pages 268-270 intentionally omitted] Mr. Justice POWELL announced the judgment of the Court. This case presents a challenge to the special admissions program of the petitioner, the Medical School of the University of California at Davis, which is designed to assure the admission of a specified number of students from certain minority groups. The Superior Court of California sustained respondent's challenge, holding that petitioner's program violated the California Constitution, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and the Equal Protection Clause of the Fourteenth Amendment. The court enjoined petitioner from considering respondent's race or the race of any other applicant in making admissions decisions. It refused, however, to order respondent's admission to the Medical School, holding that he had not carried his burden of proving that he would have been admitted but for the constitutional and statutory violations. The Supreme Court of California affirmed those portions of the trial court's judgment declaring the special admissions program unlawful and enjoining petitioner from considering the race of any applicant.** It modified that portion of the judgment denying respondent's requested injunction and directed the trial court to order his admission. For the reasons stated in the following opinion, I believe that so much of the judgment of the California court as holds petitioner's special admissions program unlawful and directs that respondent be admitted to the Medical School must be affirmed. For the reasons expressed in a separate opinion, my Brothers THE CHIEF JUSTICE, Mr. Justice STEWART, Mr. Justice REHNQUIST and Mr. Justice STEVENS concur in this judgment. ** Mr. Justice STEVENS views the judgment of the California court as limited to prohibiting the consideration of race only in passing upon Bakke's application. Post, at 408-411. It must be remembered, however, that petitioner here cross-complained in the trial court for a declaratory judgment that its special program was constitutional and it lost. The trial court's judgment that the special pro ram was unlawful was affirmed by the California Supreme Court in an opinion which left no doubt that the reason for its holding was petitioner's use of race in consideration of any candidate's application. Moreover, in explaining the scope of its holding, the court quite clearly stated that petitioner was prohibited from taking race into account in any way in making admissions decisions: "In addition, the University may properly as it in fact does, consider other factors in evaluating an applicant, such as the personal interview, recommendations, character, and matters relating to the needs of the profession and society, such as an applicant's professional goals. In short, the standards for admission employed by the University are not constitutionally infirm except to the extent that they are utilized in a racially discriminatory manner. Disadvantaged applicants of all races must be eligible for sympathetic consideration, and no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race. We reiterate, in view of the dissent's misinterpretation, that we do not compel the University to utilize only 'the highest objective academic credentials' as the criterion for admission." 18 Cal.3d 34, 54-55, 132 Cal.Rptr. 680, 693-694, 553 P.2d 1152, 1166 (1976) (footnote omitted). This explicit statement makes it unreasonable to assume that the reach of the California court's judgment can be limited in the manner suggested by Mr. Justice STEVENS. I also conclude for the reasons stated in the following opinion that the portion of the court's judgment enjoining petitioner from according any consideration to race in its admissions process must be reversed. For reasons expressed in separate opinions, my Brothers Mr. Justice BRENNAN, Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN concur in this judgment. 1 Affirmed in part and reversed in part. I* 2 The Medical School of the University of California at Davis opened in 1968 with an entering class of 50 students. In 1971, the size of the entering class was increased to 100 students, a level at which it remains. No admissions program for disadvantaged or minority students existed when the school opened, and the first class contained three Asians but no blacks, no Mexican-Americans, and no American Indians. Over the next two years, the faculty devised a special admissions program to increase the representation of "disadvantaged" students in each Medical School class.1 The special program consisted of a separate admissions system operating in coordination with the regular admissions process. 3 Under the regular admissions procedure, a candidate could submit his application to the Medical School beginning in July of the year preceding the academic year for which admission was sought. Record 149. Because of the large number of applications,2 the admissions committee screened each one to select candidates for further consideration. Candidates whose overall undergraduate grade point averages fell below 2.5 on a scale of 4.0 were summarily rejected. Id., at 63. About one out of six applicants was invited for a personal interview. Ibid. Following the interviews, each candidate was rated on a scale of 1 to 100 by his interviewers and four other members of the admissions committee. The rating embraced the interviewers' summaries, the candidate's overall grade point average, grade point average in science courses, scores on the Medical College Admissions Test (MCAT), letters of recommendation, extracurricular activities, and other biographical data. Id., at 62. The ratings were added together to arrive at each candidate's "benchmark" score. Since five committee members rated each candidate in 1973, a perfect score was 500; in 1974, six members rated each candidate, so that a perfect score was 600. The full committee then reviewed the file and scores of each applicant and made offers of admission on a "rolling" basis.3 The chairman was responsible for placing names on the waiting list. They were not placed in strict numerical order; instead, the chairman had discretion to include persons with "special skills." Id., at 63-64. 4 The special admissions program operated with a separate committee, a majority of whom were members of minority groups. Id., at 163. On the 1973 application form, candidates were asked to indicate whether they wished to be considered as "economically and/or educationally disadvantaged" applicants; on the 1974 form the question was whether they wished to be considered as members of a "minority group," which the Medical School apparently viewed as "Blacks," "Chicanos," "Asians," and "American Indians." Id., at 65-66, 146, 197, 203-205, 216-218. If these questions were answered affirmatively, the application was forwarded to the special admissions committee. No formal definition of "disadvantaged" was ever produced, id., at 163-164, but the chairman of the special committee screened each application to see whether it reflected economic or educational deprivation.4 Having passed this initial hurdle, the applications then were rated by the special committee in a fashion similar to that used by the general admissions committee, except that special candidates did not have to meet the 2.5 grade point average cutoff applied to regular applicants. About one-fifth of the total number of special applicants were invited for interviews in 1973 and 1974.5 Following each interview, the special committee assigned each special applicant a benchmark score. The special committee then presented its top choices to the general admissions committee. The latter did not rate or compare the special candidates against the general applicants, id., at 388, but could reject recommended special candidates for failure to meet course requirements or other specific deficiencies. Id., at 171-172. The special committee continued to recommend special applicants until a number prescribed by faculty vote were admitted. While the overall class size was still 50, the prescribed number was 8; in 1973 and 1974, when the class size had doubled to 100, the prescribed number of special admissions also doubled, to 16. Id., at 164, 166. 5 From the year of the increase in class size—1971—through 1974, the special program resulted in the admission of 21 black students, 30 Mexican-Americans, and 12 Asians, for a total of 63 minority students. Over the same period, the regular admissions program produced 1 black, 6 Mexican-Americans, and 37 Asians, for a total of 44 minority students.6 Although disadvantaged whites applied to the special program in large numbers, see n. 5, supra, none received an offer of admission through that process. Indeed, in 1974, at least, the special committee explicitly considered only "disadvantaged" special applicants who were members of one of the designated minority groups. Record 171. 6 Allan Bakke is white male who applied to the Davis Medical School in both 1973 and 1974. In both years Bakke's application was considered under the general admissions program, and he received an interview. His 1973 interview was with Dr. Theodore C. West, who considered Bakke "a very desirable applicant to [the] medical school." Id., at 225. Despite a strong benchmark score of 468 out of 500, Bakke was rejected. His application had come late in the year, and no applicants in the general admissions process with scores below 470 were accepted after Bakke's application was completed. Id., at 69. There were four special admissions slots unfilled at that time however, for which Bakke was not considered. Id., at 70. After his 1973 rejection, Bakke wrote to Dr. George H. Lowrey, Associate Dean and Chairman of the Admissions Committee, protesting that the special admissions program operated as a racial and ethnic quota. id., AT 259. 7 Bakke's 1974 application was completed early in the year. Id., at 70. His student interviewer gave him an overall rating of 94, finding him "friendly, well tempered, conscientious and delightful to speak with." Id., at 229. His faculty interviewer was, by coincidence, the same Dr. Lowrey to whom he had written in protest of the special admissions program. Dr. Lowrey found Bakke "rather limited in his approach" to the problems of the medical profession and found disturbing Bakke's "very definite opinions which were based more on his personal viewpoints than upon a study of the total problem." Id., at 226. Dr. Lowrey gave Bakke the lowest of his six ratings, an 86; his total was 549 out of 600. Id., at 230. Again, Bakke's application was rejected. In neither year did the chairman of the admissions committee, Dr. Lowrey, exercise his discretion to place Bakke on the waiting list. Id., at 64. In both years, applicants were admitted under the special program with grade point averages, MCAT scores, and benchmark scores significantly lower than Bakke's.7 8 After the second rejection, Bakke filed the instant suit in the Superior Court of California.8 He sought mandatory, injunctive, and declaratory relief compelling his admission to the Medical School. He alleged that the Medical School's special admissions program operated to exclude him from the school on the basis of his race, in violation of his rights under the Equal Protection Clause of the Fourteenth Amendment,9 Art. I, § 21, of the California Constitution,10 and § 601 of Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d.11 The University cross-complained for a declaration that its special admissions program was lawful. The trial court found that the special program operated as a racial quota, because minority applicants in the special program were rated only against one another. Record 388 and 16 places in the class of 100 were reserved for them. Id., at 295-296. Declaring that the University could not take race into account in making admissions decisions, the trial court held the challenged program violative of the Federal Constitution, the State Constitution, and Title VI. The court refused to order Bakke's admission, however, holding that he had failed to carry his burden of proving that he would have been admitted but for the existence of the special program. 9 Bakke appealed from the portion of the trial court judgment denying him admission, and the University appealed from the decision that its special admissions program was unlawful and the order enjoining it from considering race in the processing of applications. The Supreme Court of California transferred the case directly from the trial court, "because of the importance of the issues involved." 18 Cal.3d 34, 39, 132 Cal.Rptr. 680, 684, 553 P.2d 1152, 1156 (1976). The California court accepted the findings of the trial court with respect to the University's program.12 Because the special admissions program involved a racial classification, the Supreme Court held itself bound to apply strict scrutiny. Id., at 49, 132 Cal.Rptr., at 690, 553 P.2d, at 1162-1163. It then turned to the goals the University presented as justifying the special program. Although the court agreed that the goals of integrating the medical profession and increasing the number of physicians willing to serve members of minority groups were compelling state interests, id., at 53, 132 Cal.Rptr., at 693, 553 P.2d, at 1165, it concluded that the special admissions program was not the least intrusive means of achieving those goals. Without passing on the state constitutional or the federal statutory grounds cited in the trial court's judgment, the California court held that the Equal Protection Clause of the Fourteenth Amendment required that "no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race." Id., at 55, 132 Cal.Rptr., at 694, 553 P.2d, at 1166. 10 Turning to Bakke's appeal, the court ruled that since Bakke had established that the University had discriminated against him on the basis of his race, the burden of proof shifted to the University to demonstrate that he would not have been admitted even in the absence of the special admissions program.13 Id., at 63-64, 132 Cal.Rptr., at 699-700, 553 P.2d, at 1172. The court analogized Bakke's situation to that of a plaintiff under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-17 (1970 ed., Supp. V), see, e. g., Franks v. Bowman Transportation Co., 424 U.S. 747, 772, 96 S.Ct. 1251, 1267, 47 L.Ed.2d 444 (1976). 18 Cal.3d, at 63-64, 132 Cal.Rptr., at 700, 553 P.2d, at 1172. On this basis, the court initially ordered a remand for the purpose of determining whether, under the newly allocated burden of proof, Bakke would have been admitted to either the 1973 or the 1974 entering class in the absence of the special admissions program. App. A to Application for Stay 48. In its petition for rehearing below, however, the University conceded its inability to carry that burden. App. B to Application for Stay A19-A20.14 The California court thereupon amended its opinion to direct that the trial court enter judgment ordering Bakke's admission to the Medical School. 18 Cal.3d, at 64, 132 Cal.Rptr., at 700, 553 P.2d, at 1172. That order was stayed pending review in this Court. 429 U.S. 953, 97 S.Ct. 573, 50 L.Ed.2d 321 (1976). We granted certiorari to consider the important constitutional issue. 429 U.S. 1090, 97 S.Ct. 1098, 51 L.Ed.2d 535 (1977). II 11 In this Court the parties neither briefed nor argued the applicability of Title VI of the Civil Rights Act of 1964. Rather, as had the California court, they focused exclusively upon the validity of the special admissions program under the Equal Protection Clause. Because it was possible, however, that a decision on Title VI might obviate resort to constitutional interpretation, see Ashwander v. TVA, 297 U.S. 288, 346-348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (concurring opinion), we requested supplementary briefing on the statuto y issue. 434 U.S. 900, 98 S.Ct. 293, 54 L.Ed.2d 186 (1977). A. 12 At the outset we face the question whether a right of action for private parties exists under Title VI. Respondent argues that there is a private right of action, invoking the test set forth in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). He contends that the statute creates a federal right in his favor, that legislative history reveals an intent to permit private actions,15 that such actions would further the remedial purposes of the statute, and that enforcement of federal rights under the Civil Rights Act generally is not relegated to the States. In addition, he cites several lower court decisions which have recognized or assumed the existence of a private right of action.16 Petitioner denies the existence of a private right of action, arguing that the sole function of § 601, see n. 11, supra, was to establish a predicate for administrative action under § 602, 78 Stat. 252, 42 U.S.C. § 2000d-1.17 In its view, administrative curtailment of federal funds under that section was the only sanction to be imposed upon recipients that violated § 601. Petitioner also points out that Title VI contains no explicit grant of a private right of action, in contrast to Titles II, III, IV, and VII, of the same statute, 42 U.S.C. §§ 2000a-3(a), 2000b-2, 2000c-8, and 2000e-5(f) (1970 ed. and Supp. V).18 13 We find it unnecessary to resolve this question in the instant case. The question of respondent's right to bring an action under Title VI was neither argued nor decided in either of the courts below, and this Court has been hesitant to review questions not addressed below. McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. 430, 434-435, 60 S.Ct. 670, 672-673, 84 L.Ed. 849 (1940). See also Massachusetts v. Westcott, 431 U.S. 322, 97 S.Ct. 1755, 52 L.Ed.2d 349 (1977); Cardinale v. Louisiana, 394 U.S. 437, 439, 89 S.Ct. 1161, 1163, 22 L.Ed.2d 398 (1969). Cf. Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). We therefore do not address this difficult issue. Similarly, we need not pass upon petitioner's claim that private plaintiffs under Title VI must exhaust administrative remedies. We assume, only for the purposes of this case, that respondent has a right of action under Title VI. See Lau v. Nichols, 414 U.S. 563, 571 n. 2, 94 S.Ct. 786, 790, 39 L.Ed.2d 1 (1974) (STEWART, J., concurring in result). B 14 The language of § 601, 78 Stat. 252, like that of the Equal Protection Clause, is majestic in its sweep: 15 "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 16 The concept of "discrimination," like the phrase "equal protection of the laws," is susceptible of varying interpretations, for as Mr. Justice Holmes declared, "[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372 (1918). We must, therefore, seek whatever aid is available in determining the precise meaning of the statute before us. Train v. Colorado Public Interest Research Group, 426 U.S. 1, 10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976), quoting United States v. American Trucking Assns., 310 U.S. 534, 543-544, 60 S.Ct. 1059, 1063-1064, 84 L.Ed. 1345 (1940). Examination of the voluminous legislative history of Title VI reveals a congressional intent to halt federal funding of entities that violate a prohibition of racial discrimination similar to that of the Constitution. Although isolated statements of various legislators taken out of context, can be marshaled in support of the proposition that § 601 enacted a purely color-blind scheme,19 without regard to the reach of the Equal Protection Clause, these comments must be read against the background of both the problem that Congress was addressing and the broader view of the statute that emerges from a full examination of the legislative debates. 17 The problem confronting Congress was discrimination against Negro citizens at the hands of recipients of federal moneys. Indeed, the color blindness pronouncements cited in the margin at n. 19, generally occur in the midst of extended remarks dealing with the evils of segregation in federally funded programs. Over and over again, proponents of the bill detailed the plight of Negroes seeking equal treatment in such programs.20 There simply was no reason for Congress to consider the validity of hypothetical preferences that might be accorded minority citizens; the legislators were dealing with the real and pressing problem of how to guarantee those citizens equal treatment. 18 In addressing that problem, supporters of Title VI repeatedly declared that the bill enacted constitutional principles. For example, Representative Celler, the Chairman of the House Judiciary Committee and floor manager of the legislation in the House, emphasized this in introducing the bill: 19 "The bill would offer assurance that hospitals financed by Federal money would not deny adequate care to Negroes. It would prevent abuse of food distribution programs whereby Negroes have been known to be denied food surplus supplies when white persons were given such food. It would assure Negroes the benefits now accorded only white students in programs of high[er] education financed by Federal funds. It would, in short, assure the existing right to equal treatment in the enjoyment of Federal funds. It would not destroy any rights of private property or freedom of association." 110 Cong.Rec. 1519 (1964) (emphasis added). 20 Other sponsors shared Representative Celler's view that Title VI embodied constitutional principles.21 21 In the Senate, Senator Humphrey declared that the purpose of Title VI was "to insure that Federal funds are spent in accordance with the Constitution and the moral sense of the Nation." Id., at 6544. Senator Ribicoff agreed that Title VI embraced the constitutional standard: "Basically, there is a constitutional restriction against discrimination in the use of federal funds; and title VI simply spells out the procedure to be used in enforcing that restriction." Id., at 13333. Other Senators expressed similar views.22 22 Further evidence of the incorporation of a constitutional standard into Title VI appears in the repeated refusals of the legislation's supporters precisely to define the term "discrimination." Opponents sharply criticized this failure,23 but proponents of the bill merely replied that the meaning of "discrimination" would be made clear by reference to the Constitution or other existing law. For example, Senator Humphrey noted the relevance of the Constitution: 23 "As I have said, the bill has a simple purpose. That purpose is to give fellow citizens—Negroes—the same rights and opportunities that white people take for granted. This is no more than what was preached by the prophets, and by Christ Himself. It is no more than what our Constitution guarantees." Id., at 6553.24 24 In view of the clear legislative intent, Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment. III A. 25 Petitioner does not deny that decisions based on race or ethnic origin by faculties and administrations of state universities are reviewable under the Fourteenth Amendment. See, e. g., Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208 (1938); Sipuel v. Board of Regents, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247 (1948); Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149 (1950). For his part, respondent does not argue that all racial or ethnic classifications are per se invalid. See, e. g., Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944); Lee v. Washington, 390 U.S. 333, 334, 88 S.Ct. 994, 995, 19 L.Ed.2d 1212 (1968) (Black, Harlan, and Stewart, JJ., concurring); United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). The parties do disagree as to the level of judicial scrutiny to be applied to the special admissions program. Petitioner argues that the court below erred in applying strict scrutiny, as this inexact term has been applied in our cases. That level of review, petitioner asserts, should be reserved for classifications that disadvantage "discrete and insular minorities." SeeUnited States v. Carolene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783, 82 L.Ed. 1234 (1938). Respondent, on the other hand, contends that the California court correctly rejected the notion that the degree of judicial scrutiny accorded a particular racial or ethnic classification hinges upon membership in a discrete and insular minority and duly recognized that the "rights established [by the Fourteenth Amendment] are personal rights." Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 846, 92 L.Ed. 1161 (1948). 26 En route to this crucial battle over the scope of judicial review,25 the parties fight a sharp preliminary action over the proper characterization of the special admissions program. Petitioner prefers to view it as establishing a "goal" of minority representation in the Medical School. Respondent, echoing the courts below, labels it a racial quota.26 27 This semantic distinction is beside the point: The special admissions program is undeniably a classification based on race and ethnic background. To the extent that there existed a pool of at least minimally qualified minority applicants to fill the 16 special admissions seats, white applicants could compete only for 84 seats in the entering class, rather than the 100 open to minority applicants. Whether this limitation is described as a quota or a goal, it is a line drawn on the basis of race and ethnic status.27 28 The guarantees of the Fourteenth Amendment extend to all persons. Its language is explicit: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." It is settled beyond question that the "rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights." Shelley v. Kraemer, supra, at 22, 68 S.Ct., at 846. Accord,Missouri ex rel. Gaines v. Canada, supra, 305 U.S., at 351, 57 S.Ct., at 237; McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151, 161-162, 35 S.Ct. 69, 71, 59 L.Ed. 169 (1914). The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal. 29 Nevertheless, petitioner argues that the court below erred in applying strict scrutiny to the special admissions program because white males, such as respondent, are not a "discrete and insular minority" requiring extraordinary protection from the majoritarian political process. Carolene Products Co., supra, 304 U.S., at 152-153 n. 4, 58 S.Ct., at 783-784. This rationale, however, has never been invoked in our decisions as a prerequisite to subjecting racial or ethnic distinctions to strict scrutiny. Nor has this Court held that discreteness and insularity constitute necessary preconditions to a holding that a particular classification is invidious.28 See, e. g., Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942); Carrington v. Rash, 380 U.S. 89, 94-97, 85 S.Ct. 775, 779-780, 13 L.Ed.2d 675 (1965). These characteristics may be relevant in deciding whether or not to add new types of c assifications to the list of "suspect" categories or whether a particular classification survives close examination. See, e. g., Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976) (age); San Antonio Independent School Dist. v. Rodriquez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1293, 36 L.Ed.2d 16 (1973) (wealth); Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971) (aliens). Racial and ethnic classifications, however, are subject to stringent examination without regard to these additional characteristics. We declared as much in the first cases explicitly to recognize racial distinctions as suspect: 30 "Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi, 320 U.S., at 100, 63 S.Ct., at 1385. 31 "[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny." Korematsu, 323 U.S., at 216, 65 S.Ct., at 194. 32 The Court has never questioned the validity of those pronouncements. Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination. B 33 This perception of racial and ethnic distinctions is rooted in our Nation's constitutional and demographic history. The Court's initial view of the Fourteenth Amendment was that its "one pervading purpose" was "the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised dominion over him." Slaughter-House Cases, 16 Wall. 36, 71, 21 L.Ed. 394 (1873). The Equal Protection Clause, however, was "[v]irtually strangled in infancy by post-civil-war judicial reactionism."29 It was relegated to decades of relative desuetude while the Due Process Clause of the Fourteenth Amendment, after a short germinal period, flourished as a cornerstone in the Court's defense of property and liberty of contract. See, e. g., Mugler v. Kansas, 123 U.S. 623, 661, 8 S.Ct. 273, 297, 31 L.Ed. 205 (1887); Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832 (1897); Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). In that cause, the Fourteenth Amendment's "one pervading purpose" was displaced. See, e. g., Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). It was only as the era of substantive due process came to a close, see, e. g., Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937), that the Equal Protection Clause began to attain a genuine measure of vitality, see, e. g., United States v. Carolene Products, 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938); Skinner v. Oklahoma ex rel. Williamson, supra. 34 By that time it was no longer possible to peg the guarantees of the Four eenth Amendment to the struggle for equality of one racial minority. During the dormancy of the Equal Protection Clause, the United States had become a Nation of minorities.30 Each had to struggle31—and to some extent struggles still32—to overcome the prejudices not of a monolithic majority, but of a "majority" composed of various minority groups of whom it was said perhaps unfairly in many cases—that a shared characteristic was a willingness to disadvantage other groups.33 As the Nation filled with the stock of many lands, the reach of the Clause was gradually extended to all ethnic groups seeking protection from official discrimination. See Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1880) (Celtic Irishmen) (dictum); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (Chinese); Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131 (1915) (Austrian resident aliens); Korematsu, supra (Japanese); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954) (Mexican-Americans). The guarantees of equal protection, said the Court in Yick Wo, "are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws." 118 U.S., at 369, 6 S.Ct., at 1070. 35 Although many of the Framers of the Fourteenth Amendment conceived of its primary function as bridging the vast distance between members of the Negro race and the white "majority," Slaughter-House Cases, supra, the Amendment itself was framed in universal terms, without reference to color, ethnic origin, or condition of prior servitude. As this Court recently remarked in interpreting the 1866 Civil Rights Act to extend to claims of racial discrimination against white persons, "the 39th Congress was intent upon establishing in the federal law a broader principle than would have been necessary simply to meet the particular and immediate plight of the newly freed Negro slaves." McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 296, 96 S.Ct. 2574, 2586, 49 L.Ed.2d 493 (1976). And that legislation was specifically broadened in 1870 to ensure that "all persons," not merely "citizens," would enjoy equal rights under the law. See Runyon v. McCrary, 427 U.S. 160, 192-202, 96 S.Ct. 2586, 2605-2609, 49 L.Ed.2d 415 (1976) (WHITE, J., dissenting). Indeed, it is not unlikely that among the Framers were many who would have applauded a reading of the Equal Protection Clause that states a principle of universal application and is responsive to the racial, ethnic, and cultural diversity of the Nation. See, e. g., Cong.Globe, 39th Cong., 1st Sess., 1056 (1866) (remarks of Rep. Niblack); id., at 2891-2892 (remarks of Sen. Conness); id., 40th Cong., 2d Sess., 883 (1868) (remarks of Sen. Howe) (Fourteenth Amendment "protect[s] classes from class legislation"). See also Bickel, The Original Understanding and the Segregation Decision, 69 Harv.L.Rev. 1, 60-63 (1955). 36 Over the past 30 years, this Court has embarked upon the crucial mission of interpreting the Equ l Protection Clause with the view of assuring to all persons "the protection of equal laws," Yick Wo, supra, 118 U.S., at 369, 6 S.Ct., at 1070, in a Nation confronting a legacy of slavery and racial discrimination. See, e. g., Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976). Because the landmark decisions in this area arose in response to the continued exclusion of Negroes from the mainstream of American society, they could be characterized as involving discrimination by the "majority" white race against the Negro minority. But they need not be read as depending upon that characterization for their results. It suffices to say that "[o]ver the years, this Court has consistently repudiated '[d]istinctions between citizens solely because of their ancestry' as being 'odious to a free people whose institutions are founded upon the doctrine of equality.' " Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967), quoting Hirabayashi, 320 U.S., at 100, 63 S.Ct., at 1385. 37 Petitioner urges us to adopt for the first time a more restrictive view of the Equal Protection Clause and hold that discrimination against members of the white "majority" cannot be suspect if its purpose can be characterized as "benign."34 The clock of our liberties, however, cannot be turned back to 1868. Brown v. Board of Education, supra, 347 U.S., at 492, 74 S.Ct., at 690; accord, Loving v. Virginia, supra, 388 U.S., at 9, 87 S.Ct., at 1822. It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others.35 "The Fourteenth Amendment is not directed solely against discrimination due to a 'two-class theory'—that is, based upon differences between 'white' and Negro." Hernandez, 347 U.S., at 478, 74 S.Ct., at 670. 38 Once the artificial line of a "two-class theory" of the Fourteenth Amendment is put aside, the difficulties entailed in varying the level of judicial review according to a perceived "preferred" status of a particular racial or ethnic minority are intractable. The concepts of "majority" and "minority" necessarily reflect temporary arrangements and political judgments. As observed above, the white "majority" itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals. Not all of these groups can receive preferential treatment and corresponding judicial tolerance of distinctions drawn in terms of race and nationality, for then the only "majority" left would be a new minority of white Anglo-Saxon Protestants. There is no principled basis for deciding which groups would merit "heightened judicial solicitude" and which would not.36 Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications at the expense of individuals belonging to other groups. Those classifications would be free from exacting judicial scrutiny. As these preferences began to have their desired effect, and the consequences of past discrimination were undone, new judicial rankings would be necessary. The kind of variable sociological and political analysis necessary to produce such rankings simply does not lie within the judicial competence—even if they otherwise were politically feasible and socially desirable.37 39 Moreover, there are serious problems of justice connected with the idea of preference itself. First, it may not always be clear that a so-called preference is in fact benign. Courts may be asked to validate burdens imposed upon individual members of a particular group in order to advance the group's general interest. See United Jewish Organizations v. Carey, 430 U.S., at 172-173, 97 S.Ct., at 1013. (BRENNAN, J., concurring in part). Nothing in the Constitution supports the notion that individuals may be asked to suffer otherwise impermissible burdens in order to enhance the societal standing of their ethnic groups. Second, preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth. See DeFunis v. Odegaard, 416 U.S. 312, 343, 94 S.Ct. 1704, 1719, 40 L.Ed.2d 164 (1974) (Douglas, J., dissenting). Third, there is a measure of inequity in forcing innocent persons in respondent's position to bear the burdens of redressing grievances not of their making. 40 By hitching the meaning of the Equal Protection Clause to these transitory considerations, we would be holding, as a constitutional principle, that judicial scrutiny of classifications touching on racial and ethnic background may vary with the ebb and flow of political forces. Disparate constitutional tolerance of such classifications well may serve to exacerbate racial and ethnic antagonisms rather than alleviate them. United Jewish Organizations, supra, 430 U.S., at 173-174, 97 S.Ct., at 1013-1014 (BRENNAN, J., concurring in part). Also, the mutability of a constitutional principle, based upon shifting political and social judgments, undermines the chances for consistent application of the Constitution from one generation to the next, a critical feature of its coherent interpretation. Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 650-651, 15 S.Ct. 673, 716, 39 L.Ed. 759 (1895) (White, J., dissenting). In expounding the Constitution, the Court's role is to discern "principles sufficiently absolute to give them roots throughout the community and continuity over significant periods of time, and to lift them above the level of the pragmatic political judgments of a particular time and place." A. Cox, The Role of the Supreme Court in American Government 114 (1976). 41 If it is the individual who is entitled to judicial protection against classifications based upon his racial or ethnic background because such distinctions impinge upon personal rights, rather than the individual only because of his membership in a particular group, then constitutional standards may be applied consistently. Political judgments regarding the necessity for the particular classification may be weighed in the constitutional balance, Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), but the standard of justification will remain constant. This is as it should be, since those political judgments are the product of rough compromise struck by contending groups within the democratic process.38 When they touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest. The Constitution guarantees that right to every person regardless of his background. Shelley v. Kraemer, 334 U.S., at 22, 68 S.Ct., at 846; Missouri ex rel. Gaines v. Canada, 305 U.S., at 351, 59 S.Ct., at 237. C 42 Petitioner contends that on several occasions this Court has approved preferential classifications without applying the most exacting scrutiny. Most of the cases upon which petitioner relies are drawn from three areas: school desegregation, employment discrimination, and sex discrimination. Each of the cases cited presented a situation materially different from the facts of this case. 43 The school desegregation cases are inapposite. Each involved remedies for clearly determined constitutional violations. E. g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); McDaniel v. Barresi, 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 582 (1971); Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). Racial classifications thus were designed as remedies for the vindication of constitutional entitlement.39 Moreover, the scope of the remedies was not permitted to exceed the extent of the violations. E. g., Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977); Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974); see Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976). See also Austin Independent School Dist. v. United States, 429 U.S. 990, 991-995, 97 S.Ct. 517-519, 50 L.Ed.2d 603 (1976) (POWELL, J., concurring). Here, there was no judicial determination of constitutional violation as a predicate for the formulation of a remedial classification. 44 The employment discrimination cases also do not advance petitioner's cause. For example, in Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), we approved a retroactive award of seniority to a class of Negro truckdrivers who had been the victims of discrimination—not just by society at large, but by the respondent in that case. While this relief imposed some burdens on other employees, it was held necessary " 'to make [the victims] whole for injuries suffered on account of unlawful employment discrimination.' " Id., at 763, 96 S.Ct., at 1264, quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975). The Courts of Appeals have fashioned various types of racial preferences as remedies for constitutional or statutory violations resulting in identified, race-based injuries to individuals held entitled to the preference. E. g., Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333 (CA2 1973); Carter v. Gallagher, 452 F.2d 315 (CA8 1972), modified on rehearing en banc, id., at 327. Such preferences also have been upheld where a legislative or administrative body charged with the responsibility made determinations of past discrimination by the industries affected, and fashioned remedies deemed appropriate to rectify the discrimination. E. g., Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159 (C.A.3), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971);40 Associated General Contractors of Massachusetts, Inc. v. Altshuler, 490 F.2d 9 (C.A.1 1973), cert. denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974); cf. Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). But we have never approved preferential classifications in the absence of proved constitutional or statutory violations.41 45 Nor is petitioner's view as to the applicable standard supported by the fact that gender-based classifications are not subjected to this level of scrutiny. E.G., Califano v. Webster, 430 U.S. 313, 316-317, 97 S.Ct. 1192, 1194-1195, 51 L.Ed.2d 360 (1977); Craig v. Boren, 429 U.S. 190, 211, 97 S.Ct. 451, 464, 50 L.Ed.2d 397 (1976) (POWELL, J., concurring). Gender-based distinctions are less likely to create the analytical and practical problems present in preferential programs premised on racial or ethnic criteria. With respect to gender there are only two possible classifications. The incidence of the burdens imposed by preferential classifications is clear. There are no rival groups which can claim that they, too, are entitled to preferential treatment. Classwide questions as to the group suffering previous injury and groups which fairly can be burdened are relatively manageable for reviewing courts. See, e. g., Califano v. Goldfarb, 430 U.S. 199, 212-217, 97 S.Ct. 1021, 1029-1032, 51 L.Ed.2d 270 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636, 645, 95 S.Ct. 1225, 1231, 43 L.Ed.2d 514 (1975). The resolution of these same questions in the context of racial and ethnic preferences presents far more complex and intractable problems than gender-based classifications. More importantly, the perception of racial classifications as inherently odious stems from a lengthy and tragic history that gender-based classifications do not share. In sum, the Court has never viewed such classification as inherently suspect or as comparable to racial or ethnic classifications for the purpose of equal protection analysis. 46 Petitioner also cites Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), in support of the proposition that discrimination favoring racial or ethnic minorities has received judicial approval without the exacting inquiry ordinarily accorded "suspect" classifications. In Lau, we held that the failure of the San Francisco school system to provide remedial English instruction for some 1,800 students of oriental ancestry who spoke no English amounted to a violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the regulations promulgated thereunder. Those regulations required remedial instruction where inability to understand English excluded children of foreign ancestry from participation in educational programs. 414 U.S., at 568, 94 S.Ct., at 789. Because we found that the students in Lau were denied "a meaningful opportunity to participate in the educational program," ibid., we remanded for the fashioning of a remedial order. 47 Lau provides little support for petitioner's argument. The decision rested solely on the statute, which had been construed by the responsible administrative agency to reach educational practices "which have the effect of subjecting individuals to discrimination," ibid. We stated: "Under these state-imposed standards there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education." Id., at 566, 94 S.Ct., at 788. Moreover, the "preference" approved did not result in the denial of the relevant benefit—"meaningful opportunity to participate in the educational program"—to anyone else. No other student was deprived by that preference of the ability to participate in San Francisco's school system, and the applicable regulations required similar assistance for all students who suffered similar linguistic deficiencies. Id., at 570-571, 94 S.Ct., at 790 (STEWART, J., concurring in result). 48 In a similar vein,42 petitioner contends that our recent decision in United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977), indicates a willingness to approve racial classifications designed to benefit certain minorities, without denominating the classifications as "suspect." The State of New York had redrawn its reapportionment plan to meet objections of the Department of Justice under § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1970 ed., Supp. V). Specifically, voting districts were redrawn to enhance the electoral power of certain "nonwhite" voters found to have been the victims of unlawful "dilution" under the original reapportionment plan. United Jewish Organizations, like Lau, properly is viewed as a case in which the remedy for an administrative finding of discrimination encompassed measures to improve the previously disadvantaged group's ability to participate, without excluding individuals belonging to any other group from enjoyment of the relevant opportunity—meaningful participation in the electoral process. 49 In this case, unlike Lau and United Jewish Organizations, there has been no determination by the legislature or a responsible administrative agency that the University engaged in a discriminatory practice requiring remedial efforts. Moreover, the operation of petitioner's special admissions program is quite different from the remedial measures approved in those cases. It prefers the designated minority groups at the expense of other individuals who are totally foreclosed from competition for the 16 special admissions seats in every Medical School class. Because of that foreclosure, some individuals are excluded from enjoyment of a state-provided benefit—admission to the Medical School—they otherwise would receive. When a classification denies an individual opportunities or benefits enjoyed by others solely because of his race or ethnic background, it must be regarded as suspect. E. g., McLaurin v. Oklahoma State Regents, 339 U.S., at 641-642, 70 S.Ct., at 853-854. IV 50 We have held that in "order to justify the use of a suspect classification, a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is 'necessary . . . to the accomplishment' of its purpose or the safeguarding of its interest." In re Griffiths, 413 U.S. 717, 721-722, 93 S.Ct. 2851, 2855, 37 L.Ed.2d 910 (1973) (footnotes omitted); Loving v. Virginia, 388 U.S., at 11, 87 S.Ct., at 1823; McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222 (1964). The special admissions program purports to serve the purposes of: (i) "reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession," Brief for Petitioner 32; (ii) countering the effects of societal discrimination;43 (iii) increasing the number of physicians who will practice in communities currently underserved; and (iv) obtaining the educational benefits that flow from an ethnically diverse student body. It is necessary to decide which, if any, of these purposes is substantial enough to support the use of a suspect classification. 51 * If petitioner's purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids. E. g., Loving v. Virginia, supra, 388 U.S., at 11, 87 S.Ct., at 1823; McLaughlin v. Florida, supra, 379 U.S., at 196, 85 S.Ct., at 290; Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). B 52 The State certainly has a legitimate and substantial interest in ameliorating, or eliminating where feasible, the disabling effects of identified discrimination. The line of school desegregation cases, commencing with Brown, attests to the importance of this state goal and the commitment of the judiciary to affirm all lawful means toward its attainment. In the school cases, the States were required by court order to redress the wrongs worked by specific instances of racial discrimination. That goal was far more focused than the remedying of the effects of "societal discrimination," an amorphous concept of injury that may be ageless in its reach into the past. 53 We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations. See, e. g., Teamsters v. United States, 431 U.S. 324, 367-376, 97 S.Ct. 1843, 1870-1875, 52 L.Ed.2d 396 (1977); United Jewish Organizations, 430 U.S., at 155-156, 97 S.Ct., at 1004-1005; South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803, 808, 15 L.Ed.2d 769 (1966). After such findings have been made, the governmental interest in preferring members of the injured groups at the expense of others is substantial, since the legal rights of the victims must be vindicated. In such a case, the extent of the injury and the consequent remedy will have been judicially, legislatively, or administratively defined. Also, the remedial action usually remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit. Without such findings of constitutional or statutory violations,44 it cannot be said that the government has any greater interest in helping one individual than in refraining from harming another. Thus, the government has no compelling justification for inflicting such harm. 54 Petitioner does not purport to have made, and is in no position to make, such findings. Its broad mission is education, not the formulation of any legislative policy or the adjudication of particular claims of illegality. For reasons similar to those stated in Part III of this opinion, isolated segments of our vast governmental structures are not competent to make those decisions, at least in the absence of legislative mandates and legislatively determined criteria.45 Cf. Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976); n. 41, supra. Before relying upon these sorts of findings in establishing a racial classification, a governmental body must have the authority and capability to establish, in the record, that the classification is responsive to identified discrimination. See, e. g., Califano v. Webster, 430 U.S., at 316-321, 97 S.Ct., at 1194-1197; Califano v. Goldfarb, 430 U.S., at 212-217, 97 S.Ct., at 1029-1032. Lacking this capability, petitioner has not carried its burden of justification on this issue. 55 Hence, the purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of "societal discrimination" does not justify a classification that imposes disadvantages upon persons like respondent, who bear no responsibility or whatever harm the beneficiaries of the special admissions program are thought to have suffered. To hold otherwise would be to convert a remedy heretofore reserved for violations of legal rights into a privilege that all institutions throughout the Nation could grant at their pleasure to whatever groups are perceived as victims of societal discrimination. That is a step we have never approved. Cf. Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976). C 56 Petitioner identifies, as another purpose of its program, improving the delivery of health-care services to communities currently underserved. It may be assumed that in some situations a State's interest in facilitating the health care of its citizens is sufficiently compelling to support the use of a suspect classification. But there is virtually no evidence in the record indicating that petitioner's special admissions program is either needed or geared to promote that goal.46 The court below addressed this failure of proof: 57 "The University concedes it cannot assure that minority doctors who entered under the program, all of whom expressed an 'interest' in practicing in a disadvantaged community, will actually do so. It may be correct to assume that some of them will carry out this intention, and that it is more likely they will practice in minority communities than the average white doctor. (See Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role (1975) 42 U.Chi.L.Rev. 653, 688). Nevertheless, there are more precise and reliable ways to identify applicants who are genuinely interested in the medical problems of minorities than by race. An applicant of whatever race who has demonstrated his concern for disadvantaged minorities in the past and who declares that practice in such a community is his primary professional goal would be more likely to contribute to alleviation of the medical shortage than one who is chosen entirely on the basis of race and disadvantage. In short, there is no empirical data to demonstrate that any one race is more selflessly socially oriented or by contrast that another is more selfishly acquisitive." 18 Cal.3d, at 56, 132 Cal.Rptr., at 695, 553 P.2d, at 1167. 58 Petitioner simply has not carried its burden of demonstrating that it must prefer members of particular ethnic groups over all other individuals in order to promote better health-care delivery to deprived citizens. Indeed, petitioner has not shown that its preferential classification is likely to have any significant effect on the problem.47 D 59 The fourth goal asserted by petitioner is the attainment of a diverse student body. This clearly is a constitutionally permissible goal for an institution of higher education. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body. Mr. Justice Frankfurter summarized the "four essential freedoms" that constitute academic freedom: 60 " 'It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail "the four essential freedoms" of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.' " Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1218, 1 L.Ed.2d 1311 (1957) (concurring in result). 61 Our national commitment to the safeguarding of these freedoms within university communities was emphasized in Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967): 62 "Our Nation is deeply committed to safeguarding academic freedom which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment . . . . The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection.' United States v. Associated Press, D.C., 52 F.Supp. 362, 372." 63 The atmosphere of "speculation, experiment and creation"—so essential to the quality of higher education—is widely believed to be promoted by a diverse student body.48 As the Court noted in Keyishian, it is not too much to say that the "nation's future depends upon leaders trained through wide exposure" to the ideas and mores of students as diverse as this Nation of many peoples. 64 Thus, in arguing that its universities must be accorded the right to select those students who will contribute the most to the "robust exchange of ideas," petitioner invokes a countervailing constitutional interest, that of the First Amendment. In this light, petitioner must be viewed as seeking to achieve a goal that is of paramount importance in the fulfillment of its mission. 65 It may be argued that there is greater force to these views at the undergraduate level than in a medical school where the training is centered primarily on professional competency. But even at the graduate level, our tradition and experience lend support to the view that the contribution of diversity is substantial. In Sweatt v. Painter, 339 U.S., at 634, 70 S.Ct., at 850, the Court made a similar point with specific reference to legal education: 66 "The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned." 67 Physicians serve a heterogeneous population. An otherwise qualified medical student with a particular background—whether it be ethnic, geographic, culturally advantaged or disadvantaged—may bring to a professional school of medicine experiences, outlooks, and ideas that enrich the training of its student body and better equip its graduates to render with understanding their vital service to humanity.49 68 Ethnic diversity, however, is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body. Although a university must have wide discretion in making the sensitive judgments as to who should be admitted, constitutional limitations protecting individual rights may not be disregarded. Respondent urges—and the courts below have held—that petitioner's dual admissions program is a racial classification that impermissibly infringes his rights under the Fourteenth Amendment. As the interest of diversity is compelling in the context of a university's admissions program, the question remains whether the program's racial classification is necessary to promote this interest. In Re Griffiths, 413 u.s., at 721-722, 93 s.ct., at 2854-2855. V A. 69 It may be assumed that the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups would contribute to the attainment of considerable ethnic diversity in the student body. But petitioner's argument that this is the only effective means of serving the interest of diversity is seriously flawed. In a most fundamental sense the argument misconceives the nature of the state interest that would justify consideration of race or ethnic background. It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Petitioner's special admissions program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity.50 70 Nor would the state interest in genuine diversity be served by expanding petitioner's two-track system into a multitrack program with a prescribed number of seats set aside for each identifiable category of applicants. Indeed, it is inconceivable that a university would thus pursue the logic of petitioner's two-track program to the illogical end of insulating each category of applicants with certain desired qualifications from competition with all other applicants. 71 The experience of other university admissions programs, which take race into account in achieving the educational diversity valued by the First Amendment, demonstrates that the assignment of a fixed number of places to a minority group is not a necessary means toward that end. An illuminating example is found in the Harvard College program: 72 "In recent years Harvard College has expanded th concept of diversity to include students from disadvantaged economic, racial and ethnic groups. Harvard College now recruits not only Californians or Louisianans but also blacks and Chicanos and other minority students. . . . 73 "In practice, this new definition of diversity has meant that race has been a factor in some admission decisions. When the Committee on Admissions reviews the large middle group of applicants who are 'admissible' and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. [See Appendix hereto.] . . . 74 "In Harvard College admissions the Committee has not set target-quotas for the number of blacks, or of musicians, football players, physicists or Californians to be admitted in a given year. . . . But that awareness [of the necessity of including more than a token number of black students] does not mean that the Committee sets a minimum number of blacks or of people from west of the Mississippi who are to be admitted. It means only that in choosing among thousands of applicants who are not only 'admissible' academically but have other strong qualities, the Committee, with a number of criteria in mind, pays some attention to distribution among many types and categories of students." App. to Brief for Columbia University, Harvard University, Stanford University, and the University of Pennsylvania, as Amici Curiae 2-3. 75 In such an admissions program,51 race or ethnic background may be deemed a "plus" in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats. The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important. In short, an admissions program operated in this way is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight. Indeed, the weight attributed to a particular quality may vary from year to year depending upon the "mix" both of the student body and the applicants for the incoming class. 76 This kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate eceiving a "plus" on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment.52 77 It has been suggested that an admissions program which considers race only as one factor is simply a subtle and more sophisticated—but no less effective—means of according racial preference than the Davis program. A facial intent to discriminate, however, is evident in petitioner's preference program and not denied in this case. No such facial infirmity exists in an admissions program where race or ethnic background is simply one element—to be weighed fairly against other elements—in the selection process. "A boundary line," as Mr. Justice Frankfurter remarked in another connection, "is none the worse for being narrow." McLeod v. Dilworth, 322 U.S. 327, 329, 64 S.Ct. 1023, 1025, 88 L.Ed. 1304 (1944). And a court would not assume that a university, professing to employ a facially nondiscriminatory admissions policy, would operate it as a cover for the functional equivalent of a quota system. In short, good faith would be presumed in the absence of a showing to the contrary in the manner permitted by our cases. See e. g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).53 B 78 In summary, it is evident that the Davis special admissions program involves the use of an explicit racial classification never before countenanced by this Court. It tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class. No matter how strong their qualifications, quantitative and extracurricular, including their own potential for contribution to educatio al diversity, they are never afforded the chance to compete with applicants from the preferred groups for the special admissions seats. At the same time, the preferred applicants have the opportunity to compete for every seat in the class. 79 The fatal flaw in petitioner's preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment. Shelley v. Kraemer, 334 U.S., at 22, 68 S.Ct., at 846. Such rights are not absolute. But when a State's distribution of benefits or imposition of burdens hinges on ancestry or the color of a person's skin, that individual is entitled to a demonstration that the challenged classification is necessary to promote a substantial state interest. Petitioner has failed to carry this burden. For this reason, that portion of the California court's judgment holding petitioner's special admissions program invalid under the Fourteenth Amendment must be affirmed. C 80 In enjoining petitioner from ever considering the race of any applicant, however, the courts below failed to recognize that the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin. For this reason, so much of the California court's judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed. VI 81 With respect to respondent's entitlement to an injunction directing his admission to the Medical School, petitioner has conceded that it could not carry its burden of proving that, but for the existence of its unlawful special admissions program, respondent still would not have been admitted. Hence, respondent is entitled to the injunction, and that portion of the judgment must be affirmed.54 APPENDIX TO OPINION OF POWELL, J. Harvard College Admissions Program55 82 For the past 30 years Harvard College has received each year applications for admission that greatly exceed the number of places in the freshman class. The number of applicants who are deemed to be not "qualified" is comparatively small. The vast majority of applicants demonstrate through test scores, high school records and teachers' recommendations that they have the academic ability to do adequate work at Harvard, and perhaps to do it with distinction. Faced with the dilemma of choosing among a large number of "qualified" candidates, the Committee on Admissions could use the single criterion of scholarly excellence and attempt to determine who among the candidates were ikely to perform best academically. But for the past 30 years the Committee on Admissions has never adopted this approach. The belief has been that if scholarly excellence were the sole or even predominant criterion, Harvard College would lose a great deal of its vitality and intellectual excellence and that the quality of the educational experience offered to all students would suffer. Final Report of W. J. Bender, Chairman of the Admission and Scholarship Committee and Dean of Admissions and Financial Aid, pp. 20 et seq. (Cambridge, 1960). Consequently, after selecting those students whose intellectual potential will seem extraordinary to the faculty—perhaps 150 or so out of an entering class of over 1,100 the Committee seeks— 83 variety in making its choices. This has seemed important . . . in part because it adds a critical ingredient to the effectiveness of the educational experience [in Harvard College]. . . . The effectiveness of our students' educational experience has seemed to the Committee to be affected as importantly by a wide variety of interests, talents, backgrounds and career goals as it is by a fine faculty and our libraries, laboratories and housing arrangements. (Dean of Admissions Fred L. Glimp, Final Report to the Faculty of Arts and Sciences, 65 Official Register of Harvard University No. 25, 93, 104-105 (1968) (emphasis supplied). 84 The belief that diversity adds an essential ingredient to the educational process has long been a tenet of Harvard College admissions. Fifteen or twenty years ago, however, diversity meant students from California, New York, and Massachusetts; city dwellers and farm boys; violinists, painters and football players; biologists, historians and classicists; potential stockbrokers, academics and politicians. The result was that very few ethnic or racial minorities attended Harvard College. In recent years Harvard College has expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups. Harvard College now recruits not only Californians or Louisianans but also blacks and Chicanos and other minority students. Contemporary conditions in the United States mean that if Harvard College is to continue to offer a first-rate education to its students, minority representation in the undergraduate body cannot be ignored by the Committee on Admissions. 85 In practice, this new definition of diversity has meant that race has been a factor in some admission decisions. When the Committee on Admissions reviews the large middle group of applicants who are "admissible" and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. The quality of the educational experience of all the students in Harvard College depends in part on these differences in the background and outlook that students bring with them. 86 In Harvard College admissions the Committee has not set target-quotas for the number of blacks, or of musicians, football players, physicists or Californians to be admitted in a given year. At the same time the Committee is aware that if Harvard College is to provide a truly heterogen[e]ous environment that reflects the rich diversity of the United States, it cannot be provided without some attention to numbers. It would not make sense, for example, to have 10 or 20 students out of 1,100 whose homes are west of the Mississippi. Comparably, 10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States. Their small numbers might also create a sense of isolation among the black students themselves and thus m ke it more difficult for them to develop and achieve their potential. Consequently, when making its decisions, the Committee on Admissions is aware that there is some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted. But that awareness does not mean that the Committee sets a minimum number of blacks or of people from west of the Mississippi who are to be admitted. It means only that in choosing among thousands of applicants who are not only "admissible" academically but have other strong qualities, the Committee, with a number of criteria in mind, pays some attention to distribution among many types and categories of students. 87 The further refinements sometimes required help to illustrate the kind of significance attached to race. The Admissions Committee, with only a few places left to fill, might find itself forced to choose between A, the child of a successful black physician in an academic community with promise of superior academic performance, and B, a black who grew up in an inner-city ghetto of semi-literate parents whose academic achievement was lower but who had demonstrated energy and leadership as well as an apparently abiding interest in black power. If a good number of black students much like A but few like B had already been admitted, the Committee might prefer B; and vice versa. If C, a white student with extraordinary artistic talent, were also seeking one of the remaining places, his unique quality might give him an edge over both A and B. Thus, the critical criteria are often individual qualities or experience not dependent upon race but sometimes associated with it. 88 Opinion of Mr. Justice BRENNAN, Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN, concurring in the judgment in part and dissenting in part. 89 The Court today, in reversing in part the judgment of the Supreme Court of California, affirms the constitutional power of Federal and State Governments to act affirmatively to achieve equal opportunity for all. The difficulty of the issue presented whether government may use race-conscious programs to redress the continuing effects of past discrimination— and the mature consideration which each of our Brethren has brought to it have resulted in many opinions, no single one speaking for the Court. But this should not and must not mask the central meaning of today's opinions: Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative, or administrative bodies with competence to act in this area. 90 THE CHIEF JUSTICE and our Brothers STEWART, REHNQUIST, and STEVENS, have concluded that Title VI of the Civil Rights Act of 1964, 78 Stat. 252, as amended, 42 U.S.C. § 2000d et seq., prohibits programs such as that at the Davis Medical School. On this statutory theory alone, they would hold that respondent Allan Bakke's rights have been violated and that he must, therefore, be admitted to the Medical School. Our Brother POWELL, reaching the Constitution, concludes that, although race may be taken into account in university admissions, the particular special admissions program used by petitioner, which resulted in the exclusion of respondent Bakke, was not shown to be necessary to achieve petitioner's stated goals. Accordingly, these Members of the Court form a majority of five affirming the judgment of the Supreme Court of California insofar as it holds that respondent Bakke "is entitled to an order that he be admitted to the University." 18 Cal.3d 34, 64, 132 Cal.Rptr. 680, 700, 553 P.2d 1152, 1172 (1976). 91 We agree with Mr. Justice POWELL that, as applied to the case before us, Title VI goes no further in prohibiting the use of race than the Equal Protection Clause of the Fourteenth Amendment itself We also agree that the effect of the California Supreme Court's affirmance of the judgment of the Superior Court of California would be to prohibit the University from establishing in the future affirmative-action programs that take race into account. See ante, at 271 n. Since we conclude that the affirmative admissions program at the Davis Medical School is constitutional, we would reverse the judgment below in all respects. Mr. Justice POWELL agrees that some uses of race in university admissions are permissible and, therefore, he joins with us to make five votes reversing the judgment below insofar as it prohibits the University from establishing race-conscious programs in the future.1 92 * Our Nation was founded on the principle that "all Men are created equal." Yet candor requires acknowledgment that the Framers of our Constitution, to forge the 13 Colonies into one Nation, openly compromised this principle of equality with its antithesis: slavery. The consequences of this compromise are well known and have aptly been called our "American Dilemma." Still, it is well to recount how recent the time has been, if it has yet come, when the promise of our principles has flowered into the actuality of equal opportunity for all regardless of race or color. 93 The Fourteenth Amendment, the embodiment in the Constitution of our abiding belief in human equality, has been the law of our land for only slightly more than half its 200 years. And for half of that half, the Equal Protection Clause of the Amendment was largely moribund so that, as late as 1927, Mr. Justice Holmes could sum up the importance of that Clause by remarking that it was the "last resort of constitutional arguments." Buck v. Bell, 274 U.S. 200, 208, 47 S.Ct. 584, 585, 71 L.Ed. 1000 (1927). Worse than desuetude, the Clause was early turned against those whom it was intended to set free, condemning them to a "separate but equal"2 status before the law, a status always separate but seldom equal. Not until 1954—only 24 years ago—was this odious doctrine interred by our decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (Brown I ), and its progeny,3 which proclaimed that separate schools and public facilities of all sorts were inherently unequal and forbidden under our Constitution. Even then inequality was not eliminated with "all deliberate speed." Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955). In 19684 and again in 1971,5 for example, we were forced to remind school boards of their obligation to eliminate racial discrimination root and branch. And a glance at our docket6 and at dockets of lower courts will show that even today officially sanctioned discrimination is not a thing of the past. 94 Against this background, claims that law must be "color-blind" or that the datum of race is no longer relevant to public policy must be seen as aspiration rather than as description of reality. This is not to denigrate aspiration; for reality rebukes us that race has too often been used by those who would stigmatize and oppress minorities. Yet we cannot—and, as we shall demonstrate, need not under our Constitution or Title VI, which merely extends the constraints of the Fourteenth Amendment to private parties who receive federal funds—let color blindness become myopia which masks the reality that many "created equal" have been treated within our lifetimes as inferior both by the law and by their fellow citizens. II 95 The threshold question we must decide is whether Title VI of the Civil Rights Act of 1964 bars recipients of federal funds from giving preferential consideration to disadvantaged members of racial minorities as part of a program designed to enable such individuals to surmount the obstacles imposed by racial discrimination.7 We join Parts I and V-C of our Brother POWELL's opinion and three of us agree with his conclusion in Part II that this case does not require us to resolve the question whether there is a private right of action under Title VI.8 96 In our view, Title VI prohibits only those uses of racial criteria that would violate the Fourteenth Amendment if employed by a State or its agencies; it does not bar the preferential treatment of racial minorities as a means of remedying past societal discrimination to the extent that such action is consistent with the Fourteenth Amendment. The legislative history of Title VI, administrative regulations interpreting the statute, subsequent congressional and executive action, and the prior decisions of this Court compel this conclusion. None of these sources lends support to the proposition that Congress intended to bar all race-conscious efforts to extend the benefits of federally financed programs to minorities who have been historically excluded from the full benefits of American life. A. 97 The history of Title VI—from President Kennedy's request that Congress grant executive departments and agencies authority to cut off federal funds to programs that discriminate against Negroes through final enactment of legislation incorporating his proposals—reveals one fixed purpose: to give the Executive Branch of Government clear authority to terminate federal funding of private programs that use race as a means of disadvantaging minorities in a manner that would be prohibited by the Constitution if engaged in by government. 98 This purpose was first expressed in President Kennedy's June 19, 1963, message to Congress proposing the legislation that subsequently became the Civil Rights Act of 1964.9 Representative Celler, the Chairman of the House Judiciary Committee, and the floor manager of the legislation in the House, introduced Title VI in words unequivocally expressing the intent to provide the Federal Government with the means of assuring that its funds were not used to subsidize racial discrimination inconsistent with the standards imposed by the Fourteenth and Fifth Amendments upon state and federal action. 99 "The bill would offer assurance that hospitals financed by Federal money would not deny adequate care to Negroes. It would prevent abuse of food distribution programs whereby Negroes have been known to be denied food surplus supplies when white persons were given such food. It would assure Negroes the benefits now accorded only white students in programs of high[er] education financed by Federal funds. It would, in short, assure the existing right to equal treatment in the enjoyment of Federal funds. It would not destroy any rights of private property or freedom of association." 110 Cong.Rec. 1519 (1964). 100 It was clear to Representative Celler that Title VI, apart from the fact that it reached all federally funded activities even in the absence of sufficient state or federal control to invoke the Fourteenth or Fifth Amendments, was not placing new substantive limitations upon the use of racial criteria, but rather was designed to extend to such activities "the existing right to equal treatment" enjoyed by Negroes under those Amendments, and he later specifically defined the purpose of Title VI in this way: 101 "In general, it seems rather anomalous that the Federal Government should aid and abet discrimination on the basis of race, color, or national origin by granting money and other kinds of financial aid. It seems rather shocking, moreover, that while we have on the one hand the 14th amendment, which is supposed to do away with discrimination since it provides for equal protection of the laws, on the other hand, we have the Federal Government aiding and abetting those who persist in practicing racial discrimination. 102 "It is for these reasons that we bring forth title VI. The enactment of title VI will serve to override specific provisions of law which contemplate Federal assistance to racially segregated institutions." Id., at 2467. 103 Representative Celler also filed a memorandum setting forth the legal b sis for the enactment of Title VI which reiterated the theme of his oral remarks: "In exercising its authority to fix the terms on which Federal funds will be disbursed . . ., Congress clearly has power to legislate so as to insure that the Federal Government does not become involved in a violation of the Constitution." Id., at 1528. 104 Other sponsors of the legislation agreed with Representative Celler that the function of Title VI was to end the Federal Government's complicity in conduct, particularly the segregation or exclusion of Negroes, inconsistent with the standards to be found in the antidiscrimination provisions of the Constitution. Representative Lindsay, also a member of the Judiciary Committee, candidly acknowledged, in the course of explaining why Title VI was necessary, that it did not create any new standard of equal treatment beyond that contained in the Constitution: 105 "Both the Federal Government and the States are under constitutional mandates not to discriminate. Many have raised the question as to whether legislation is required at all. Does not the Executive already have the power in the distribution of Federal funds to apply those conditions which will enable the Federal Government itself to live up to the mandate of the Constitution and to require States and local government entities to live up to the Constitution, most especially the 5th and 14th amendments?" Id., at 2467. 106 He then explained that legislation was needed to authorize the termination of funding by the Executive Branch because existing legislation seemed to contemplate the expenditure of funds to support racially segregated institutions. Ibid. The views of Representatives Celler and Lindsay concerning the purpose and function of Title VI were shared by other sponsors and proponents of the legislation in the House.10 Nowhere is there any suggestion that Title VI was intended to terminate federal funding for any reason other than consideration of race or national origin by the recipient institution in a manner inconsistent with the standards incorporated in the Constitution. 107 The Senate's consideration of Title VI reveals an identical understanding concerning the purpose and scope of the legislation. Senator Humphrey, the Senate floor manager, opened the Senate debate with a section-by-section analysis of the Civil Rights Act in which he succinctly stated the purpose of Title VI: 108 "The purpose of title VI is to make sure that funds of the United States are not used to support racial discrimination. In many instances the practices of segregation or discrimination, which title VI seeks to end, are unconstitutional. This is clearly so wherever Federal funds go to a State agency which engages in racial discrimination. It may also be so where Federal funds go to support private, segregated institutions, under the decision in Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (C.A.4, 1963), [cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964)]. In all cases, such discrimination is contrary to national policy, and to the moral sense of the Nation. Thus, title VI is simply designed to insure that Federal funds are spent in accordance with the Constitution and the moral sense of the Nation." Id., at 6544. 109 Senator Humphrey, in words echoing statements in the House, explained that legislation was needed to accomplish this objective because it was necessary to eliminate uncertainty concerning the power of federal agencies to terminate financial assistance to programs engaging in racial discrimination in the face of various federal statutes which appeared to authorize grants to racially segregated institutions. Ibid. Although Senator Humphrey realized that Title VI reached conduct which, because of insufficient governmental action, mig t be beyond the reach of the Constitution, it was clear to him that the substantive standard imposed by the statute was that of the Fifth and Fourteenth Amendments. 110 Senate supporters of Title VI repeatedly expressed agreement with Senator Humphrey's description of the legislation as providing the explicit authority and obligation to apply the standards of the Constitution to all recipients of federal funds. Senator Ribicoff described the limited function of Title VI: 111 "Basically, there is a constitutional restriction against discrimination in the use of Federal funds; and title VI simply spells out the procedure to be used in enforcing that restriction." Id., at 13333. 112 Other strong proponents of the legislation in the Senate repeatedly expressed their intent to assure that federal funds would only be spent in accordance with constitutional standards. See remarks of Senator Pastore, id., at 7057, 7062; Senator Clark, id., at 5243; Senator Allott, id., at 12675, 12677.11 113 Respondent's contention that Congress intended Title VI to bar affirmative-action programs designed to enable minorities disadvantaged by the effects of discrimination to participate in federally financed programs is also refuted by an examination of the type of conduct which Congress thought it was prohibiting by means of Title VI. The debates reveal that the legislation was motivated primarily by a desire to eradicate a very specific evil: federal financial support of programs which disadvantaged Negroes by excluding them from participation or providing them with separate facilities. Again and again supporters of Title VI emphasized that the purpose of the statute was to end segregation in federally funded activities and to end other discriminatory uses of race disadvantaging Negroes. Senator Humphrey set the theme in his speech presenting Title VI to the Senate: 114 "Large sums of money are contributed by the United States each year for the construction, operation, and maintenance of segregated schools. 115 * * * * * 116 "Similarly, under the Hill-Burton Act, Federal grants are made to hospitals which admit whites only or Negroes only. . . . 117 "In higher education also, a substantial part of the Federal grants to colleges, medical schools and so forth, in the South is still going to segregated institutions. 118 "Nor is this all. In several States, agricultural extension services, supported by Federal funds, maintain racially segregated offices for Negroes and whites. . . . 119 ". . . Vocational training courses, supported with Federal funds, are given in segregated schools and institutions and often limit Negroes to training in less skilled occupations. In particular localities it is reported that Negroes have been cut off from relief rolls, or denied surplus agricultural commodities, or otherwise deprived of the benefit of federally assisted programs, in retaliation for their participation in v ter registration drives, sit-in demonstrations and the like." Id., at 6543-6544. 120 See also the remarks of Senator Pastore (id., at 7054-7055); Senator Ribicoff (id., at 7064-7065); Senator Clark (id., at 5243, 9086); Senator Javits (id., at 6050, 7102).12 121 The conclusion to be drawn from the foregoing is clear. Congress recognized that Negroes, in some cases with congressional acquiescence, were being discriminated against in the administration of programs and denied the full benefits of activities receiving federal financial support. It was aware that there were many federally funded programs and institutions which discriminated against minorities in a manner inconsistent with the standards of the Fifth and Fourteenth Amendments but whose activities might not involve sufficient state or federal action so as to be in violation of these Amendments. Moreover, Congress believed that it was questionable whether the Executive Branch possessed legal authority to terminate the funding of activities on the ground that they discriminated racially against Negroes in a manner violative of the standards contained in the Fourteenth and Fifth Amendments. Congress' solution was to end the Government's complicity in constitutionally forbidden racial discrimination by providing the Executive Branch with the authority and the obligation to terminate its financial support of any activity which employed racial criteria in a manner condemned by the Constitution. 122 Of course, it might be argued that the Congress which enacted Title VI understood the Constitution to require strict racial neutrality or color blindness, and then enshrined that concept as a rule of statutory law. Later interpretation and clarification of the Constitution to permit remedial use of race would then not dislodge Title VI's prohibition of race-conscious action. But there are three compelling reasons to reject such a hypothesis. 123 First, no decision of this Court has ever adopted the proposition that the Constitution must be colorblind. See infra, at 355-356. 124 Second, even if it could be argued in 1964 that the Constitution might conceivably require color blindness, Congress surely would not have chosen to codify such a view unless the Constitution clearly required it. The legislative history of Title VI, as well as the statute itself, reveals a desire to induce voluntary compliance with the requirement of nondiscriminatory treatment.13 See § 602 of the Act, 42 U.S.C. § 2000d-1 (no funds shall be terminated unless and until it has been "determined that compliance cannot be secured by voluntary means"); H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 25 (1963), U.S.Code Cong. & Admin.News 1964, p. 2355; 110 Cong.Rec. 13700 (1964) (Sen. Pastore); id., at 6546 (Sen. Humphrey). It is inconceivable that Congress intended to encourage voluntary efforts to eliminate the evil of racial discrimination while at the same time forbidding the voluntary use of race-conscious remedies to cure acknowledged or obvious statutory violations. Yet a reading of Title VI as prohibiting all action predicated upon race which adversely affects any individual would require recipients guilty of discrimination to await the imposition of such remedies by the Executive Branch. Indeed, such an interpretation of Title VI would prevent recipients of federal funds from taking race into account even when necessary to bring their programs into compliance with federal constitutional requirements. This would be a remarkable reading of a statute designed to eliminate constitutional violations, especially in light of judicial decisions holding that under certain circumstances the remedial use of racial criteria is not only permissible but is constitutionally required to eradicate constitutional violations. For example, in Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971), the Court held that a statute forbidding the assignment of students on the basis of race was unconstitutional because it would hinder the implementation of remedies necessary to accomplish the desegregation of a school system: "Just as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy." Id., at 46, 91 S.Ct., at 1286. Surely Congress did not intend to prohibit the use of racial criteria when constitutionally required or to terminate the funding of any entity which implemented such a remedy. It clearly desired to encourage all remedies, including the use of race, necessary to eliminate racial discrimination in violation of the Constitution rather than requiring the recipient to await a judicial adjudication of unconstitutionality and the judicial imposition of a racially oriented remedy. 125 Third, the legislative history shows that Congress specifically eschewed any static definition of discrimination in favor of broad language that could be shaped by experience, administrative necessity, and evolving judicial doctrine. Although it is clear from the debates that the supporters of Title VI intended to ban uses of race prohibited by the Constitution and, more specifically, the maintenance of segregated facilities, they never precisely defined the term "discrimination," or what constituted an exclusion from participation or a denial of benefits on the ground of race. This failure was not lost upon its opponents. Senator Ervin complained: 126 "The word 'discrimination,' as used in this reference, has no contextual explanation whatever, other than the provision that the discrimination 'is to be against' individuals participating in or benefiting from federally assisted programs and activities on the ground specified. With this context, the discrimination condemned by this reference occurs only when an individual is treated unequally or unfairly because of his race, color, religion, or national origin. What constitutes unequal or unfair treatment? Section 601 and section 602 of title VI do not say. They leave the determination of that question to the executive department or agencies administering each program, without any guideline whatever to point out what is the congressional intent." 110 Cong.Rec. 5612 (1964). 127 See also remarks of Representative Abernethy (id., at 1619); Representative Dowdy (id., at 1632); Senator Talmadge (id., at 5251); Senator Sparkman (id., at 6052). Despite these criticisms, the legislation's supporters refused to include in the statute or even provide in debate a more explicit definition of what Title VI prohibited. 128 The explanation for this failure is clear. Specific definitions were undesirable, in the views of the legislation's principal backers, because Title VI's standard was that of the Constitution and one that could and should be administratively and judicially applied. See remarks of Senator Humphrey (id., at 5253, 6553); Senator Ribicoff (id., at 7057, 13333); Senator Pastore (id., at 7057); Senator Javits (id., at 5606-5607, 6050).14 Indeed, there was a strong emphasis throughout Congress' consideration of Title VI on providing the Executive Branch with considerable flexibility in interpreting and applying the prohibition against racial discrimination. Attorney General Robert Kennedy testified that regulations had not been written into the legislation itself because the rules and regulations defining discrimination might differ from one program to another so that the term would assume different meanings in different contexts.15 This dete mination to preserve flexibility in the administration of Title VI was shared by the legislation's supporters. When Senator Johnston offered an amendment that would have expressly authorized federal grantees to take race into account in placing children in adoptive and foster homes, Senator Pastore opposed the amendment, which was ultimately defeated by a 56-29 vote, on the ground that federal administrators could be trusted to act reasonably and that there was no danger that they would prohibit the use of racial criteria under such circumstances. Id., at 13695. 129 Congress' resolve not to incorporate a static definition of discrimination into Title VI is not surprising. In 1963 and 1964, when Title VI was drafted and debated, the courts had only recently applied the Equal Protection Clause to strike down public racial discrimination in America, and the scope of that Clause's nondiscrimination principle was in a state of flux and rapid evolution. Many questions, such as whether the Fourteenth Amendment barred only de jure discrimination or in at least some circumstances reached de facto discrimination, had not yet received an authoritative judicial resolution. The congressional debate reflects an awareness of the evolutionary change that constitutional law in the area of racial discrimination was undergoing in 1964.16 130 In sum, Congress' equating of Title VI's prohibition with the commands of the Fifth and Fourteenth Amendments, its refusal precisely to define that racial discrimination which it intended to prohibit, and its expectation that the statute would be administered in a flexible manner, compel the conclusion that Congress intended the meaning of the statute's prohibition to evolve with the interpretation of the commands of the Constitution. Thus, any claim that the use of racial criteria is barred by the plain language of the statute must fail in light of the remedial purpose of Title VI and its legislative history. The cryptic nature of the language employed in Title VI merely reflects Congress' concern with the then-prevalent use of racial standards as a means of excluding or disadvantaging Negroes and its determination to prohibit absolutely such discrimination. We have recently held that " '[w]hen aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no "rule of law" which forbids its use, however clear the words may appear on "superficial examination." ' " Train v. Colorado Public Interest Research Group, 426 U.S. 1, 10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976), quoting United States v. American Trucking Assns., 310 U.S. 534, 543-544, 60 S.Ct. 1059, 1063-1064, 84 L.Ed. 1345 (1940). This is especially so when, as is the case here, the literal application of what is believed to be the plain language of the statute, assuming that it is so plain, would lead to results in direct conflict with Congress' unequivocally expressed legislative purpose.17 B 131 Section 602 of Title VI, 42 U.S.C. § 2000d-1, instructs federal agencies to promulgate regulations interpreting Title VI. These regulations, which, under the terms of the statute, require Presidential approval, are entitled to considerable deference in construing Title VI. See, e. g., Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974); Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1660, 36 L.Ed.2d 318 (1973); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969). Consequently, it is most significant that the Department of Health, Education, and Welfare (HEW), which provides much of the federal assistance to institutions of higher education, has adopted regulations requiring affirmative measures designed to enable racial minorities which have been previously discriminated against by a federally funded institution or program to overcome the effects of such actions and authorizing the voluntary undertaking of affirmative-action programs by federally funded institutions that have not been guilty of prior discrimination in order to overcome the effects of conditions which have adversely affected the degree of participation by persons of a particular race. 132 Title 45 CFR § 80.3(b)(6)(i) (1977) provides: 133 "In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination." 134 Title 45 CFR § 80.5(i) (1977) elaborates upon this requirement: 135 "In some situations, even though past discriminatory practices attributable to a recipient or applicant have been abandoned, the consequences of such practices continue to impede the full availability of a benefit. If the efforts required of the applicant or recipient under § 80.6(d), to provide information as to the availability of the program or activity and the rights of beneficiaries under this regulation, have failed to overcome these consequences, it will become necessary under the requirement stated in (i) of § 80.3(b)(6) for such applicant or recipient to take additional steps to make the benefits fully available to racial and nationality groups previously subject to discrimination. This action might take the form, for example, of special arrangements for obtaining referrals or making selections which will insure that groups previously subjected to discrimination are adequately served." 136 These regulations clearly establish that where there is a need to overcome the effects of past racially discriminatory or exclusionary practices engaged in by a federally funded institution, race-conscious action is not only permitted but required to accomplish the remedial objectives of Title VI.18 Of course, there is no evidence that the Medical School has been guilty of past discrimination and consequently these regulations would not compel it to employ a program of preferential admissions in behalf of racial minorities. It would be difficult to explain from the language of Title VI, however, much less from its legislative history, why the statute compels race-conscious remedies where a recipient institution has engaged in past discrimination but prohibits such remedial action where racial minorities, as a result of the effects of past discrimination imposed by entities other than the recipient, are excluded from the benefits of federally funded programs. HEW was fully aware of the incongruous nature of such an interpretation of Title VI. 137 Title 45 CFR § 80.3(b)(6)(ii) (1977) provides: 138 "Even in the absence of such prior discrimination, a recipient in administering a program may take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin." 139 An explanatory regulation explicitly states that the affirmative action which § 80.3(b)(6)(ii) contemplates includes the use of racial preferences: 140 "Even though an applicant or recipient has never used discriminatory policies, the services and benefits of the program or activity it administers may not in fact be equally available to some racial or nationality groups. In such circumstances, an applicant or recipient may properly give special consideration to race, color, or national origin to make the benefits of its program more widely available to such groups, not then being adequately served. For example, where a university is not adequately serving members of a particular racial or nationality group, it may establish special recruitment policies to make its program better known and more readily available to such group, and take other steps to provide that group with more adequate service." 45 CFR § 80.5(j) (1977). 141 This interpretation of Title VI is fully consistent with the statute's emphasis upon voluntary remedial action and reflects the views of an agency19 responsible for achieving its objectives.20 142 The Court has recognized that the construction of a statute by those charged with its execution is particularly deserving of respect where Congress has directed its attention to the administrative construction and left it unaltered. Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S., at 381, 89 S.Ct., at 1801; Zemel v. Rusk, 381 U.S. 1, 11-12, 85 S.Ct. 1271, 1278-1279, 14 L.Ed.2d 179 (1965). Congress recently took just this kind of action when it considered an amendment to the Departments of Labor and Health, Education, and Welfare appropriation bill for 1978, which would have restricted significantly the remedial use of race in programs funded by the appropriation. The amendment, as originally submitted by Representative Ashbrook, provided that "[n]one of the funds appropriated in this Act may be used to initiate, carry out or enforce any program of affirmative action or any other system of quotas or goals in regard to admission policies or employment practices which encourage or require any discrimination on the basis of race, creed, religion, sex or age." 123 Rec. 19715 (1977). In support of the measure, Representative Ashbrook argued that the 1964 Civil Rights Act never authorized the imposition of affirmative action and that this was a creation of the bureaucracy. Id., at 19722. He explicitly stated, however, that he favored permitting universities to adopt affirmative action programs giving consideration to racial identity but opposed the imposition of such programs by the Government. Id., at 19715. His amendment was itself amended to reflect this position by only barring the imposition of race-conscious remedies by HEW: 143 "None of the funds appropriated in this Act may be obligated or expended in connection with the issuance, implementation, or enforcement of any rule, regulation, standard, guideline, recommendation, or order issued by the Secretary of Health, Education, and Welfare which for purposes of compliance with any ratio, quota, or other numerical requirement related to race, creed, color, national origin, or sex requires any individual or entity to take any action with respect to (1) the hiring or promotion policies or practices of such individual or entity, or (2) the admissions policies or practices of such individual or entity." Id., at 19722. 144 This amendment was adopted by the House. Ibid. The Senate bill, however, contained no such restriction upon HEW's authority to impose race-conscious remedies and the Conference Committee, upon the urging of the Secretary of HEW, deleted the House provision from the bill.21 More significant for present purposes, however, is the fact that even the proponents of imposing limitations upon HEW's implementation of Title VI did not challenge the right of federally funded educational institutions voluntarily to extend preferences to racial minorities. 145 Finally, congressional action subsequent to the passage of Title VI eliminates any possible doubt about Congress' views concerning the permissibility of racial preferences for the purpose of assisting disadvantaged racial minorities. It confirms that Congress did not intend to prohibit and does not now believe that Title VI prohibits the consideration of race as part of a remedy for societal discrimination even where there is no showing that the institution extending the preference has been guilty of past discrimination nor any judicial finding that the particular beneficiaries of the racial preference have been adversely affected by societal discrimination. 146 Just last year Congress enacted legislation22 explicitly requiring that no grants shall be made "for any local public works project unless the applicant gives satisfactory assurance to the Secretary [of Commerce] that at least 10 per centum of the amount of each grant shall be expended for minority business enterprises." The statute defines the term "minority business enterprise" as "a business, at least 50 per centum of which is owned by minority group members or, in case of a publicly owned business, at least 51 per centum of the stock of which is owned by minority group members." The term "minority group members" is defined in explicitly racial terms: "citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts." Although the statute contains an exemption from this requirement "to the extent that the Secretary determines otherwise," this escape clause was provided only to deal with the possibility that certain areas of the country might not contain sufficient qualified "minority business enterprises" to permit compliance with the quota provisions of the legislation.23 147 The legislative history of this race-conscious legislation reveals that it represents a deliberate attempt to deal with the excessive rate of unemployment among minority citizens and to encourage the development of viable minority controlled enterprises.24 It was believed that such a "set-aside" was required in order to enable minorities, still "new on the scene" and "relatively small," to compete with larger and more established companies which would always be successful in underbidding minority enterprises. 123 Cong.Rec. 5327 (1977) (Rep. Mitchell). What is most significant about the congressional consideration of the measure is that although the use of a racial quota or "set-aside" by a recipient of federal funds would constitute a direct violation of Title VI if that statute were read to prohibit race-conscious action, no mention was made during the debates in either the House or the Senate of even the possibility that the quota provisions for minority contractors might in any way conflict with or modify Title VI. It is inconceivable that such a purported conflict would have escaped congressional attention through an inadvertent failure to recognize the relevance of Title VI. Indeed, the Act of which this affirmative-action provision is a part also contains a provision barring discrimination on the basis of sex which states that this prohibition "will be enforced through agency provisions and rules similar to those already established, with respect to racial and other discrimination under Title VI of the Civil Rights Act of 1964." 42 U.S.C. § 6709 (1976 ed.). Thus Congress was fully aware of the applicability of Title VI to the funding of public works projects. Under these circumstances, the enactment of the 10% "set-aside" for minority enterprises reflects a congressional judgment that the remedial use of race is permissible under Title VI. We have repeatedly recognized that subsequent legislation reflecting an interpretation of an ear ier Act is entitled to great weight in determining the meaning of the earlier statute. Red Lion Broadcasting Co. v. FCC, 395 U.S., at 380381, 89 S.Ct., at 1801-1802; Erlenbaugh v. United States, 409 U.S. 239, 243-244, 93 S.Ct. 477, 480-481, 34 L.Ed.2d 446 (1972). See also United States v. Stewart, 311 U.S. 60, 64-65, 61 S.Ct. 102, 105-106 85 L.Ed. 40 (1940).25 C 148 Prior decisions of this Court also strongly suggest that Title VI does not prohibit the remedial use of race where such action is constitutionally permissible. In Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), the Court held that the failure of the San Francisco school system to provide English-language instruction to students of Chinese ancestry who do not speak English, or to provide them with instruction in Chinese, constituted a violation of Title VI. The Court relied upon an HEW regulation which stipulates that a recipient of federal funds "may not . . . utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination" or have "the effect of defeating or substantially impa ring accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin." 45 CFR § 80.3(b)(2) (1977). It interpreted this regulation as requiring San Francisco to extend the same educational benefits to Chinese-speaking students as to English-speaking students, even though there was no finding or allegation that the city's failure to do so was a result of a purposeful design to discriminate on the basis of race. 149 Lau is significant in two related respects. First, it indicates that in at least some circumstances agencies responsible for the administration of Title VI may require recipients who have not been guilty of any constitutional violations to depart from a policy of color blindness and to be cognizant of the impact of their actions upon racial minorities. Secondly, Lau clearly requires that institutions receiving federal funds be accorded considerable latitude in voluntarily undertaking race-conscious action designed to remedy the exclusion of significant numbers of minorities from the benefits of federally funded programs. Although this Court has not yet considered the question, presumably, by analogy to our decisions construing Title VII, a medical school would not be in violation of Title VI under Lau because of the serious underrepresentation of racial minorities in its student body as long as it could demonstrate that its entrance requirements correlated sufficiently with the performance of minority students in medical school and the medical profession.26 It would be inconsistent with Lau and the emphasis of Title VI and the HEW regulations on voluntary action, however, to require that an institution wait to be adjudicated to be in violation of the law before being permitted to voluntarily undertake corrective action based upon a good-faith and reasonable belief that the failure of certain racial minorities to satisfy entrance requirements is not a measure of their ultimate performance as doctors but a result of the lingering effects of past societal discrimination. 150 We recognize that Lau, especially when read in light of our subsequent decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), which rejected the general proposition that governmental action is unconstitutional solely because it has a racially disproportionate impact, may be read as being predicated upon the view that, at least under some circumstances, Title VI proscribes conduct which might not be prohibited by the Constitution. Since we are now of the opinion, for the reasons set forth above, that Title VI's standard, applicable alike to public and private recipients of federal funds, is no broader than the Constitution's, we have serious doubts concerning the correctness of what appears to be the premise of that decision. However, even accepting Lau's implication that impact alone is in some contexts sufficient to establish a prima facie violation of Title VI, contrary to our review that Title VI's definition of racial discrimination is absolutely coextensive with the Constitution's, this would not assist the respondent in the least. First, for the reasons discussed supra, at 336-350, regardless of whether Title VI's prohibitions extend beyond the Constitution's, the evidence fails to establish, and, indeed, compels the rejection of, the proposition that Congress intended to prohibit recipients of federal funds from voluntarily employing race-conscious measures to eliminate the effects of past societal discrimination against racial minorities such as Negroes. Secondly, Lau itself, for the reasons set forth in the immediately preceding paragraph, strongly supports the view that voluntary race-conscious remedial action is permissible under Title VI. If discriminatory racial impact alone is enough to demonstrate at least a prima facie Title VI violation, it is difficult to believe hat the Title would forbid the Medical School from attempting to correct the racially exclusionary effects of its initial admissions policy during the first two years of the School's operation. 151 The Court has also declined to adopt a "color-blind" interpretation of other statutes containing nondiscrimination provisions similar to that contained in Title VI. We have held under Title VII that where employment requirements have a disproportionate impact upon racial minorities they constitute a statutory violation, even in the absence of discriminatory intent, unless the employer is able to demonstrate that the requirements are sufficiently related to the needs of the job.27 More significantly, the Court has required that preferences be given by employers to members of racial minorities as a remedy for past violations of Title VII, even where there has been no finding that the employer has acted with a discriminatory intent.28 Finally, we have construed the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. (1970 ed. and Supp. V), which contains a provision barring any voting procedure or qualification that denies or abridges "the right of any citizen of the United States to vote on account of race or color," as permitting States to voluntarily take race into account in a way that fairly represents the voting strengths of different racial groups in order to comply with the commands of the statute, even where the result is a gain for one racial group at the expense of others.29 152 These prior decisions are indicative of the Court's unwillingness to construe remedial statutes designed to eliminate discrimination against racial minorities in a manner which would impede efforts to attain this objective. There is no justification for departing from this course in the case of Title VI and frustrating the clear judgment of Congress that race-conscious remedial action is permissible. 153 We turn, therefore, to our analysis of the Equal Protection Clause of the Fourteenth Amendment. III A. 154 The assertion of human equality is closely associated with the proposition that differences in color or creed, birth or status, are neither significant nor relevant to the way in which persons should be treated. Nonetheless, the position that such factors must be "constitutionally an irrelevance," Edwards v. California, 314 U.S. 160, 185, 62 S.Ct. 164, 172, 86 L.Ed. 119 (1941) (Jackson, J., concurring), summed up by the shorthand phrase "[o]ur Constitution is color-blind," Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 1146, 41 L.Ed. 256 (1896) (Harlan, J., dissenting), has never been adopted by this Court as the proper meaning of the Equal Protection Clause. In deed, we have expressly rejected this proposition on a number of occasions. 155 Our cases have always implied that an "overriding statutory purpose," McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 288, 13 L.Ed.2d 222 (1964), could be found that would justify racial classifications. See, e. g., ibid.; Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944); Hirabayashi v. United States, 320 U.S. 81, 100-101, 63 S.Ct. 1375, 1385-1386, 87 L.Ed. 1774 (1943). More recently, in McDaniel v. Barresi, 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 582 (1971), this Court unanimously reversed the Georgia Supreme Court which had held that a desegregation plan voluntarily adopted by a local school board, which assigned students on the basis of race, was per se invalid because it was not color-blind. And in North Carolina Board of Education v. Swann we held, again unanimously, that a statute mandating color-blind school-assignment plans could not stand "against the background of segregation," since such a limit on remedies would "render illusory the promise of Brown [I]." 402 U.S., at 45-46, 91 S.Ct., at 1286. 156 We conclude, therefore, that racial classifications are not per se invalid under the Fourteenth Amendment. Accordingly, we turn to the problem of articulating what our role should be in reviewing state action that expressly classifies by race. B 157 Respondent argues that racial classifications are always suspect and, consequently, that this Court should weigh the importance of the objectives served by Davis' special admissions program to see if they are compelling. In addition, he asserts that t is Court must inquire whether, in its judgment, there are alternatives to racial classifications which would suit Davis' purposes. Petitioner, on the other hand, states that our proper role is simply to accept petitioner's determination that the racial classifications used by its program are reasonably related to what it tells us are its benign purposes. We reject petitioner's view, but, because our prior cases are in many respects inapposite to that before us now, we find it necessary to define with precision the meaning of that inexact term, "strict scrutiny." 158 Unquestionably we have held that a government practice or statute which restricts "fundamental rights" or which contains "suspect classifications" is to be subjected to "strict scrutiny" and can be justified only if it furthers a compelling government purpose and, even then, only if no less restrictive alternative is available.30 See, e. g., San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 16-17, 93 S.Ct. 1278, 1287-1288, 36 L.Ed.2d 16 (1973); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). But no fundamental right is involved here. See San Antonio, supra, 411 U.S., at 29-36, 93 S.Ct., at 1294-1298. Nor do whites as a class have any of the "traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." Id., at 28, 93 S.Ct., at 1294; see United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783, 82 L.Ed. 1234 (1938).31 159 Moreover, if the University's representations are credited, this is not a case where racial classifications are "irrelevant and therefore prohibited." Hirabayashi, supra, 320 U.S., at 100, 63 S.Ct., at 1385. Nor has anyone suggested that the University's purposes contravene the cardinal principle that racial classifications that stigmatize—because they are drawn on the presumption that one race is inferior to another or because they put the weight of government behind racial hatred and separatism—are invalid without more. See Yick Wo v. Hopkins, 118 U.S. 356, 374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886);32 accord, Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1880); Korematsu v. United States, supra, 323 U.S., at 223, 65 S.Ct., at 197; Oyama v. California, 332 U.S. 633, 663, 68 S.Ct. 269, 283, 92 L.Ed. 249 (1948) (Murphy, J., concurring); Brown I, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); McLaughlin v. Florida, supra, 379 U.S., at 191-192, 85 S.Ct., at 287-289; Loving v. Virginia, supra, 388 U.S., at 11-12, 87 S.Ct., at 1823-1824; Reitman v. Mulkey, 387 U.S. 369, 375-376, 87 S.Ct. 1627, 1631-1632, 18 L.Ed.2d 830 (1967); United Jewish Organizations v. Carey, 430 U.S. 144, 165, 97 S.Ct. 996, 1009, 51 L.Ed.2d 229 (1977) (UJO) (opinion of WHITE, J., joined by REHNQUIST and STEVENS, JJ.); id., at 169, 97 S.Ct., at 1011 (opinion concurring in part).33 160 On the other hand, the fact that this case does not fit neatly into our prior analytic framework for race cases does not mean that it should be analyzed by applying the very loose rational-basis standard of review that is the very least that is always applied in equal protection cases.34 " '[T]he mere recitation of a benign, compensatory purpose is not an automatic shieldhich protects against any inquiry into the actual purposes underlying a statutory scheme.' " Califano v. Webster, 430 U.S. 313, 317, 97 S.Ct. 1192, 1194, 51 L.Ed.2d 360 (1977), quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 648, 95 S.Ct. 1225, 1233, 43 L.Ed.2d 514 (1975). Instead, a number of considerations developed in gender-discrimination cases but which carry even more force when applied to racial classifications—lead us to conclude that racial classifications designed to further remedial purposes " 'must serve important governmental objectives and must be substantially related to achievement of those objectives.' " Califano v. Webster, supra, 430 U.S., at 317, 97 S.Ct., at 1194, quoting Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976).35 161 First, race, like, "gender-based classifications too often [has] been inexcusably utilized to stereotype and stigmatize politically powerless segments of society." Kahn v. Shevin, 416 U.S. 351, 357, 94 S.Ct. 1734, 1738, 40 L.Ed.2d 189 (1974) (dissenting opinion). While a carefully tailored statute designed to remedy past discrimination could avoid these vices, see Califano v. Webster, supra; Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Kahn v. Shevin, supra, we nonetheless have recognized that the line between honest and thoughtful appraisal of the effects of past discrimination and paternalistic stereotyping is not so clear and that a statute based on the latter is patently capable of stigmatizing all women with a badge of inferiority. Cf. Schlesinger v. Ballard, supra, 419 U.S., at 508, 95 S.Ct., at 577; UJO, supra, 430 U.S., at 174, and n. 3, 97 S.Ct., at 1014 (opinion concurring in part); Califano v. Goldfarb, 430 U.S. 199, 223, 97 S.Ct. 1021, 1035, 51 L.Ed.2d 270 (1977) (STEVENS, J., concurring in judgment). See also Stanton v. Stanton, 421 U.S. 7, 14-15, 95 S.Ct. 1373, 1377-1378, 43 L.Ed.2d 688 (1975). State programs designed ostensibly to ameliorate the effects of past racial discrimination obviously create the same hazard of stigma, since they may promote racial separatism and reinforce the views of those who believe that members of racial minorities are inherently incapable of succeeding on their own. See UJO, supra, 430 U.S., at 172, 97 S.Ct., at 1013 (opinion concurring in part); ante, at 298 (opinion of POWELL, J.). 162 Second, race, like gender and illegitimacy, see Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), is an immutable characteristic which its possessors are powerless to escape or set aside. While a classification is not per se invalid because it divides classes on the basis of an immutable characteristic, see supra, at 355-356, it is nevertheless true that such divisions are contrary to our deep belief that "legal burdens should bear some relationship to individual responsibility or wrongdoing," Weber, supra, 406 U.S., at 175, 92 S.Ct., at 1407; Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583 (1973) (opinion of BRENNAN, WHITE, and MARSHALL, JJ.), and that advancement sanctioned, sponsored, or approved by the State should ideally be based on individual merit or achievement, or at the least on factors within the control of an individual. See UJO, 430 U.S., at 173, 97 S.Ct., at 1013 (opinion concurring in part); Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 566, 67 S.Ct. 910, 917, 91 L.Ed. 1093 (1947) (Rutledge, J., dissenting). 163 Because this principle is so deeply rooted it might be supposed that it would be considered in the legislative process and weighed against the benefits of programs preferring individuals because of their race. But this is not necessarily so: The "natural consequence of our governing process [may well be] that the most 'discrete and insular' of whites . . . will be called upon to bear the immediate, direct costs of benign discrimination." UJO, supra, 430 U.S., at 174, 97 S.Ct., at 1014 (opinion concurring i part). Moreover, it is clear from our cases that there are limits beyond which majorities may not go when they classify on the basis of immutable characteristics. See, e. g., Weber, supra. Thus, even if the concern for individualism is weighed by the political process, that weighing cannot waive the personal rights of individuals under the Fourteenth Amendment. See Lucas v. Colorado General Assembly, 377 U.S. 713, 736, 84 S.Ct. 1459, 1473, 12 L.Ed.2d 632 (1964). 164 In sum, because of the significant risk that racial classifications established for ostensibly benign purposes can be misused, causing effects not unlike those created by invidious classifications, it is inappropriate to inquire only whether there is any conceivable basis that might sustain such a classification. Instead, to justify such a classification an important and articulated purpose for its use must be shown. In addition, any statute must be stricken that stigmatizes any group or that singles out those least well represented in the political process to bear the brunt of a benign program. Thus, our review under the Fourteenth Amendment should be strict—not " 'strict' in theory and fatal in fact,"36 because it is stigma that causes fatality—but strict and searching nonetheless. IV 165 Davis' articulated purpose of remedying the effects of past societal discrimination is, under our cases, sufficiently important to justify the use of race-conscious admissions programs where there is a sound basis for concluding that minority underrepresentation is substantial and chronic, and that the handicap of past discrimination is impeding access of minorities to the Medical School. 166 * At least since Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), it has been clear that a public body which has itself been adjudged to have engaged in racial discrimination cannot bring itself into compliance with the Equal Protection Clause simply by ending its unlawful acts and adopting a neutral stance. Three years later, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), and its companion cases, Davis v. School Comm'rs of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971); McDaniel v. Barresi, 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 582 (1971), and North Carolina Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971), reiterated that racially neutral remedies for past discrimination were inadequate where consequences of past discriminatory acts influence or control present decisions. See, e. g., Charlotte-Mecklenburg, supra, 402 U.S., at 28, 91 S.Ct., at 1282. And the Court further held both that courts could enter desegregation orders which assigned students and faculty by reference to race, Charlotte-Mecklenburg, supra; Davis, supra; United States v. Montgomery County Board of Ed., 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969), and that local school boards could voluntarily adopt desegregation plans which made express reference to race if this was necessary to remedy the effects of past discrimination. McDaniel v. Barresi, supra. Moreover, we stated that school boards, even in the absence of a judicial finding of past discrimination, could voluntarily adopt plans which assigned students with the end of creating racial pluralism by establishing fixed ratios of black and white students in each school. Charlotte-Mecklenburg, supra, 402 U.S., at 16, 91 S.Ct., at 1276. In each instance, the creation of unitary school systems, in which the effects of past discrimination had been "eliminated root and branch," Green, supra, 391 U.S., at 438, 88 S.Ct., at 1694, was recognized as a compelling social goal justifying the overt use of race. 167 Finally, the conclusion that state educational institutions may constitutionally adopt admissions programs designed to avoid exclusion of historically disadvantaged minorities, even when such programs explicitly take race into account, finds direct support in our cases construing congressional legislation designed to overcome the present effects of past discrimination. Congress can and has outlawed actions which have a disproportionately adverse and unjustified impact upon members of racial minorities and has required or authorized race-conscious action to put individuals disadvantaged by such impact in the position they otherwise might have enjoyed. See Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Such relief does not require as a predicate proof that recipients of preferential advancement have been individually discriminated against; it is enough that each recipient is within a general class of persons likely to have been the victims of discrimination. See id., at 357-362, 97 S.Ct., at 1865-1868. Nor is it an objection to such relief that preference for minorities will upset the settled expectations of nonminorities. See Franks, supra. In addition, we have held that Congress, to remove barriers to equal opportunity, can and has required employers to use test criteria that fairly reflect the qualifications of minority applicants vis-a-vis nonminority applicants, even if this means interpreting the qualifications of an applicant in light of his race. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 435, 95 S.Ct. 2362, 2380, 45 L.Ed.2d 280 (1975).37 168 These cases cannot be distinguished simply by the presence of judicial findings of discrimination, for race-conscious remedies have been approved where such findings have not been made. McDaniel v. Barresi, supra; UJO; seeCalifano V. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977); Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). See alsoKatzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). Indeed, the requirement of a judicial determination of a constitutional or statutory violation as a predicate for race-conscious remedial actions would be self-defeating. Such a requirement would severely undermine efforts to achieve voluntary compliance with the requirements of law. And our society and jurisprudence have always stressed the value of voluntary efforts to further the objectives of the law. Judicial intervention is a last resort to achieve cessation of illegal conduct or the remedying of its effects rather than a prerequisite to action.38 169 No can our cases be distinguished on the ground that the entity using explicit racial classifications itself had violated § 1 of the Fourteenth Amendment or an antidiscrimination regulation, for again race-conscious remedies have been approved where this is not the case. See UJO, 430 U.S., at 157, 97 S.Ct., at 1005 (opinion of WHITE, J., joined by BRENNAN, BLACKMUN, and STEVENS, JJ.);39 id., at 167, 97 S.Ct., at 1010 (opinion of WHITE, J., joined by REHNQUIST and STEVENS, JJ.);40 cf. Califano v. Webster, supra, 430 U.S., at 317, 97 S.Ct., at 1194; Kahn v. Shevin, supra. Moreover, the presence or absence of past discrimination by universities or employers is largely irrelevant to resolving respondent's constitutional claims. The claims of those burdened by the race-conscious actions of a university or employer who has never been adjudged in violation of an antidiscrimination law are not any more or less entitled to deference than the claims of the burdened nonminority workers in Franks v. Bowman Transportation Co., supra, in which the employer had violated Title VII, for in each case the employees are innocent of past discrimination. And, although it might be argued that, where an employer has violated an antidiscrimination law, the expectations of nonminority workers are themselves products of discrimination and hence "tainted," see Franks, supra, at 776, 96 S.Ct., at 1270, and therefore more easily upset, the same argument can be made with respect to respondent. If it was reasonable to conclude—as we hold that it was—that the failure of minorities to qualify for admission at Davis under regular procedures was due principally to the effects of past discrimination, then there is a reasonable likelihood that, but for pervasive racial discrimination, respondent would have failed to qualify for admission even in the absence of Davis' special admissions program.41 170 Thus, our cases under Title VII of the Civil Rights Act have held that, in order to achieve minority participation in previously segregated areas of public life, Congress may require or authorize preferential treatment for those likely disadvantaged by societal racial discrimination. Such legislation has been sustained even without a requirement of findings of intentional racial discrimination by those required or authorized to accord preferential treatment, or a case-by-case determination that those to be benefited suffered from racial discrimination. These decisions compel the conclusion that States also may adopt race-conscious programs designed to overcome substantial, chronic minority underrepresentation where there is reason to believe that the evil addressed is a product of past racial discrimination.42 171 Title VII was enacted pursuant to Congress' power under the Commerce Clause and § 5 of the Fourteenth Amendment. To the extent that Congress acted under the Commerce Clause power, it was restricted in the use of race in governmental decisionmaking by the equal protection component of the Due Process Clause of the Fifth Amendment precisely to the same extent as are the States by § 1 of the Fourteenth Amendment.43 Therefore, to the extent that Title VII rests on the Commerce Clause power, our decisions such as Franks and Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), implicitly recognize that the affirmative use of race is consistent with the equal protection component of the Fifth Amendment and therefore with the Fourteenth Amendment. To the extent that Congress acted pursuant to § 5 of the Fourteenth Amendment, those cases impliedly recognize that Congress was empowered under that provision to accord preferential treatment to victims of past discrimination in order to overcome the effects of segregation, and we see no reason to conclude that the States cannot voluntarily accomplish under § 1 of the Fourteenth Amendment what Congress under § 5 of the Fourteenth Amendment validly may authorize or compel either the States or private persons to do. A contrary position would conflict with the traditional understanding recognizing the competence of the States to initiate measures consistent with federal policy in the absence of c ngressional pre-emption of the subject matter. Nothing whatever in the legislative history of either the Fourteenth Amendment or the Civil Rights Acts even remotely suggests that the States are foreclosed from furthering the fundamental purpose of equal opportunity to which the Amendment and those Acts are addressed. Indeed, voluntary initiatives by the States to achieve the national goal of equal opportunity have been recognized to be essential to its attainment. "To use the Fourteenth Amendment as a sword against such State power would stultify that Amendment." Railway Mail Assn. v. Corsi, 326 U.S. 88, 98, 65 S.Ct. 1483, 1489, 89 L.Ed. 2072 (1945) (Frankfurter, J., concurring).44 We therefore conclude that Davis' goal of admitting minority students disadvantaged by the effects of past discrimination is sufficiently important to justify use of race-conscious admissions criteria. B 172 Properly construed, therefore, our prior cases unequivocally show that a state government may adopt race-conscious programs if the purpose of such programs is to remove the disparate racial impact its actions might otherwise have and if there is reason to believe that the disparate impact is itself the product of past discrimination, whether its own or that of society at large. There is no question that Davis' program is valid under this test. 173 Certainly, on the basis of the undisputed factual submissions before this Court, Davis had a sound basis for believing that the problem of underrepresentation of minorities was substantial and chronic and that the problem was attributable to handicaps imposed on minority applicants by past and present racial discrimination. Until at least 1973, the practice of medicine in this country was, in fact, if not in law, largely the prerogative of whites.45 In 1950, for example, while Negroes constituted 10% of the total population, Negro physicians constituted only 2.2% of the total number of physicians.46 The overwhelming majority of these, moreover, were educated in two predominantly Negro medical schools, Howard and Meharry.47 By 1970, the gap between the proportion of Negroes in medicine and their proportion in the population had widened: The number of Negroes employed in medicine remained frozen at 2.2%48 while the Negro population had increased to 11.1%.49 The number of Negro admittees to predominantly white medical schools, moreover, had declined in absolute numbers during the years 1955 to 1964. Odegaard 19. 174 Moreover, Davis had very good reason to believe that the national pattern of underrepresentation of minorities in medicine would be perpetuated if it retained a single admissions standard. For example, the entering classes in 1968 and 1969, the years in which such a standard was used, included only 1 Chicano and 2 Negroes out of the 50 admittees for each year. Nor is there any relief from this pattern of underrepresentation in the statistics for the regular admissions program in later years.50 175 Davis clearly could conclude that the serious and persistent underrepresentation of minorities in medicine depicted by these statistics is the result of handicaps under which minority applicants labor as a consequence of a background of deliberate, purposeful discrimination against minorities in education and in society generally, as well as in the medical profession. From the inception of our national life, Negroes have been subjected to unique legal disabilities impairing access to equal educational opportunity. Under slavery, penal sanctions were imposed upon anyone attempting to educate Negroes.51 After enactment of the Fourteenth Amendment the States continued to deny Negroes equal educational opportunity, enforcing a strict policy of segregation that itself stamped Negroes as inferior, Brown I, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), that relegated minorities to inferior educational institutions,52 and that denied them intercourse in the mainstream of professional life necessary to advancement. See Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950). Segregation was not limited to public facilities, moreover, but was enforced by criminal penalties against private action as well. Thus, as late as 1908, this Court enforced a state criminal conviction against a private college for teaching Negroes together with whites. Berea College v. Kentucky, 211 U.S. 45, 29 S.Ct. 33, 53 L.Ed. 81. See also Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). 176 Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), gave explicit recognition to the fact that the habit of discrimination and the cultural tradition of race prejudice cultivated by centuries of legal slavery and segregation were not immediately dissipated when Brown I, supra, announced the constitutional principle that equal educational opportunity and participation in all aspects of American life could not be denied on the basis of race. Rather, massive official and private resistance prevented, and to a lesser extent still prevent , attainment of equal opportunity in education at all levels and in the professions. The generation of minority students applying to Davis Medical School since it opened in 1968—most of whom were born before or about the time Brown I was decided—clearly have been victims of this discrimination. Judicial decrees recognizing discrimination in public education in California testify to the fact of widespread discrimination suffered by California-born minority applicants;53 many minority group members living in California, moreover, were born and reared in school districts in Southern States segregated by law.54 Since separation of school-children by race "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone," Brown I, supra, 347 U.S., at 494, 74 S.Ct., at 691, the conclusion is inescapable that applicants to medical school must be few indeed who endured the effects of de jure segregation, the resistance to Brown I, or the equally debilitating pervasive private discrimination fostered by our long history of official discrimination, cf. Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), and yet come to the starting line with an education equal to whites.55 177 Moreover, we need not rest solely on our own conclusion that Davis had sound reason to believe that the effects of past discrimination were handicapping minority applicants to the Medical School, because the Department of Health, Education, and Welfare, the expert agency charged by Congress with promulgating regulations enforcing Title VI of the Civil Rights Act of 1964, see supra, at 341-343, has also reached the conclusion that race may be taken into account in situations where a failure to do so would limit participation by minorities in federally funded programs, and regulations promulgated by the Department expressly contemplate that appropriate race-conscious programs may be adopted by universities to remedy unequal access to university programs caused by their own or by past societal discrimination. See supra, at 344-345, discussing 45 CFR §§ 80.3(b)(6)(ii) and 80.5(j) (1971). It cannot be questioned that, in the absence of the special admissions program, access of minority students to the Medical School would be severely limited and, accordingly, race-conscious admissions would be deemed an appropriate response under these federal regulations. Moreover, the Department's regulatory policy is not one that has gone unnoticed by Congress. See supra, at 346-347. Indeed, although an amendment to an appropriations bill was introduced just last year that would have prevented the Secretary of Health, Education, and Welfare from mandating race-conscious programs in university admissions, proponents of this measure, significantly, did not question the validity of voluntary implementation of race-conscious admissions criteria. See ibid. In these circumstances, the conclusion implicit in the regulations—that the lingering effects of past discrimination continue to make race-conscious remedial programs appropriate means for ensuring equal educational opportunity in universities—deserves considerable judicial deference. See, e. g., Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966); UJO, 430 U.S., at 175-178, 97 S.Ct., at 1014-1016 (opinion concurring in part).56 C 178 The second prong of our test—whether the Davis program stigmatizes any discrete group or individual and whether race is reasonably used in light of the program's objectives—is clearly satisfied by the Davis program. 179 It is not even claimed that Davis' program in any way operates to stigmatize or single out any discrete and insular, or even any identifiable, nonminority group. Nor will harm comparable to that imposed upon racial minorities by exclusion or separation on grounds of race be the likely result of the program. It does not, for example, establish an exclusive preserve for minority students apart from and exclusive of whites. Rather, its purpose is to overcome the effects of segregation by bringing the races together. True, whites are excluded from participation in the special admissions program, but this fact only operates to reduce the number of whites to be admitted in the regular admissions program in order to permit admission of a reasonable percentage—less than their proportion of the California population57—of otherwise underrepresented qualified minority applicants.58 180 Nor was Bakke in any sense stamped as inferior by the Medical School's rejection of him. Indeed, it is conceded by all that he satisfied those criteria regarded by the school as generally relevant to academic performance better than most of the minority members who were admitted. Moreover, there is absolutely no basis for concluding that Bakke's rejection as a result of Davis' use of racial preference will affect him throughout his life in the same way as the segregation of the Negro schoolchildren in Brown I would have affected them. Unlike discrimination against racial minorities, the use of racial preferences for remedial purposes does not inflict a pervasive injury upon individual whites in the sense that wherever they go or whatever hey do there is a significant likelihood that they will be treated as second-class citizens because of their color. This distinction does not mean that the exclusion of a white resulting from the preferential use of race is not sufficiently serious to require justification; but it does mean that the injury inflicted by such a policy is not distinguishable from disadvantages caused by a wide range of government actions, none of which has ever been thought impermissible for that reason alone. 181 In addition, there is simply no evidence that the Davis program discriminates intentionally or unintentionally against any minority group which it purports to benefit. The program does not establish a quota in the invidious sense of a ceiling on the number of minority applicants to be admitted. Nor can the program reasonably be regarded as stigmatizing the program's beneficiaries or their race as inferior. The Davis program does not simply advance less qualified applicants; rather, it compensates applicants, who it is uncontested are fully qualified to study medicine, for educational disadvantages which it was reasonable to conclude were a product of state-fostered discrimination. Once admitted, these students must satisfy the same degree requirements as regularly admitted students; they are taught by the same faculty in the same classes; and their performance is evaluated by the same standards by which regularly admitted students are judged. Under these circumstances, their performance and degrees must be regarded equally with the regularly admitted students with whom they compete for standing. Since minority graduates cannot justifiably be regarded as less well qualified than nonminority graduates by virtue of the special admissions program, there is no reasonable basis to conclude that minority graduates at schools using such programs would be stigmatized as inferior by the existence of such programs. D 182 We disagree with the lower courts' conclusion that the Davis program's use of race was unreasonable in light of its objectives. First, as petitioner argues, there are no practical means by which it could achieve its ends in the foreseeable future without the use of race-conscious measures. With respect to any factor (such as poverty or family educational background) that may be used as a substitute for race as an indicator of past discrimination, whites greatly outnumber racial minorities simply because whites make up a far larger percentage of the total population and therefore far outnumber minorities in absolute terms at every socioeconomic level.59 For example, of a class of recent medical school applicants from families with less than $10,000 income, at least 71% were white.60 Of all 1970 families headed by a person not a high school graduate which included related children under 18, 80% were white and 20% were racial minorities.61 Moreover, while race is positively correlated with differences in GPA and MCAT scores, economic disadvantage is not. Thus, it appears that economically disadvantaged whites do not score less well than economically advantaged whites, while economically advantaged blacks score less well than do disadvantaged whites.62 These statistics graphically illustrate that the University's purpose to integrate its classes by compensating for past discrimination could not be achieved by a general preference for the economically disadvantaged or the children of parents of limited education unless such groups were to make up the entire class. 183 Second, the Davis admissions program does not simply equate minority status with disadvantage. Rather, Davis considers on an individual basis each applicant's personal history to determine whether he or she has likely been disadvantaged by racial discrimination. The record makes clear that only minority applicants likely to have been isolated from the mainstream of American life are considered in the special program; other minority applicants are eligible only through the regular admissions program. True, the procedure by which disadvantage is detected is informal, but we have never insisted that educators conduct their affairs through adjudicatory proceedings, and such insistence here is misplaced. A case-by-case inquiry into the extent to which each individual applicant has been affected, either directly or indirectly, by racial discrimination, would seem to be, as a practical matter, virtually impossible, despite the fact that there are excellent reasons for concluding that such effects generally exist. When individual measurement is impossible or extremely impractical, there is nothing to prevent a State from using categorical means to achieve its ends, at least where the category is closely related to the goal. Cf. Gaston County v. United States, 395 U.S. 285, 295-296, 89 S.Ct. 1720, 1725-1726, 23 L.Ed.2d 309 (1969); Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1731, 16 L.Ed.2d 828(1986). And it is clear from our cases that specific proof that a person has been victimized by discrimination is not a necessary predicate to offering him relief where the probability of victimization is great. See Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). E 184 Finally, Davis' special admissions program cannot be said to violate the Constitution simply because it has set aside a predetermined number of places for qualified minority applicants rather than using minority status as a positive factor to be considered in evaluating the applications of disadvantaged minority applicants. For purposes of constitutional adjudication, there is no difference between the two approaches. In any admissions program which accords special consideration to disadvantaged racial minorities, a determination of the degree of preference to be given is unavoidable, and any given preference that results in the exclusion of a white candidate is no more or less constitutionally acceptable than a program such as that at Davis. Furthermore, the extent of the preference inevitably depends on how many minority applicants the particular school is seeking to admit in any particular year so long as the number of qualified minority applicants exceeds that number. There is no sensible, and certainly no constitutional, distinction between, for example, adding a set number of points to the admissions rating of disadvantaged minority applicants as an expression of the preference with the expectation that this will result in the admission of an approximately determined number of qualified minority applicants and setting a fixed number of places for such applicants as was done here.63 185 The "Harvard" program, see ante, at 316-318, as those employing it readily concede, openly and successfully employs a racial criterion for the purpose of ensuring that some of the scarce places in institutions of higher education are allocated to disadvantaged minority students. That the Harvard approach does not also make public the extent of the preference and the precise workings of the system while the Davis program employs a specific, openly stated number, does not condemn the latter plan for purposes of Fourteenth Amendment adjudication. It may be that the Harvard plan is more acceptable t the public than is the Davis "quota." If it is, any State, including California, is free to adopt it in preference to a less acceptable alternative, just as it is generally free, as far as the Constitution is concerned, to abjure granting any racial preferences in its admissions program. But there is no basis for preferring a particular preference program simply because in achieving the same goals that the Davis Medical School is pursuing, it proceeds in a manner that is not immediately apparent to the public. V 186 Accordingly, we would reverse the judgment of the Supreme Court of California holding the Medical School's special admissions program unconstitutional and directing respondent's admission, as well as that portion of the judgment enjoining the Medical School from according any consideration to race in the admissions process. 187 Mr. Justice WHITE. 188 I write separately concerning the question of whether Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., provides for a private cause of action. Four Justices are apparently of the view that such a private cause of action exists, and four Justices assume it for purposes of this case. I am unwilling merely to assume an affirmative answer. If in fact no private cause of action exists, this Court and the lower courts as well are without jurisdiction to consider respondent's Title VI claim. As I see it, if we are not obliged to do so, it is at least advisable to address this threshold jurisdictional issue. See United States v. Griffin, 303 U.S. 226, 229, 58 S.Ct. 601, 602, 82 L.Ed. 764 (1938).1 Furthermore, just as it is inappropriate to address constitutional issues without determining whether statutory grounds urged before us are dispositive, it is at least questionable practice to adjudicate a novel and difficult statutory issue without first considering whether we have jurisdiction to decide it. Consequently, I address the question of whether respondent may bring suit under Title VI. 189 A private cause of action under Title VI, in terms both of the Civil Rights Act as a whole and that Title, would not be "consistent with the underlying purposes of the legislative schem " and would be contrary to the legislative intent. Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975). Title II, 42 U.S.C. § 2000a et seq., dealing with public accommodations, and Title VII, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V), dealing with employment, proscribe private discriminatory conduct that as of 1964 neither the Constitution nor other federal statutes had been construed to forbid. Both Titles carefully provided for private actions as well as for official participation in enforcement. Title III, 42 U.S.C. § 2000b et seq., and Title IV, 42 U.S.C. § 2000c et seq. (1970 ed. and Supp. V), dealing with public facilities and public education, respectively, authorize suits by the Attorney General to eliminate racial discrimination in these areas. Because suits to end discrimination in public facilities and public education were already available under 42 U.S.C. § 1983, it was, of course, unnecessary to provide for private actions under Titles III and IV. But each Title carefully provided that its provisions for public actions would not adversely affect pre-existing private remedies. §§ 2000b-2 and 2000c-8. 190 The role of Title VI was to terminate federal financial support for public and private institutions or programs that discriminated on the basis of race. Section 601, 42 U.S.C. § 2000d, imposed the proscription that no person, on the grounds of race, color, or national origin, was to be excluded from or discriminated against under any program or activity receiving federal financial assistance. But there is no express provision for private actions to enforce Title VI, and it would be quite incredible if Congress, after so carefully attending to the matter of private actions in other Titles of the Act, intended silently to create a private cause of action to enforce Title VI. 191 It is also evident from the face of § 602, 42 U.S.C. § 2000d-1, that Congress intended the departments and agencies to define and to refine, by rule or regulation, the general proscription of § 601, subject only to judicial review of agency action in accordance with established procedures. Section 602 provides for enforcement: Every federal department or agency furnishing financial support is to implement the proscription by appropriate rule or regulation, each of which requires approval by the President. Termination of funding as a sanction for noncompliance is authorized, but only after a hearing and after the failure of voluntary means to secure compliance. Moreover, termination may not take place until the department or agency involved files with the appropriate committees of the House and Senate a full written report of the circumstances and the grounds for such action and 30 days have elapsed thereafter. Judicial review was provided, at least for actions terminating financial assistance. 192 Termination of funding was regarded by Congress as a serious enforcement step, and the legislative history is replete with assurances that it would not occur until every possibility for conciliation had been exhausted.2 To allow a private individual to sue to cut off funds under Title VI would compromise these assurances and short circuit the procedural preconditions provided in Title VI. If the Federal Government may not cut off funds except pursuant to an agency rule, approved by the President, and presented to the appropriate committee of Congress for a layover period, and after voluntary means to achieve compliance have failed, it is inconceivable that Congress intended to permit individuals to circumvent these administrative prerequisites themselves. 193 Furthermore, although Congress intended Title VI to end federal financial support for racially discriminatory policies of not only public but also private institutions and programs, it is extremely unlikely that Congress, without a word indicating that it intended to do so, contemplated creating an independent, private statutory cause of action against all private as well as public agencies that might be in violation of the section. There is no doubt that Congress regarded private litigation as an important tool to attack discriminatory practices. It does not at all follow, however, that Congress anticipated new private actions under Title VI itself. Wherever a discriminatory program was a public undertaking, such as a public school, private remedies were already available under other statutes, and a private remedy under Title VI was unnecessary. Congress was well aware of this fact. Significantly, there was frequent reference to Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (C.A.4 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964), throughout the congressional deliberations. See, e. g., 110 Cong.Rec. 6544 (1964) (Sen. Humphrey). Simkins held that under appropriate circumstances, the operation of a private hospital with "massive use of public funds and extensive state-federal sharing in the common plan" constituted "state action" for the purposes of the Fourteenth Amendment. 323 F.2d, at 967. It was unnecessary, of course, to create a Title VI private action against private discriminators where they were already within the reach of existing private remedies. But when they were not—and Simkins carefully disclaimed holding that "every subvention by the federal or state government automatically involves the beneficiary in 'state action,' " ibid.3—it is difficult to believe that Congress silently created a private remedy to terminate conduct that previously had been entirely beyond the reach of federal law. 194 For those who believe, contrary to my views, that Title VI was intended to create a stricter standard of color blindness than the Constitution itself requires, the result of no private cause of action follows even more readily. In that case Congress must be seen to have banned degrees of discrimination, as well as types of discriminators, not previously reached by law. A Congress careful enough to provide that existing private causes of action would be preserved (in Titles III and IV) would not leave for inference a vast new extension of private enforcement power. And a Congress so exceptionally concerned with the satisfaction of procedural preliminaries before confronting fund recipients with the choice of a cutoff or of stopping discriminating would not permit private parties to pose precisely that same dilemma in a greatly widened category of cases with no procedural requirements whatsoever. 195 Significantly, in at least three instances legislators who played a major role in the passage of Title VI explicitly stated that a private right of action under Title VI does not exist.4 As an "indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one," Cort v. Ash, 422 U.S., at 78, 95 S.Ct., at 2088, clearer statements cannot be imagined, and under Cort, "an explicit purpose to deny such cause of action [is] controlling." Id., at 82, 95 S.Ct., at 2090. Senator Keating, for example, proposed a private "right to sue" for the "person suffering from discrimination"; but the Department of Justice refused to include it, and the Senator acquiesced.5 These are not neutral, ambiguous statements. They indicate the absence of a legislative intent to create a private remedy. Nor do any of these statements make nice distinctions between a private cause of action to enjoin discrimination and one to cut off funds, as Mr. Justice STEVENS and the three Justices who join his opinion apparently would. See post, at 419-420, n. 26. Indeed, it would be odd if they did, since the practical effect of either type of private cause of action would be identical. If private suits to enjoin conduct allegedly violative of § 601 were permitted, recipients of federal funds would be presented with the choice of either ending what the court, rather than the agency, determined to be a discriminatory practice within the meaning of Title VI or refusing federal funds and thereby escaping from the statute's jurisdictional predicate.6 This is precisely the same choice as would confront recipients if suit were brought to cut off funds. Both types of actions would equally jeopardize the administrative processes so carefully structured into the law. 196 This Court has always required "that the inference of such a private cause of action not otherwise authorized by the statute must be consistent with the evident legislative intent and, of course, with the effectuation of the purposes intended to be served by the Act." National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974). See also Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 418-420, 95 S.Ct. 1733, 1737-1738, 44 L.Ed.2d 263 (1975). A private cause of action under Title VI is unable to satisfy either prong of this test. 197 Because each of my colleagues either has a different view or assumes a private cause of action, however, the merits of the Title VI issue must be addressed. My views in that regard, as well as my views with respect to the equal protection issue, are included in the joint opinion that my Brothers BRENNAN, MARSHALL, and BLACKMUN and I have filed.7 198 Mr. Justice MARSHALL. 199 I agree with the judgment of the Court only insofar as it permits a university to consider the race of an applicant in making admissions decisions. I do not agree that petitioner's admissions program violates the Constitution. For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier. 200 * A. 201 Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery. Uprooted from his homeland and thrust into bondage for forced labor, the slave was deprived of all legal rights. It was unlawful to teach him to read; he could be sold away from his family and friends at the whim of his master; and killing or maiming him was not a crime. The system of slavery brutalized and dehumanized both master and slave.1 202 The denial of human rights was etched into the American Colonies' first attempts at establishing self-government. When the colonists determined to seek their independence from England, they drafted a unique document cataloguing their grievances against the King and proclaiming as "self-evident" that "all men are created equal" and are endowed "with certain unalienable Rights," including those to "Life, Liberty and the pursuit of Happiness." The self-evident truths and the unalienable rights were intended, however, to apply only to white men. An earlier draft of the Declaration of Independence, submitted by Thomas Jefferson to the Continental Congress, had included among the charges against the King that 203 "[h]e has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither." Franklin 88. 204 The Southern delegation insisted that the charge be deleted; the colonists themselves were implicated in the slave trade, and inclusion of this claim might have made it more difficult to justify the continuation of slavery once the ties to England were severed. Thus, even as the colonists embarked on a course to secure their own freedom and equality, they ensured perpetuation of the system that deprived a whole race of those rights. 205 The implicit protection of slavery embodied in the Declaration of Independence was made explicit in the Constitution, which treated a slave as being equivalent to three-fifths of a person for purposes of apportioning representatives and taxes among the States. Art. I, § 2. The Constitution also contained a clause ensuring that the "Migration or Importation" of slaves into the existing States would be legal until at least 1808, Art. I, § 9, and a fugitive slave clause requiring that when a slave escaped to another State, he must be returned on the claim of the master, Art. IV, § 2. In their declaration of the principles that were to provide the cornerstone of the new Nation, therefore, the Framers made it plain that "we the people," for whose protection the Constitution was designed, did not include those whose skins were the wrong color. As Professor John Hope Franklin has observed Americans "proudly accepted the challenge and responsibility of their new political freedom by establishing the machinery and safeguards that insured the continued enslavement of blacks." Franklin 100. 206 The individual States likewise established the machinery to protect the system of slavery through the promulgation of the Slave Codes, which were designed primarily to defend the property interest of the owner in his slave. The position of the Negro slave as mere property was confirmed by this Court in Dred Scott v. Sandford, 19 How. 393, 15 L.Ed. 691 (1857), Holding that the Missouri Compromise—which prohibited slavery in the portion of the Louisiana Purchase Territory north of Missouri—was unconstitutional because it deprived slave owners of their property without due process. The Court declared that under the Constitution a slave was property, and "[t]he right to traffic in it, like an ordinary article of merchandise and property, was guarantied to the citizens of the United States . . . ." Id., at 451. The Court further concluded that Negroes were not intended to be included as citizens under the Constitution but were "regarded as beings of an inferior order . . . altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect . . . ." Id., at 407. B 207 The status of the Negro as property as officially erased by his emancipation at the end of the Civil War. But the long-awaited emancipation, while freeing the Negro from slavery, did not bring him citizenship or equality in any meaningful way. Slavery was replaced by a system of "laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value." Slaughter-House Cases, 16 Wall. 36, 70, 21 L.Ed. 394 (1873). Despite the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments, the Negro was systematically denied the rights those Amendments were supposed to secure. The combined actions and inactions of the State and Federal Governments maintained Negroes in a position of legal inferiority for another century after the Civil War. 208 The Southern States took the first steps to re-enslave the Negroes. Immediately following the end of the Civil War, many of the provisional legislatures passed Black Codes, similar to the Slave Codes, which, among other things, limited the rights of Negroes to own or rent property and permitted imprisonment for breach of employment contracts. Over the next several decades, the South managed to disenfranchise the Negroes in spite of the Fifteenth Amendment by various techniques, including poll taxes, deliberately complicated balloting processes, property and literacy qualifications, and finally the white primary. 209 Congress responded to the legal disabilities being imposed in the Southern States by passing the Reconstruction Acts and the Civil Rights Acts. Congress also responded to the needs of the Negroes at the end of the Civil War by establishing the Bureau of Refugees, Freedmen, and Abandoned Lands, better known as the Freedmen's Bureau, to supply food, hospitals, land, and education to the newly freed slaves. Thus, for a time it seemed as if the Negro might be protected from the continued denial of his civil rights and might be relieved of the disabilities that prevented him from taking his place as a free and equal citizen. 210 That time, however, was short-lived. Reconstruction came to a close, and, with the assistance of this Court, the Negro was rapidly stripped of his new civil rights. In the words of C. Vann Woodward: "By narrow and ingenious interpretation [the Supreme Court's] decisions over a period of years had whittled away a great part of the authority presumably given the government for protection of civil rights." Woodward 139. 211 The Court began by interpreting the Civil War Amendments in a manner that sharply curtailed their substantive protections. See, e. g., Slaughter-House Cases, supra; United States v. Reese, 92 U.S. 214, 23 L.Ed. 563 (1876); United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876). Then in the notorious Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883), the Court strangled Congress' efforts to use its power to promote racial equality. In those cases the Court invalidated sections of the Civil Rights Act of 1875 that made it a crime to deny equal access to "inns, public conveyances, theatres and other places of public amusement." Id., at 10, 3 S.Ct., at 20. According to the Court, the Fourteenth Amendment gave Congress the power to proscribe only discriminatory action by the State. The Court ruled that the Negroes who were excluded from public places suffered only an invasion of their social rights at the hands of private individuals, and Congress had no power to remedy that. Id., at 24-25, 3 S.Ct., at 31. "When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state," the Court concluded, "there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws . . . ." Id., at 25, 3 S.Ct., at 31. As Mr. Justice Harlan noted in dissent, however, the Civil War Amendmen § and Civil Rights Acts did not make the Negroes the "special favorite" of the laws but instead "sought to accomplish in reference to that race . . . what had already been done in every State of the Union for the white race—to secure and protect rights belonging to them as freemen and citizens; nothing more." Id., at 61, 3 S.Ct., at 57. 212 The Court's ultimate blow to the Civil War Amendments and to the equality of Negroes came in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). In upholding a Louisiana law that required railway companies to provide "equal but separate" accommodations for whites and Negroes, the Court held that the Fourteenth Amendment was not intended "to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either." Id., at 544, 16 S.Ct., at 1140. Ignoring totally the realities of the positions of the two races, the Court remarked: 213 "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." Id., at 551, 16 S.Ct., at 1143. 214 Mr. Justice Harlan's dissenting opinion recognized the bankruptcy of the Court's reasoning. He noted that the "real meaning" of the legislation was "that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens." Id., at 560, 16 S.Ct., at 1147. He expressed his fear that if like laws were enacted in other States, "the effect would be in the highest degree mischievous." Id., at 563, 16 S.Ct., at 1148. Although slavery would have disappeared, the States would retain the power "to interfere with the full enjoyment of the blessings of freedom; to regulate civil rights, common to all citizens, upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens . . . ." Ibid. 215 The fears of Mr. Justice Harlan were soon to be realized. In the wake of Plessy, many States expanded their Jim Crow laws, which had up until that time been limited primarily to passenger trains and schools. The segregation of the races was extended to residential areas, parks, hospitals, theaters, waiting rooms, and bathrooms. There were even statutes and ordinances which authorized separate phone booths for Negroes and whites, which required that textbooks used by children of one race be kept separate from those used by the other, and which required that Negro and white prostitutes be kept in separate districts. In 1898, after Plessy, the Charlestown News and Courier printed a parody of Jim Crow laws: 216 " 'If there must be Jim Crow cars on the railroads, there should be Jim Crow cars on the street railways. Also on all passenger boats. . . . If there are to be Jim Crow cars, moreover, there should be Jim Crow waiting saloons at all stations, and Jim Crow eating houses. . . . There should be Jim Crow sections of the jury box, and a separate Jim Crow dock and witness stand in every court—and a Jim Crow Bible for colored witnesses to kiss.' " Woodward 68. 217 The irony is that before many years had passed, with the exception of the Jim Crow witness stand, "all the improbable applications of the principle suggested by the editor in derision had been put into practice—down to and including the Jim Crow Bible." Id., at 69. 218 Nor were the laws restricting the rights of Negroes limited solely to the Southern States. In many of the Northern States, the Negro was denied the right to vote, prevented from serving on juries, and excluded from theaters, restaurants, hotels, and inns. Under President Wilson, the Federal Government began to equire segregation in Government buildings; desks of Negro employees were curtained off; separate bathrooms and separate tables in the cafeterias were provided; and even the galleries of the Congress were segregated. When his segregationist policies were attacked, President Wilson responded that segregation was " 'not humiliating but a benefit' " and that he was " 'rendering [the Negroes] more safe in their possession of office and less likely to be discriminated against.' " Kluger 91. 219 The enforced segregation of the races continued into the middle of the 20th century. In both World Wars, Negroes were for the most part confined to separate military units; it was not until 1948 that an end to segregation in the military was ordered by President Truman. And the history of the exclusion of Negro children from white public schools is too well known and recent to require repeating here. That Negroes were deliberately excluded from public graduate and professional schools—and thereby denied the opportunity to become doctors, lawyers, engineers, and the like—is also well established. It is of course true that some of the Jim Crow laws (which the decisions of this Court had helped to foster) were struck down by this Court in a series of decisions leading up to Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). See, e. g., Morgan v. Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317 (1946); Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149 (1950). Those decisions, however, did not automatically end segregation, nor did they move Negroes from a position of legal inferiority to one of equality. The legacy of years of slavery and of years of second-class citizenship in the wake of emancipation could not be so easily eliminated. II 220 The position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment. Measured by any benchmark of comfort or achievement, meaningful equality remains a distant dream for the Negro. 221 A Negro child today has a life expectancy which is shorter by more than five years than that of a white child.2 The Negro child's mother is over three times more likely to die of complications in childbirth,3 and the infant mortality rate for Negroes is nearly twice that for whites.4 The median income of the Negro family is only 60% that of the median of a white family,5 and the percentage of Negroes who live in families with incomes below the poverty line is nearly four times greater than that of whites.6 222 When the Negro child reaches working age, he finds that America offers him significantly less than it offers his white counterpart. For Negro adults, the unemployment rate is twice that of whites,7 and the unemployment rate for Negro teenagers is nearly three times that of white teenagers.8 A Negro male who completes four years of college can expect a median annual income of merely $110 more than a white male who has only a high school diploma.9 Although Negroes represent 11.5% of the population,10 they are only 1.2% of the lawyers, and judges, 2% of the physicians, 2.3% of the dentists, 1.1% of the engineers and 2.6% of the college and university professors.11 223 The relationship between those figures and the history of unequal treatment afforded to the Negro cannot be denied. At every point from birth to death the impact of the past is reflected in the still disfavored position of the Negro. 224 In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order. To fail to do so is to ensure that America will forever remain a divided society. III 225 I do not believe that the Fourteenth Amendment requires us to accept that fate. Neither its history nor our past cases lend any support to the conclusion that a university may not remedy the cumulative effects of society's discrimination by giving consideration to race in an effort to increase the number and percentage of Negro doctors. A. This Court long ago remarked that 226 "in any fair and just construction of any section or phrase of these [Civil War] amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy . . .." Slaughter-House Cases, 16 Wall., at 72. 227 It is plain that the Fourteenth Amendment was not intended to prohibit measures designed to remedy the effects of the Nation's past treatment of Negroes. The Congress that passed the Fourteenth Amendment is the same Congress that passed the 1866 Freedmen's Bureau Act, an Act that provided many of its benefits only to Negroes. Act of July 16, 1866, ch. 200, 14 Stat. 173; see supra, at 391. Although the Freedmen's Bureau legislation provided aid for refugees, thereby including white persons within some of the relief measures, 14 Stat. 174; see also Act of Mar. 3, 1865, ch. 90, 13 Stat. 507, the bill was regarded, to the dismay of many Congressmen, as "solely and entirely for the freedmen, and to the exclusion of all other persons . . .." Cong.Globe, 39th Cong., 1st Sess., 544 (1866) (remarks of Rep. Taylor). See also id., at 634-635 (remarks of Rep. Ritter); id., at App. 78, 80-81 (remarks of Rep. Chanler). Indeed, the bill was bitterly opposed on the ground that it "undertakes to make the negro in some respects . . . superior . . . and gives them favors that the poor white boy in the North cannot get." Id., at 401 (remarks of Sen. McDougall). See also id., at 319 (remarks of Sen. Hendricks); id., at 362 (remarks of Sen. Saulsbury); id., at 397 (remarks of Sen. Willey); id., at 544 (remarks of Rep. Taylor). The bill's supporters defended it—not by rebutting the claim of special treatment—but by pointing to the need for such treatment: 228 "The very discrimination it makes between 'destitute and suffering' negroes, and destitute and suffering white paupers, proceeds upon the distinction that, in the omitted case, civil rights and immunities are already sufficiently protected by the possession of political power, the absence of which in the case provided for necessitates governmental protection." Id., at App. 75 (remarks of Rep. Phelps). 229 Despite the objection to the special treatment the bill would provide for Negroes, it was passed by Congress. Id., at 421, 688. President Johnson vetoed this bill and also a subsequent bill that contained some modifications; one of his principal objections to both bills was that they gave special benefits to Negroes. 8 Messages and Papers of the Presidents 3596, 3599, 3620, 3623 (1897). Rejecting the concerns of the President and the bill's opponents, Congress overrode the President's second veto. Cong.Globe, 39th Cong., 1st Sess., 3842, 3850 (1866). 230 Since the Congress that considered and rejected the objections to the 1866 Freedmen's Bureau Act concerning special relief to Negroes also proposed the Fourteenth Amendment, it is inconceivable that the Fourteenth A endment was intended to prohibit all race-conscious relief measures. It "would be a distortion of the policy manifested in that amendment, which was adopted to prevent state legislation designed to perpetuate discrimination on the basis of race or color." Railway Mail Assn. v. Corsi, 326 U.S. 88, 94, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072 (1945), to hold that it barred state action to remedy the effects of that discrimination. Such a result would pervert the intent of the Framers by substituting abstract equality for the genuine equality the Amendment was intended to achieve. B 231 As has been demonstrated in our joint opinion, this Court's past cases establish the constitutionality of race-conscious remedial measures. Beginning with the school desegregation cases, we recognized that even absent a judicial or legislative finding of constitutional violation, a school board constitutionally could consider the race of students in making school-assignment decisions. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971); McDaniel v. Barresi, 402 U.S. 39, 41, 91 S.Ct. 1287, 1288, 28 L.Ed.2d 582 (1971). We noted, moreover, that a 232 "flat prohibition against assignment of students for the purpose of creating a racial balance must inevitably conflict with the duty of school authorities to disestablish dual school systems. As we have held in Swann, the Constitution does not compel any particular degree of racial balance or mixing, but when past and continuing constitutional violations are found, some ratios are likely to be useful as starting points in shaping a remedy. An absolute prohibition against use of such a device—even as a starting point—contravenes the implicit command of Green v. County School Board, 391 U.S. 430 [88 S.Ct. 1689, 20 L.Ed.2d 716] (1968), that all reasonable methods be available to formulate an effective remedy." Board of Education v. Swann, 402 U.S. 43, 46, 91 S.Ct. 1284, 1286, 28 L.Ed.2d 586 (1971). 233 As we have observed, "[a]ny other approach would freeze the status quo that is the very target of all desegregation processes." McDaniel v. Barresi, supra, 402 U.S. at 41, 91 S.Ct. at 1289. 234 Only last Term, in United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed. 229 (1977), we upheld a New York reapportionment plan that was deliberately drawn on the basis of race to enhance the electoral power of Negroes and Puerto Ricans; the plan had the effect of diluting the electoral strength of the Hasidic Jewish community. We were willing in UJO to sanction the remedial use of a racial classification even though it disadvantaged otherwise "innocent" individuals. In another case last Term, Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977), the Court upheld a provision in the Social Security laws that discriminated against men because its purpose was " 'the permissible one of redressing our society's longstanding disparate treatment of women.' " Id., at 317, 97 S.Ct. at 1195, quotingCalifano v. Goldfarb, 430 U.S. 199, 209 n. 8, 97 S.Ct. 1021, 1028, 51 L.Ed.2d 270 (1977) (plurality opinion). We thus recognized the permissibility of remedying past societal discrimination through the use of otherwise disfavored classifications. 235 Nothing in those cases suggests that a university cannot similarly act to remedy past discrimination.12 It is true that in both UJO and Webster the use of the disfavored classification was predicated on legislative or administrative action, but in neither case had those bodies made findings that there had been constitutional violations or that the specific individuals to be benefited had actually been the victims of discrimination. Rather, the classification in each of those cases was based on a determination that the group was in need of the remedy because of some type of past discrimination. There is thus ample support for the conclusion that a universi y can employ race-conscious measures to remedy past societal discrimination, without the need for a finding that those benefited were actually victims of that discrimination. IV 236 While I applaud the judgment of the Court that a university may consider race in its admissions process, it is more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible. In declining to so hold, today's judgment ignores the fact that for several hundred years Negroes have been discriminated against, not as individuals, but rather solely because of the color of their skins. It is unnecessary in 20th-century America to have individual Negroes demonstrate that they have been victims of racial discrimination; the racism of our society has been so pervasive that none, regardless of wealth or position, has managed to escape its impact. The experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups. It is not merely the history of slavery alone but also that a whole people were marked as inferior by the law. And that mark has endured. The dream of America as the great melting pot has not been realized for the Negro; because of his skin color he never even made it into the pot. 237 These differences in the experience of the Negro make it difficult for me to accept that Negroes cannot be afforded greater protection under the Fourteenth Amendment where it is necessary to remedy the effects of past discrimination. In the Civil Rights Cases, supra, the Court wrote that the Negro emerging from slavery must cease "to be the special favorite of the laws." 109 U.S., at 25, 3 S.Ct., at 31, see supra, at 392. We cannot in light of the history of the last century yield to that view. Had the Court in that decision and others been willing to "do for human liberty and the fundamental rights of American citizenship, what it did . . . for the protection of slavery and the rights of the masters of fugitive slaves," 109 U.S., at 53, 3 S.Ct., at 51 (Harlan, J., dissenting), we would not need now to permit the recognition of any "special wards." 238 Most importantly, had the Court been willing in 1896, in Plessy v. Ferguson, to hold that the Equal Protection Clause forbids differences in treatment based on race, we would not be faced with this dilemma in 1978. We must remember, however, that the principle that the "Constitution is color-blind" appeared only in the opinion of the lone dissenter. 163 U.S., at 559, 16 S.Ct., at 1146. The majority of the Court rejected the principle of color-blindness, and for the next 58 years, from Plessy to Brown v. Board of Education, ours was a Nation where, by law, an individual could be given "special" treatment based on the color of his skin. 239 It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America. For far too long, the doors to those positions have been shut to Negroes. If we are ever to become a fully integrated society, one in which the color of a person's skin will not determine the opportunities available to him or her, we must be willing to take steps to open those doors. I do not believe that anyone can truly look into America's past and still find that a remedy for the effects of that past is impermissible. 240 It has been said that this case involves only the individual, Bakke, and this University. I doubt, however, that there is a computer capable of determining the number of persons and institutions that may be affected by the decision in this case. For example, we are told by the Attorney General of the United States that at least 27 federal agencies have adopted regulations requiring recipients of federal funds to take " 'affirmative action to overcome the effects of conditions which resulted in limiting participation . . . by persons of a particular race, color, or national origin.' " Supplemental Brief for United States as Amicus Curiae 16 (emphasis added). I cannot even guess the number of state and local governments that have set up affirmative-action programs, which may be affected by today's decision. 241 I fear that we have come full circle. After the Civil War our Government started several "affirmative action" programs. This Court in the Civil Rights Cases and Plessy v. Ferguson destroyed the movement toward complete equality. For almost a century no action was taken, and this nonaction was with the tacit approval of the courts. Then we had Brown v. Board of Education and the Civil Rights Acts of Congress, followed by numerous affirmative-action programs. Now, we have this Court again stepping in, this time to stop affirmative-action programs of the type used by the University of California. 242 Mr. Justice BLACKMUN. 243 I participate fully, of course, in the opinion, ante, p. 324, that bears the names of my Brothers BRENNAN, WHITE, MARSHALL, and myself. I add only some general observations that hold particular significance for me, and then a few comments on equal protection. 244 * At least until the early 1970's, apparently only a very small number, less than 2%, of the physicians, attorneys, and medical and law students in the United States were members of what we now refer to as minority groups. In addition, approximately three-fourths of our Negro physicians were trained at only two medical schools. If ways are not found to remedy that situation, the country can never achieve its professed goal of a society that is not race conscious. 245 I yield to no one in my earnest hope that the time will come when an "affirmative action" program is unnecessary and is, in truth, only a relic of the past. I would hope that we could reach this stage within a decade at the most. But the story of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), decided almost a quarter of a century ago, suggests that that hope is a slim one. At some time, however, beyond any period of what some would claim is only transitional inequality, the United States must and will reach a stage of maturity where action along this line is no longer necessary. Then persons will be regarded as persons, and discrimination of the type we address today will be an ugly feature of history that is instructive but that is behind us. 246 The number of qualified, indeed highly qualified, applicants for admission to existing medical schools in the United States far exceeds the number of places available. Wholly apart from racial and ethnic considerations, therefore, the selection process inevitably results in the denial of admission to many qualified persons, indeed, to far more than the number of those who are granted admission. Obviously, it is a denial to the deserving. This inescapable fact is brought into sharp focus here because Allan Bakke is not himself charged with discrimination and yet is the one who is disadvantaged, and because the Medical School of the University of California at Davis itself is not charged with historical discrimination. 247 One theoretical solution to the need for more minority members in higher education would be to enlarge our graduate schools. Then all who desired and were qualified could enter, and talk of discrimination would vanish. Unfortunately, this is neither feasible nor realistic. The vast resources that apparently wou d be required simply are not available. And the need for more professional graduates, in the strict numerical sense, perhaps has not been demonstrated at all. 248 There is no particular or real significance in the 84-16 division at Davis. The same theoretical, philosophical, social, legal, and constitutional considerations would necessarily apply to the case if Davis' special admissions program had focused on any lesser number, that is, on 12 or 8 or 4 places or, indeed, on only 1. 249 It is somewhat ironic to have us so deeply disturbed over a program where race is an element of consciousness, and yet to be aware of the fact, as we are, that institutions of higher learning, albeit more on the undergraduate than the graduate level, have given conceded preferences up to a point to those possessed of athletic skills, to the children of alumni, to the affluent who may bestow their largess on the institutions, and to those having connections with celebrities, the famous, and the powerful. 250 Programs of admission to institutions of higher learning are basically a responsibility for academicians and for administrators and the specialists they employ. The judiciary, in contrast, is ill-equipped and poorly trained for this. The administration and management of educational institutions are beyond the competence of judges and are within the special competence of educators, provided always that the educators perform within legal and constitutional bounds. For me, therefore, interference by the judiciary must be the rare exception and not the rule. II 251 I, of course, accept the propositions that (a) Fourteenth Amendment rights are personal; (b) racial and ethnic distinctions where they are stereotypes are inherently suspect and call for exacting judicial scrutiny; (c) academic freedom is a special concern of the First Amendment; and (d) the Fourteenth Amendment has expanded beyond its original 1868 concept and now is recognized to have reached a point where, as Mr. Justice POWELL states, ante, at 293, quoting from the Court's opinion in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 296, 96 S.Ct. 2574, 2586, 49 L.Ed.2d 493 (1976), it embraces a "broader principle." 252 This enlargement does not mean for me, however, that the Fourteenth Amendment has broken away from its moorings and its original intended purposes. Those original aims persist. And that, in a distinct sense, is what "affirmative action," in the face of proper facts, is all about. If this conflicts with idealistic equality, that tension is original Fourteenth Amendment tension, constitutionally conceived and constitutionally imposed, and it is part of the Amendment's very nature until complete equality is achieved in the area. In this sense, constitutional equal protection is a shield. 253 I emphasize in particular that the decided cases are not easily to be brushed aside. Many, of course, are not precisely on point, but neither are they off point. Racial factors have been given consideration in the school desegregation cases, in the employment cases, in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), and in United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). To be sure, some of these may be "distinguished" on the ground that victimization was directly present. But who is to say that victimization is not present for some members of today's minority groups, although it is of a lesser and perhaps different degree. The petitioners in United Jewish Organizations certainly complained bitterly of their reapportionment treatment, and I rather doubt that they regard the "remedy" there imposed as one that was "to improve" the group's ability to participate, as Mr. Justice POWELL describes it, ante, at 305. And surely in Lau v. Nichols we looked to ethnicity. 254 I am not convinced, as Mr. Justice POWELL seems to be, that the difference between the Davis program and the one employed by Harvard is very profound or cons itutionally significant. The line between the two is a thin and indistinct one. In each, subjective application is at work. Because of my conviction that admission programs are primarily for the educators, I am willing to accept the representation that the Harvard program is one where good faith in its administration is practiced as well as professed. I agree that such a program, where race or ethnic background is only one of many factors, is a program better formulated than Davis' two-track system. The cynical, of course, may say that under a program such as Harvard's one may accomplish covertly what Davis concedes it does openly. I need not go that far, for despite its two-track aspect, the Davis program, for me, is within constitutional bounds, though perhaps barely so. It is surely free of stigma, and, as in United Jewish Organizations, I am not willing to infer a constitutional violation. 255 It is worth noting, perhaps, that governmental preference has not been a stranger to our legal life. We see it in veterans' preferences. We see it in the aid-to-the-handicapped programs. We see it in the progressive income tax. We see it in the Indian programs. We may excuse some of these on the ground that they have specific constitutional protection or, as with Indians, that those benefited are wards of the Government. Nevertheless, these preferences exist and may not be ignored. And in the admissions field, as I have indicated, educational institutions have always used geography, athletic ability, anticipated financial largess, alumni pressure, and other factors of that kind. 256 I add these only as additional components on the edges of the central question as to which I join my Brothers BRENNAN, WHITE, and MARSHALL in our more general approach. It is gratifying to know that the Court at least finds it constitutional for an academic institution to take race and ethnic background into consideration as one factor, among many, in the administration of its admissions program. I presume that that factor always has been there, though perhaps not conceded or even admitted. It is a fact of life, however, and a part of the real world of which we are all a part. The sooner we get down the road toward accepting and being a part of the real world, and not shutting it out and away from us, the sooner will these difficulties vanish from the scene. 257 I suspect that it would be impossible to arrange an affirmative-action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot—we dare not let the Equal Protection Clause perpetuate racial supremacy. 258 So the ultimate question, as it was at the beginning of this litigation, is: Among the qualified, how does one choose? 259 A long time ago, as time is measured for this Nation, a Chief Justice, both wise and farsighted, said: 260 "In considering this question, then, we must never forget, that it is a constitution we are expounding." McCulloch v. Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579 (1819) (emphasis in original). 261 In the same opinion, the Great Chief Justice further observed: 262 "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." Id., at 421. 263 More recently, one destined to become a Justice of this Court observed: 264 "The great generalities of the constitution have a content and a significance that vary from age to age." B. Cardozo, The Nature of the Judicial Process 17 (1921). 265 And an educator who became a President of the United States said: 266 "But the Constitution of the United States is not a mere lawyers' document: it is a veh cle of life, and its spirit is always the spirit of the age." W. Wilson, Constitutional Government in the United States 69 (1911). 267 These precepts of breadth and flexibility and ever-present modernity are basic to our constitutional law. Today, again, we are expounding a Constitution. The same principles that governed McCulloch's case in 1819 govern Bakke's case in 1978. There can be no other answer. 268 Mr. Justice STEVENS, with whom THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice REHNQUIST join, concurring in the judgment in part and dissenting in part. 269 It is always important at the outset to focus precisely on the controversy before the Court.1 It is particularly important to do so in this case because correct identification of the issues will determine whether it is necessary or appropriate to express any opinion about the legal status of any admissions program other than petitioner's. 270 * This is not a class action. The controversy is between two specific litigants. Allan Bakke challenged petitioner's special admissions program, claiming that it denied him a place in medical school because of his race in violation of the Federal and California Constitutions and of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. The California Supreme Court upheld his challenge and ordered him admitted. If the state court was correct in its view that the University's special program was illegal, and that Bakke was therefore unlawfully excluded from the Medical School because of his race, we should affirm its judgment, regardless of our views about the legality of admissions programs that are not now before the Court. 271 The judgment as originally entered by the trial court contained four separate paragraphs, two of which are of critical importance.2 Paragraph 3 declared that the University's special admissions program violated the Fourteenth Amendment, the State Constitution, and Title VI. The trial court did not order the University to admit Bakke because it concluded that Bakke had not shown that he would have been admitted if there had been no special program. Instead, in paragraph 2 of its judgment it ordered the University to consider Bakke's application for admission without regard to his race or the race of any other applicant. The order did not include any broad prohibition against any use of race in the admissions process; its terms were clearly limited to the University's consideration of Bakke's application.3 Because the University has since been ordered to admit Bakke paragraph 2 of the trial court's order no longer has any significance. 272 The California Supreme Court, in a holding that is not challenged, ruled that the trial court incorrectly placed the burden on Bakke of showing that he would have been admitted in the absence of discrimination. The University then conceded "that it [could] not meet the burden of proving that the special admissions program did not result in Mr. Bakke's failure to be admitted."4 Accordingly, the California Supreme Court directed the trial court to enter judgment ordering Bakke's admission.5 Since that order superseded paragraph 2 of the trial court's judgment, there is no outstanding injunction forbidding any consideration of racial criteria in processing applications. 273 It is therefore perfectly clear that the question whether race can ever be used as a factor in an admissions decision is not an issue in this case, and that discussion of that issue is inappropriate.6 II 274 Both petitioner and respondent have asked us to determine the legality of the University's special admissions program by reference to the Constitution. Our settled practice, however, is to avoid the decision of a constitutional issue if a case can be fairly decided on a statutory ground. "If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable." Spector Motor Co. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101.7 The more important the issue, the more force there is to this doctrine.8 In this case, we are presented with a constitutional question of undoubted and unusual importance. Since, however, a dispositive statutory claim was raised at the very inception of this case, and squarely decided in the portion of the trial court judgment affirmed by the California Supreme Court, it is our plain duty to confront it. Only if petitioner should prevail on the statutory issue would it be necessary to decide whether the University's admissions program violated the Equal Protection Clause of the Fourteenth Amendment. III 275 Section 601 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d, provides: 276 "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 277 The University, through its special admissions policy, excluded Bakke from participation in its program of medical education because of his race. The University also acknowledges that it was, and still is, receiving federal financial assistance.9 The plain language of the statute therefore requires affirmance of the judgment below. A different result cannot be justified unless that language misstates the actual intent of the Congress that enacted the statute or the statute is not enforceable in a private action. Neither conclusion is warranted. 278 Title VI is an integral part of the far-reaching Civil Rights Act of 1964. No doubt, when this legislation was being debated, Congress was not directly concerned with the legality of "reverse discrimination" or "affirmative action" programs. Its attention was focused on the problem at hand, the "glaring . . . discrimination against Negroes which exists throughout our Nation,"10 and, with respect to Title VI, the federal funding of segregated facilities.11 The genesis of the legislation, however, did not limit the breadth of the solution adopted. Just as Congress responded to the problem of employment discrimination by enacting a provision that protects all races, see McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 279, 96 S.Ct. 2574, 2578, 49 L.Ed. 493,12 so, too, its answer to the pro lem of federal funding of segregated facilities stands as a broad prohibition against the exclusion of any individual from a federally funded program "on the ground of race." In the words of the House Report, Title VI stands for "the general principle that no person . . . be excluded from participation . . . on the ground of race, color, or national origin under any program or activity receiving Federal financial assistance." H.R.Rep.No.914, 88th Cong., 1st Sess., pt. 1, p. 25 (1963), U.S.Code Cong. & Admin.News 1964, p. 2401 (emphasis added). This same broad view of Title VI and § 601 was echoed throughout the congressional debate and was stressed by every one of the major spokesmen for the Act.13 279 Petitioner contends, however, that exclusion of applicants on the basis of race does not violate Title VI if the exclusion carries with it no racial stigma. No such qualification or limitation of § 601's categorical prohibition of "exclusion" is justified by the statute or its history. The language of the entire section is perfectly clear; the words that follow "excluded from" do not modify or qualify the explicit outlawing of any exclusion on the stated grounds. 280 The legislative history reinforces this reading. The only suggestion that § 601 would allow exclusion of nonminority applicants came from opponents of the legislation and then only by way of a discussion of the meaning of the word "discrimination."14 The opponents feared that the term "discrimination" would be read as mandating racial quotas and "racially balanced" colleges and universities, and they pressed for a specific definition of the term in order to avoid this possibility.15 In response, the proponents of the legislation gave repeated assurances that the Act would be "colorblind" in its application.16 Senator Humphrey, the Senate floor manager for the Act, expressed this position as follows: 281 "[T]he word 'discrimination' has been used in many a court case. What it really means in the bill is a distinction in treatment . . . given to different individuals because of their different race, religion or national origin. . . . 282 "The answer to this question [what was meant by 'discrimination'] is that if race is not a factor, we do not have to worry about discrimination because of race. . . . The Internal Revenue Code does not provide that colored people do not have to pay taxes, or that they can pay their taxes 6 months later than everyone else." 110 Cong.Rec. 5864 (1964). 283 "[I]f we started to treat Americans as Americans, not as fat ones, thin ones, short ones, tall ones, brown ones, green ones, yellow ones, or white ones, but as Americans. If we did that we would not need to worry about discrimination." Id., at 5866. 284 In giving answers such as these, it seems clear that the proponents of Title VI assumed that the Constitution itself required a colorblind standard on the part of government,17 but that does not mean that the legislation only codifies an existing constitutional prohibition. The statutory prohibition against discrimination in federally funded projects contained in § 601 is more than a simple paraphrasing of what the Fifth or Fourteenth Amendment would require. The Act's proponents plainly considered Title VI consistent with their view of the Constitution and they sought to provide an effective weapon to implement that view.18 As a distillation of what the supporters of the Act believed the Constitution demanded of State and Federal Governments, § 601 has independent force, with language and emphasis in addition to that found in the Constitution.19 285 As with other provisions of the Civil Rights Act, Congress' expression of its policy to end racial discrimination may independently proscribe conduct that the Constitution does not.20 However, we need not decide the congruence—or lack of congruence of the controlling statute and the Constitution since the meaning of the Title VI ban on exclusion is crystal clear: Race cannot be the basis of excluding anyone from participation in a federally funded program. 286 In short, nothing in the legislative history justifies the conclusion that the broad language of § 601 should not be given its natural meaning. We are dealing with a distinct statutory prohibition, enacted at a particular time with particular concerns in mind; neither its language nor any prior interpretation suggests that its place in the Civil Rights Act, won after long debate, is simply that of a constitutional appendage.21 In unmistakable terms the Act prohibits the exclusion of individuals from federally funded programs because of their race.22 As succinctly phrased during the Senate debate, under Title VI it is not "permissible to say 'yes' to one person; but to say 'no' to another person, only because of the color of his skin."23 287 Belatedly, however, petitioner argues that Title VI cannot be enforced by a private litigant. The claim is unpersuasive in the context of this case. Bakke requested injunctive and declaratory relief under Title VI; petitioner itself then joined issue on the question of the legality of its program under Title VI by asking for a declaratory judgment that it was in compliance with the statute.24 Its view during state-court litigation was that a private cause of action does exist under Title VI. Because petitioner questions the availability of a private cause of action for the first time in this Court, the question is not properly before us. See McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. 430, 434, 60 S.Ct. 670, 672, 84 L.Ed. 849. Even if it were, petitioner's original assumption is in accord with the federal courts' consistent interpretation of the Act. To date, the courts, including this Court, have unanimously concluded or assumed that a private action may be maintained under Title VI.25 The United States has taken the same position; in its amicus curiae brief directed to this specific issue, it concluded that such a remedy is clearly available,26 and Congress has repeatedly enacted legislation predicated on the assumption that Title VI may be enforced in a private action.27 The conclusion that an individual may maintain a private cause of action is amply supported in the legislative history of Title VI itself.28 In short, a fair consideration of petitioner's tardy attack on the propriety of Bakke's suit under Title VI requires that it be rejected. 288 The University's special admissions program violated Title VI of the Civil Rights Act of 1964 by excluding Bakke from the Medical School because of his race. It is therefore our duty to affirm the judgment ordering Bakke admitted to the University. 289 Accordingly, I concur in the Court's judgment insofar as it affirms the judgment of the Supreme Court of California. To the extent that it purports to do anything else, I respectfully dissent. * Mr. Justice BRENNAN, Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN join Parts I and V-C of this opinion. Mr. Justice WHITE also joins Part III-A of this opinion. 1 Material distributed to applicants for the class entering in 1973 described the special admissions program as follows: "A special subcommittee of the Admissions Committee, made up of faculty and medical students from minority groups, evaluates applications from economically and/or educationally disadvantaged backgrounds. The applicant may designate on the application form that he or she requests such an evaluation. Ethnic minorities are not categorically considered under the Task Force Program unless they are from disadvantaged backgrounds. Our goals are: 1) A short range goal in the identification and recruitment of potential candidates for admission to medical school in the near future, and 2) Our long-range goal is to stimulate career interest in health professions among junior high and high school students. "After receiving all pertinent information selected applicants will receive a letter inviting them to our School of Medicine in Davis for an interview. The interviews are conducted by at least one faculty member and one student member of the Task Force Committee. Recommendations are then made to the Admissions Committee of the medical school. Some of the Task Force Faculty are also members of the Admissions Committee. "Long-range goals will be approached by meeting with counselors and students of schools with large minority populations, as well as with local youth and adult community groups. "Applications for financial aid are available only after the applicant has been accepted and can only be awarded after registration. Financial aid is available to students in the form of scholarships and loans. In addition to the Regents' Scholarships and President's Scholarship programs, the medical school participates in the Health Professions Scholarship Program, which makes funds available to students who otherwise might not be able to pursue a medical education. Other scholarships and awards are available to students who meet special eligibility qualifications. Medical students are also eligible to participate in the Federally Insured Student Loan Program and the American Medical Association Education and Research Foundation Loan Program. "Applications for Admissions are available from: "Admissions Office School of Medicine University of California Davis, California 95616" Record 195. The letter distributed the following year was virtually identical, except that the third paragraph was omitted. 2 For the 1973 entering class of 100 seats, the Davis Medical School received 2,464 applications. Id., at 117. For the 1974 entering class, 3,737 applications were submitted. Id., at 289. 3 That is, applications were considered and acted upon as they were received, so that the process of filling the class took place over a period of months, with later applications being considered against those still on file from earlier in the year. Id., at 64. 4 The chairman normally checked to see if, among other things, the applicant had been granted a waiver of the school's application fee, which required a means test; whether the applicant had worked during college or interrupted his education to support himself or his family; and whether the applicant was a member of a minority group. Id., at 65-66. 5 For the class entering in 1973, the total number of special applicants was 297, of whom 73 were white. In 1974, 628 persons applied to the special committee, of whom 172 were white. Id., at 133-134. 6 The following table provides a year-by-year comparison of minority admissions at the Davis Medical School: Special Admissions Program General Admissions Total --------------------- ---------------------- ----- Blacks Chicanos Asians Total Blacks Chicanos Asians Total 1970.... 5 3 0 8 0 0 4 4 12 1971.... 4 9 2 15 1 0 8 9 24 1972.... 5 6 5 16 0 0 11 11 27 1973.... 6 8 2 16 0 2 13 15 31 1974.... 6 7 3 16 0 4 5 9 25 Id., at 216-218. Sixteen persons were admitted under the special program in 1974, ibid., but one Asian withdrew before the start of classes, and the vacancy was filled by a candidate from the general admissions waiting list. Brief for Petitioner 4 n. 5. 7 The following table compares Bakke's science grade point average, overall grade point average, and MCAT scores with the average scores of regular admittees and of special admittees in both 1973 and 1974. Record 210, 223, 231, 234: Class Entering in 1973 MCAT (percentiles) Gen. SGPA OGPA Verbal Quantitative Science Infor. Bakke.... 3.44. 3.46 96 94 97 72 Average of regular admittees. 3.51 3.49 81 76 83 69 Average of special admittees. 2.62 2.88 46 24 35 33 Class Entering in 1974 MCAT (Percentiles) Gen. SGPA OGPA Verbal Quantitative Science Infor. Bakke...... 3.44. 3.46 96 94 97 72 Average of regular admittees. 3.36. 3.29 69 67 82 72 Average of special admittees. 2.42. 2.62 34 30 37 18 Applicants admitted under the special program also had benchmark scores significantly lower than many students, including Bakke, rejected under the general admissions program, even though the special rating system apparently gave credit for overcoming "disadvantage." Id., at 181, 388. 8 Prior to the actual filing of the suit, Bakke discussed his intentions with Peter C. Storandt, Assistant to the Dean of Admissions at the Davis Medical School. Id., at 259-269. Storandt expressed sympathy for Bakke's position and offered advice on litigation strategy. Several amici imply that these discussions render Bakke's suit "collusive." There is no indication, however, that Storandt's views were those of the Medical School or that anyone else at the school even was aware of Storandt's correspondence and conversations with Bakke. Storandt is no longer with the University. 9 "[N]or shall any State . . . deny to any person within its jurisdiction the equal protection of the laws." 10 "No special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the Legislature; nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens." This section was recently repealed and its provisions added to Art. I, § 7, of the State Constitution. 11 Section 601 of Title VI, 78 Stat. 252, provides as follows: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 12 Indeed, the University did not challenge the finding that applicants who were not members of a minority group were excluded from consideration in the special admissions process. 18 Cal.3d, at 44, 132 Cal.Rptr., at 687, 553 P.2d, at 1159. 13 Petitioner has not challenged this aspect of the decision. The issue of the proper placement of the burden of proof, then, is not before us. 14 Several amici suggest that Bakke lacks standing, arguing that he never showed that his injury—exclusion from the Medical School—will be redressed by a favorable decision, and that the petitioner "fabricated" jurisdiction by conceding its inability to meet its burden of proof. Petitioner does not object to Bakke's standing, but inasmuch as this charge concerns our jurisdiction under Art. III, it must be considered and rejected. First, there appears to be no reason to question the petitioner's concession. It was not an attempt to stipulate to a conclusion of law or to disguise actual facts of record. Cf. Swift & Co. v. Hocking Valley R. Co., 243 U.S. 281, 37 S.Ct. 287, 61 L.Ed. 722 (1917). Second, even if Bakke had been unable to prove that he would have been admitted in the absence of the special program, it would not follow that he lacked standing. The constitutional element of standing is plaintiff's demonstration of any injury to himself that is likely to be redressed by favorable decision of his claim. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 243 (1975). The trial court found such an injury, apart from failure to be admitted, in the University's decision not to permit Bakke to compete for all 100 places in the class, simply because of his race. Record 323. Hence the constitutional requirements of Art. III were met. The question of Bakke's admission vel non is merely one of relief. Nor is it fatal to Bakke's standing that he was not a "disadvantaged" applicant. Despite the program's purported emphasis on disadvantage, it was a minority enrollment program with a secondary disadvantage element. White disadvantaged students were never considered under the special program, and the University acknowledges that its goal in devising the program was to increase minority enrollment. 15 See, e. g., 110 Cong.Rec. 5255 (1964) (remarks of Sen. Case). 16 E. g., Bossier Parish School Board v. Lemon, 370 F.2d 847, 851-852 (CA5), cert. denied, 388 U.S. 911, 87 S.Ct. 2116, 18 L.Ed.2d 1350 (1967); Natonabah v. Board of Education, 355 F.Supp. 716, 724 (NM 1973); cf. Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1284-1287 (C.A.7 1977) (Title V of Rehabilitation Act of 1973, 29 U.S.C. § 790 et seq. (1976 ed.)); Piascik v. Cleveland Museum of Art, 426 F.Supp. 779, 780 n. 1 (N.D.Ohio 1976) (Title IX of Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (1976 ed.)). 17 Section 602, as set forth in 42 U.S.C. § 2000d-1, reads as follows: "Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or order shall become effective unless and until approved by the President. Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found, or (2) by any other means authorized by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the progra or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report." 18 Several comments in the debates cast doubt on the existence of any intent to create a private right of action. For example, Representative Gill stated that no private right of action was contemplated: "Nowhere in this section do you find a comparable right of legal action for a person who feels he has been denied his rights to participate in the benefits of Federal funds. Nowhere. Only those who have been cut off can go to court and present their claim." 110 Cong.Rec. 2467 (1964). Accord, id., at 7065 (remarks of Sen. Keating); 6562 (remarks of Sen. Kuchel). 19 For example, Senator Humphrey stated as follows: "Racial discrimination or segregation in the administration of disaster relief is particularly shocking; and offensive to our sense of justice and fair play. Human suffering draws no color lines, and the administration of help to the sufferers should not." Id., at 654 . See also id., at 12675 (remarks of Sen. Allott); 6561 (remarks of Sen. Kuchel); 2494, 6047 (remarks of Sen. Pastore). But see id., at 15893 (remarks of Rep. MacGregor); 13821 (remarks of Sen. Saltonstall); 10920 (remarks of Sen. Javits); 5266, 5807 (remarks of Sen. Keating). 20 See, e. g., id., at 7064-7065 (remarks of Sen. Ribicoff); 7054-7055 (remarks of Sen. Pastore); 6543-6544 (remarks of Sen. Humphrey); 2595 (remarks of Rep. Donohue); 2467-2468 (remarks of Rep. Celler); 1643, 2481-2482 (remarks of Rep. Ryan); H.Rep.No.914, 88th Cong., 1st Sess., pt. 2, pp. 24-25 (1963), U.S.Code Cong. & Admin.News 1964, p. 2355. 21 See, e. g., 110 Cong.Rec. 2467 (1964) (remarks of Rep. Lindsay). See also id., at 2766 (remarks of Rep. Matsunaga); 2731-2732 (remarks of Rep. Dawson); 2595 (remarks of Rep. Donohue); 1527-1528 (remarks of Rep. Celler). 22 See, e. g., id., at 12675, 12677 (remarks of Sen. Allott); 7064 (remarks of Sen. Pell); 7057, 7062-7064 (remarks of Sen. Pastore); 5243 (remarks of Sen. Clark). 23 See, e. g., id., at 6052 (remarks of Sen. Johnston); 5863 (remarks of Sen. Eastland); 5612 (remarks of Sen. Ervin); 5251 (remarks of Sen. Talmadge); 1632 (remarks of Rep. Dowdy); 1619 (re arks of Rep. Abernethy). 24 See also id., at 7057, 13333 (remarks of Sen. Ribicoff); 7057 (remarks of Sen. Pastore); 5606-5607 (remarks of Sen. Javits); 5253, 5863-5864, 13442 (remarks of Sen. Humphrey). 25 That issue has generated a considerable amount of scholarly controversy. See, e. g., Ely, The Constitutionality of Reverse Racial Discrimination, 41 U.Chi.L.Rev. 723 (1974); Greenawalt, Judicial Scrutiny of "Benign" Racial Preference in Law School Admissions, 75 Colum.L.Rev. 559 (1975); Kaplan, Equal Justice in an Unequal World: Equality for the Negro, 61 Nw.U.L.Rev. 363 (1966); Karst & Horowitz, Affirmative Action and Equal Protection, 60 Va.L.Rev. 955 (1974); O'Neil, Racial Preference and Higher Education: The Larger Context, 60 Va.L.Rev. 925 (1974); Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, 1974 Sup.Ct.Rev. 1; Redish, Preferential Law School Admissions and the Equal Protection Clause: An Analysis of the Competing Arguments, 22 UCLA L.Rev. 343 (1974); Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role, 42 U.Chi.L.Rev. 653 (1975); Sedler, Racial Pr ference, Reality and the Constitution: Bakke v. Regents of the University of California, 17 Santa Clara L.Rev. 329 (1977); Seeburger, A Heuristic Argument Against Preferential Admissions, 39 U.Pitt.L.Rev. 285 (1977). 26 Petitioner defines "quota" as a requirement which must be met but can never be exceeded, regardless of the quality of the minority applicants. Petitioner declares that there is no "floor" under the total number of minority students admitted; completely unqualified students will not be admitted simply to meet a "quota." Neither is there a "ceiling," since an unlimited number could be admitted through the general admissions process. On this basis the special admissions program does not meet petitioner's definition of a quota. The court below found—and petitioner does not deny—that white applicants could not compete for the 16 places reserved solely for the special admissions program. 18 Cal.3d, at 44, 132 Cal.Rptr., at 687, 553 P.2d, at 1159. Both courts below characterized this as a "quota" system. 27 Moreover, the University's special admissions program involves a purposeful, acknowledged use of racial criteria. This is not a situation in which the classification on its face is racially neutral, but has a disproportionate racial impact. In that situation, plaintiff must establish an intent to discriminate. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264-265, 97 S.Ct. 555, 562-563, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976); see Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). 28 After Carolene Products, the first specific reference in our decisions to the elements of "discreteness and insularity" appears in Minersville School District v. Gobitis, 310 U.S. 586, 606, 60 S.Ct. 1010, 1018, 84 L.Ed. 1375 (1940) (Stone, J., dissenting). The next does not appear until 1970. Oregon v. Mitchell, 400 U.S. 112, 295 n. 14, 91 S.Ct. 260, 349, 27 L.Ed.2d 91 (STEWART, J., concurring in part and dissenting in part). These elements have been relied upon in recognizing a suspect class in only one group of cases, those involving aliens. E. g., Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971). 29 Tussman & tenBroek, The Equal Protection of the Laws, 37 Calif.L.Rev. 341, 381 (1949). 30 M. Jones, American Immigration 177-246 (1960). 31 J. Higham, Strangers in the Land (1955); G. Abbott, The Immigrant and the Community (1917); P. Roberts, The New Immigration 66-73, 86-91, 248-261 (1912). See also E. Fenton, Immigrants and Unions: A Case Study 561-562 (1975). 32 "Members of various religious and ethnic groups, primarily but not exclusively of Eastern, Middle, and Southern European ancestry, such as Jews, Catholics, Italians, Greeks, and Slavic groups, continue to be excluded from executive, middle-management, and other job levels because of discrimination based upon their religion and/or national origin." 41 CFR § 60-50.1(b) (1977). 33 E. g., Roberts, supra n. 31, at 75; Abbott, supra n. 31, at 270-271. See generally n. 31, supra. 34 In the view of Mr. Justice BRENNAN, Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN, the pliable notion of "stigma" is the crucial element in analyzing racial classifications. See, e. g., post, at 361-362. The Equal Protection Clause is not framed in terms of "stigma." Certainly the word has no clearly defined constitutional meaning. It reflects a subjective judgment that is standardless. All state-imposed classifications that rearrange burdens and benefits on the basis of race are likely to be viewed with deep resentment by the individuals burdened. The denial to innocent persons of equal rights and opportunities may outrage those so deprived and therefore may be perceived as invidious. These individuals are likely to find little comfort in the notion that the deprivation they are asked to endure is merely the price of membership in the dominant majority and that its imposition is inspired by the supposedly benign purpose of aiding others. One should not lightly dismiss the inherent unfairness of, and the perception of mistreatment that accompanies, a system of allocating benefits and privileges on the basis of skin color and ethnic origin. Moreover, Mr. Justice BRENNAN, Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN offer no principle for deciding whether preferential classifications reflect a benign remedial purpose or a malevolent stigmatic classification, since they are willing in this case to accept mere post hoc declarations by an isolated state entity—a medical school faculty—unadorned by particularized findings of past discrimination, to establish such a remedial purpose. 35 Professor Bickel noted the self-contradiction of that view: "The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstit tional, inherently wrong, and destructive of democratic society. Now this is to be unlearned and we are told that this is not a matter of fundamental principle but only a matter of whose ox is gored. Those for whom racial equality was demanded are to be more equal than others. Having found support in the Constitution for equality, they now claim support for inequality under the same Constitution." A. Bickel, The Morality of Consent 133 (1975). 36 As I am in agreement with the view that race may be taken into account as a factor in an admissions program, I agree with my Brothers BRENNAN, WHITE, MARSHALL, and BLACKMUN that the portion of the judgment that would proscribe all consideration of race must be reversed. See Part V, infra. But I disagree with much that is said in their opinion. They would require as a justification for a program such as petitioner's, only two findings: (i) that there has been some form of discrimination against the preferred minority groups by "society at large," post, at 2789 (it being conceded that petitioner had no history of discrimination), and (ii) that "there is reason to believe" that the disparate impact sought to be rectified by the program is the "product" of such discrimination: "If it was reasonable to conclude—as we hold that it was—that the failure of minorities to qualify for admission at Davis under regular procedures was due principally to the effects of past discrimination, then there is a reasonable likelihood that, but for pervasive racial discrimination, respondent would have failed to qualify for admission even in the absence of Davis' special admissions program." Post, at 365-366. The breadth of this hypothesis is unprecedented in our constitutional system. The first step is easily taken. No one denies the regrettable fact that there has been societal discrimination in this country against various racial and ethnic groups. The second step, however, involves a speculative leap: but for this discrimination by society at large, Bakke "would have failed to qualify for admission" because Negro applicants—nothing is said about Asians, cf., e. g., post, at 374 n. 57—would have made better scores. Not one word in the record supports this conclusion, and the authors of the opinion offer no st ndard for courts to use in applying such a presumption of causation to other racial or ethnic classifications. This failure is a grave one, since if it may be concluded on this record that each of the minority groups preferred by the petitioner's special program is entitled to the benefit of the presumption, it would seem difficult to determine that any of the dozens of minority groups that have suffered "societal discrimination" cannot also claim it, in any area of social intercourse. See Part IV-B, infra. 37 Mr. Justice Douglas has noted the problems associated with such inquiries: "The reservation of a proportion of the law school class for members of selected minority groups is fraught with . . . dangers, for one must immediately determine which groups are to receive such favored treatment and which are to be excluded, the proportions of the class that are to be allocated to each, and even the criteria by which to determine whether an individual is a member of a favored group. [Cf. Plessy v. Ferguson, 163 U.S. 537, 549, 552, 16 S.Ct. 1138, 1142, 1143, 41 L.Ed. 256 (1896).] There is no assurance that a common agreement can be reached, and first the schools, and then the courts, will be buffeted with the competing claims. The University of Washington included Filipinos, but excluded Chinese and Japanese; another school may limit its program to blacks, or to blacks and Chicanos. Once the Court sanctioned racial preferences such as these, it could not then wash its hands of the matter, leaving it entirely in the discretion of the school, for then we would have effectively overruled Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 620, and allowed imposition of a 'zero' allocation. But what standard is the Court to apply when a rejected applicant of Japanese ancestry brings suit to require the University of Washington to extend the same privileges to his group? The Committee might conclude that the population of Washington is now 2% Japanese, and that Japanese also constitute 2% of the Bar, but that had they not been handicapped by a history of discrimination, Japanese would now constitute 5% of the Bar, or 20%. Or, alternatively, the Court could attempt to assess how grievously each group has suffered from discrimination, and allocate proportions accordingly; if that were the standard the current University of Washington policy would almost surely fall, for there is no Western State which can claim that it has always treated Japanese and Chinese in a fair and evenhanded manner. See, e. g., Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255; Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249. This Court has not sustained a racial classification since the wartime cases of Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194, and Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, involving curfews and relocations imposed upon Japanese-Americans. "Nor obviously will the problem be solved if next year the Law School included only Japanese and Chinese, for then Norwegians and Swedes, Poles and Italians, Puerto Ricans and Hungarians, and all other groups which form this diverse Nation would have just complaints." DeFunis v. Odegaard, 416 U.S. 312, 337-340, 94 S.Ct. 1704, 1716, 1717, 40 L.Ed.2d 164 (1974) (dissenting opinion) (footnotes omitted). 38 R. Dahl, A Preface to Democratic Theory (1956); Posner, supra n. 25, at 27. 39 Petitioner cites three lower court decisions allegedly deviating from this general rule in school desegregation cases: Offermann v. Nitkowski, 378 F.2d 22 (C.A.2 1967); Wanner v. County School Board, 357 F.2d 452 (C.A.4 1966); Springfield School Committee v. Barksdale, 348 F.2d 261 (C.A.1 1965). Of these, Wanner involved a school system held to have been de jure segregated and enjoined from maintaining segregation; racial districting was deemed necessary. 357 F.2d, at 454. Cf. United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). In Barksdale and Offermann, courts did approve voluntary districting designed to eliminate discriminatory attendance patterns. In neither, however, was there any showing that the school board planned extensive pupil transportation that might threaten liberty or privacy interests. See Keyes v. School District No. 1, 413 U.S. 189, 240-250, 93 S.Ct. 2686, 2713, 2718, 37 L.Ed.2d 548 (1973) (POWELL, J., concurring in part and dissenting in part). Nor were white students deprived of an equal opportunity for education. Respondent's position is wholly dissimilar to that of a pupil bused from his neighborhood school to a comparable school in another neighborhood in compliance with a desegregation decree. Petitioner did not arrange for respondent to attend a different medical school in order to desegregate Davis Medical School; instead, it denied him admission and may have deprived him altogether of a medical education. 40 Every decision upholding the requirement of preferential hiring under the authority of Exec. Order No. 11246, 3 CFR 339 (1964-1965 Comp.), has emphasized the existence of previous discrimination as a predicate for the imposition of a preferential remedy. Contractors Association of Eastern Pennsylvania; Southern Illinois Builders Assn. v. Ogilvie, 471 F.2d 680 (C.A.7 1972); Joyce v. McCrane, 320 F.Supp. 1284 (NJ 1970); Weiner v. Cuyahoga Community College District, 19 Ohio St.2d 35, 249 N.E.2d 907, cert. denied, 396 U.S. 1004, 90 S.Ct. 554, 24 L.Ed.2d 495 (1970). See also Rosetti Contracting Co. v. Brennan, 508 F.2d 1039, 1041 (C.A.7 1975); Associated General Contractors of Massachusetts, Inc. v. Altshuler, 490 F.2d 9 (C.A.1 1973), cert. denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974); Northeast Constr. Co. v. Romney, 157 U.S.App.D.C. 381, 383, 390, 485 F.2d 752, 754, 761 (1973). 41 This case does not call into question congressionally authorized administrative actions, such as consent decrees under Title VII or approval of reapportionment plans under § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1970 ed., Supp. V). In such cases, there has been detailed legislative consideration of the various indicia of previous constitutional or statutory violations, e. g., South Carolina v. Katzenbach, 383 U.S. 301, 308-310, 86 S.Ct. 803, 808-809, 15 L.Ed.2d 769 (1966) (§ 5), and particular administrative bodies have been charged with monitoring various activities in order to detect such violations and formulate appropriate remedies. See Hampton v. Mow Sun Wong, 426 U.S. 88, 103, 96 S.Ct. 1895, 1905, 48 L.Ed.2d 495 (1976). Furthermore, we are not here presented with an occasion to review legislation by Congress pursuant to its powers under § 2 of the Thirteenth Amendment and § 5 of the Fourteenth Amendment to remedy the effects of prior discrimination. Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). We have previously recognized the special competence of Congress to make findings with respect to the effects of identified past discrimination and its discretionary authority to take appropriate remedial measures. 42 Petitioner also cites our decision in Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), for the proposition that the State may prefer members of traditionally disadvantaged groups. In Mancari, we approved a hiring preference for qualified Indians in the Bureau of Indian Affairs of the Department of the Interior (BIA). We observed in that case, however, that the legal status of the BIA is sui generis. Id., at 554, 94 S.Ct., at 2484. Indeed, we found that the preference was not racial at all, but "an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent . . . groups . . . whose lives and activities are governed by the BIA in a unique fashion. ' Ibid. 43 A number of distinct subgoals have been advanced as falling under the rubric of "compensation for past discrimination." For example, it is said that preferences for Negro applicants may compensate for harm done them personally, or serve to place them at economic levels they might have attained but for discrimination against their forebears. Greenawalt, supra n. 25, at 581-586. Another view of the "compensation" goal is that it serves as a form of reparation by the "majority" to a victimized group as a whole. B. Bittker, The Case for Black Reparations (1973). That justification for racial or ethnic preference has been subjected to much criticism. E. g., Greenawalt, supra n. 25, at 581; Posner, supra, n. 25 at 16-17, and n. 33. Finally, it has been argued that ethnic preferences "compensate" the group by providing examples of success whom other members of the group will emulate, thereby advancing the group's interest and society's interest in encouraging new generations to overcome the barriers and frustrations of the past. Redish, supra n. 25, at 391. For purposes of analysis these subgoals need not be considered separately. Racial classifications in admissions conceivably could serve a fifth purpose, one which petitioner does not articulate: fair appraisal of each individual's academic promise in the light of some cultural bias in grading or testing procedures. To the extent that race and ethnic background were considered only to the extent of curing established inaccuracies in predicting academic performance, it might be argued that there is no "preference" at all. Nothing in this record, however, suggests either that any of the quantitative factors considered by the Medical School were culturally biased or that petitioner's special admissions program was formulated to c rrect for any such biases. Furthermore, if race or ethnic background were used solely to arrive at an unbiased prediction of academic success, the reservation of fixed numbers of seats would be inexplicable. 44 Mr. Justice BRENNAN, Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN misconceive the scope of this Court's holdings under Title VII when they suggest that "disparate impact" alone is sufficient to establish a violation of that statute and, by analogy, other civil rights measures. See post, at 363-366, and n. 42. That this was not the meaning of Title VII was made quite clear in the seminal decision in this area, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971): "Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification." Id., at 431, 91 S.Ct., at 853 (emphasis added). Thus, disparate impact is a basis for relief under Title VII only if the practice in question is not founded on "business necessity," ibid., or lacks "a manifest relationship to the employment n question," id., at 432, 91 S.Ct., at 854. See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803, 805-806, 93 S.Ct. 1817, 1824, 1825, 1826, 36 L.Ed.2d 668 (1973). Nothing in this record —as opposed to some of the general literature cited by Mr. Justice BRENNAN, Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN—even remotely suggests that the disparate impact of the general admissions program at Davis Medical School, resulting primarily from the sort of disparate test scores and grades set forth in n. 7, supra, is without educational justification. Moreover, the presumption in Griggs —that disparate impact without any showing of business justification established the existence of discrimination in violation of the statute—was based on legislative determinations, wholly absent here, that past discrimination had handicapped various minority groups to such an extent that disparate impact could be traced to identifiable instances of past discrimination: "[Congress sought] to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices." Griggs, supra, 401 U.S., at 429-430, 91 S.Ct., at 853. See, e. g., H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 2, p. 26 (1963) ("Testimony supporting the fact of discrimination in employment is overwhelming"). See generally Vaas, Title VII: The Legislative History, 7 B.C.Ind. & Com.L.Rev. 431 (1966). The Court emphasized that "the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group." 401 U.S., at 430-431, 91 S.Ct., at 853. Indeed, § 703(j) of the Act makes it clear that preferential treatment for an individual or minority group to correct an existing "imbalance" may not be required under Title VII. 42 U.S.C. § 2000e-2(j). Thus, Title VII principles support the proposition that findings of identified discrimination must precede the fashioning of remedial measures embodying racial classifications. 45 For example, the University is unable to explain its selection of only the four favored groups—Negroes, Mexican-Americans, American-Indians, and Asians—for preferential treatment. The inclusion of the last group is especially curious in light of the substantial numbers of Asians admitted through the regular admissions process. See also n. 37, supra. 46 The only evidence in the record with respect to such underservice is a newspaper article. Record 473. 47 It is not clear that petitioner's two-track system, even if adopted throughout the country, would substantially increase representation of blacks in the medical profession. That is the finding of a recent study by Sleeth & Mishell, Black Under-Representation in United States Medical Schools, 297 New England J. of Med. 1146 (1977). Those authors maintain that the cause of black underrepresentation lies in the small size of the national pool of qualified black applicants. In their view, this problem is traceable to the poor premedical experiences of black undergraduates, and can be remedied effectively only by developing remedial programs for black students before they enter college. 48 The president of Princeton University has described some of the benefits derived from a diverse student body: "[A] great deal of learning occurs informally. It occurs through interactions among students of both sexes; of different races, religions, and backgrounds; who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world. As a wise graduate of ours observed in commenting on this aspect of the educational process, 'People do not learn very much when they are surrounded only by the likes of themselves.' * * * * * "In the nature of things, it is hard to know how, and when, and even if, this informal 'learning through diversity' actually occurs. It does not occur for everyone. For many, however, the unplanned, casual encounters with roommates, fellow sufferers in an organic chemistry class, student workers in the library, teammates on a basketball squad, or other participants in class affairs or student government can be subtle and yet powerful sources of improved understanding and personal growth." Bowen, Admissions and the Relevance of Race, Princeton Alumni Weekly 7, 9 (Sept. 26, 1977). 49 Graduate admissions decisions, like those at the undergraduate level, are concerned with "assessing the potential contributions to the society of each individual candidate following his or her graduation—contributions defined in the broadest way to include the doctor and the poet, the most active participant in business or government affairs and the keenest critic of all things organized, the solitary scholar and the concerned parent." Id., at 10. 50 See Manning, The Pursuit of Fairness in Admissions to Higher Education, in Carnegie Council on Policy Studies in Higher Education, Selective Admissions in Higher Education 19, 57-59 (1977). 51 The admissions program at Princeton has been described in similar terms: "While race is not in and of itself a consideration in determining basic qualifications, and while there are obviously significant differences in background and experience among applicants of every race, in some situations race can be helpful information in enabling the admission officer to understand more fully what a particular candidate has accomplished—and against what odds. Similarly, such factors as family circumstances and previous educational opportunities may be relevant, either in conjunction with race or ethnic background (with which they may be associated) or on their own." Bowen, supra n. 48, at 8-9. For an illuminating discussion of such flexible admissions systems, see Manning, supra n. 50, at 57-59. 52 The denial to respondent of this right to individualized consideration without regard to his race is the principal evil of petitioner's special admissions program. Nowhere in the opinion of Mr. Justice BRENNAN, Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN is this denial even addressed. 53 Universities, like the prosecutor in Swain, may make individualized decisions, in which ethnic background plays a part, under a presumption of legality and legitimate educational purpose. So long as the university proceeds on an individualized, case-by-case basis, there is no warrant for judicial interference in the academic process. If an applicant can establish that the institution does not adhere to a policy of individual comparisons, or can show that a systematic exclusion of certain groups results, the presumption of legality might be overcome, creating the necessity of proving legitimate educational purpose. There also are strong policy reasons that correspond to the constitutional distinction between petitioner's preference program and one that assures a measure of competition among all applicants. Petitioner's program will be viewed as inherently unfair by the public generally as well as by applicants for admission to state universities. Fairness in individual competition for opportunities, especially those provided by the State, is a widely cherished American ethic. Indeed, in a broader sense, an underlying assumption of the rule of law is the worthiness of a system of justice based on fairness to the individual. As Mr. Justice Frankfurter declared in another connection, "[j]ustice must satisfy the appearance of justice." Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954). 54 There is no occasion for remanding the case to permit petitioner to reconstruct what might have happened if it had been operating the type of program described as legitimate in Part V, supra. Cf. Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 284-287, 97 S.Ct. 568, 575-576, 50 L.Ed.2d 471 (1977). In Mt. Healthy, there was considerable doubt whether protected First Amendment activity had been the "but for" cause of Doyle's protested discharge. Here, in contrast, there is no question as to the sole reason for respondent's rejection—purposeful racial discrimination in the form of the special admissions program. Having injured respondent solely on the basis of an unlawful classification, petitioner cannot now hypothesize that it might have employed lawful means of achieving the same result. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S., at 265-266, 97 S.Ct., at 563-564. No one can say how—or even if petitioner would have operated its admissions process if it had known that legitimate alternatives were available. Nor is there a record revealing that legitimate alternative grounds for the decision existed, as there was in Mt. Healthy. In sum, a remand would result in fictitious recasting of past conduct. 55 This statement appears in the Appendix to the Brief for Columbia University, Harvard University, Stanford University, and the University of Pennsylvania, as Amici Curiae. 1 We also agree with Mr. Justice POWELL that a plan like the "Harvard" plan, see ante, at 316-318, is constitutional under our approach, at least so long as the use of race to achieve an integrated student body is necessitated by the lingering effects of past discrimination. 2 See Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). 3 New Orleans City Park Improvement Assn. v. Detiege, 358 U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46 (1958); Muir v. Louisville Park Theatrical Assn., 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112 (1954); Mayor of Baltimore v. Dawson, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774 (1955); Holmes v. Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776 (1955); Gayle v. Browder, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (1956). 4 See Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). 5 See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Davis v. School Comm'rs of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971); North Carolina Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L. d.2d 586 (1971). 6 See, e. g., cases collected in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 663 n. 5, 98 S.Ct. 2018, 2022, 56 L.Ed.2d 611 (1978). 7 Section 601 of Title VI provides: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. 8 Mr. Justice WHITE believes we should address the private-right-of-action issue. Accordingly, he has filed a separate opinion stating his view that there is no private right of action under Title VI. See post, p. 379. 9 "Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial discrimination. Direct discrimination by Federal, State or local governments is prohibited by the Constitution. But indirect discrimination, through the use of Federal funds, is just as invidious; and it should not be necessary to resort to the courts to prevent each individual violation. Congress and the Executive have their responsibilities to uphold the Constitution also . . .. "Many statutes providing Federal financial assistance, however, define with such precision both the Administrator's role and the conditions upon which specified amounts shall be given to designated recipients that the amount of administrative discretion remaining—which might be used to withhold funds if discrimination were not ended—is at best questionable. No administrator has the unlimited authority to invoke the Constitution in opposition to the mandate of the Congress. Nor would it always be helpful to require unconditionally—as is often proposed—the withdrawal of all Federal funds from programs urgently needed by Negroes as well as whites; for this may only penalize those who least deserve it without ending discrimination. "Instead of permitting this issue to become a political device often exploited by those opposed to social or economic progress, it would be better at this time to pass a single comprehensive provision making it clear that the Federal Government is not required, under any statute, to furnish any kind of financial assistance—by way of grant, loan, contract, guaranty, insurance, or otherwise—to any program or activity in which racial discrimination occurs. This would not permit the Federal Government to cut off all Federal aid of all kinds as a means of punishing an area for the discrimination occurring therein—but it would clarify the authority of any administrator with respect to Federal funds or financial assistance and discriminatory practices." 109 Cong.Rec. 11161 (1963). 10 See, e. g., 110 Cong.Rec. 2732 (1964) (Rep. Dawson); id., at 2481-2482 (Rep. Ryan); id., at 2766 (Rep. Matsunaga); id., at 2595 (Rep. Donahue). 11 There is also language in 42 U.S.C. § 2000d-5, enacted in 1966, which supports the conclusion that Title VI's standard is that of the Constitution. Section 2000d-5 provides that "for the purpose of determining whether a local educational agency is in compliance with [Title VI], compliance by such agency with a final order or judgment of a Federal court for the desegregation of the school or school system operated by such agency shall be deemed to be compliance with [Title VI], insofar as the matters covered in the order or judgment are concerned." This provision was clearly intended to avoid subjecting local educational agencies simultaneously to the jurisdiction of the federal courts and the federal administrative agencies in connection with the imposition of remedial measures designed to end school segregation. Its inclusion reflects the congressional judgment that the requirements imposed by Title VI are identical to those imposed by the Constitution as interpreted by the federal courts. 12 As has already been seen, the proponents of Title VI in the House were motivated by the identical concern. See remarks of Representative Celler (110 Cong. Rec. at 2467 (1964)); Representative Ryan (id., at 1643, 2481-2482); H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 2, Additional Views of Seven Representatives 24-25 (1963). 13 See separate opinion of Mr. Justice WHITE, post, at 382-383, n. 2. 14 These remarks also reflect the expectations of Title VI's proponents that the application of the Constitution to the conduct at the core of their concern—the segregation of Negroes in federally funded programs and their exclusion from the full benefits of such programs—was clear. See supra, at 333-336; infra, at 340-342, n. 17. 15 Testimony of Attorney General Kennedy in Hearings before the Senate Committee on the Judiciary on S. 1731 and S. 1750, 88th Cong., 1st Sess., 398-399 (1963). 16 See, e. g., 110 Cong.Rec. 6544, 13820 (1964) (Sen. Humphrey); id., at 6050 (Sen. Javits); id., at 12677 (Sen. Allott). 17 Our Brother STEVENS finds support for a colorblind theory of Title VI in its legislative history, but his interpretation gives undue weight to a few isolated passages from among the thousands of pages of the legislative history of Title VI. See id., at 6547 (Sen. Humphrey); id., at 6047, 7055 (Sen. Pastore); id., at 12675 (Sen. Allott); id., at 6561 (Sen. Kuchel). These f agmentary comments fall far short of supporting a congressional intent to prohibit a racially conscious admissions program designed to assist those who are likely to have suffered injuries from the effects of past discrimination. In the first place, these statements must be read in the context in which they were made. The concern of the speakers was far removed from the incidental injuries which may be inflicted upon nonminorities by the use of racial preferences. It was rather with the evil of the segregation of Negroes in federally financed programs and, in some cases, their arbitrary exclusion on account of race from the benefits of such programs. Indeed, in this context there can be no doubt that the Fourteenth Amendment does command color blindness and forbids the use of racial criteria. No consideration was given by these legislators, however, to the permissibility of racial preference designed to redress the effects of injuries suffered as a result of one's color. Significantly one of the legislators, Senator Pastore, and perhaps also Senator Kuchel, who described Title VI as proscribing decisionmaking based upon skin color, also made it clear that Title VI does not outlaw the use of racial criteria in all circumstances. See supra, at 339-340; 110 Cong.Rec. 6562 (1964). See also id., at 2494 (Rep. Celler). Moreover, there are many statements in the legislative history explicitly indicating that Congress intended neither to require nor to prohibit the remedial use of racial preferences where not otherwise required or prohibited by the Constitution. Representative MacGregor addressed directly the problem of preferential treatment: "Your mail and mine, your contacts and mine with our constituents, indicates a great degree of misunderstanding about this bill. People complain about racial 'balancing' in the public schools, about open occupancy in housing, about preferential treatment or quotas in employment. There is a mistaken belief that Congress is legislating in these areas in this bill. When we drafted this bill we excluded these issues largely because the problems raised by these controversial questions are more properly handled at a governmental level close to the American people and by communities and individuals themselves. The Senate has spelled out our intentions more specifically." Id., at 15893. Other legislators explained that the achievement of racial balance in elementary and secondary schools where there had been no segregation by law was not compelled by Title VI but was rather left to the judgment of state and local communities. See, e. g., id., at 10920 (Sen. Javits); id., at 5807, 5266 (Sen. Keating); id., at 13821 (Sens. Humphrey and Saltonstall). See also, id., at 6562 (Sen. Kuchel); id., at 13695 (Sen. Pastore). Much the same can be said of the scattered remarks to be found in the legislative history of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V), which prohibits employment discrimination on the basis of race in terms somewhat similar to those contained in Title VI, see 42 U.S.C. § 2000e-2(a)(1) (unlawful "to fail or refuse to hire" any applicant "because of such individual's race, color, religion, sex, or national origin . . . ."), to the effect that any deliberate attempt by an employer to maintain a racial balance is not required by the statute and might in fact violate it. See, e. g., 110 Cong.Rec. 7214 (1964) (Sens. Clark and Case); id., at 6549 (Sen. Humphrey); id., at 2560 (Rep. Goodell). Once again, there is no indication that Congress intended to bar the voluntary use of racial preferences to assist minorities to surmount the obstacles imposed by the remnants of past discrimination. Even assuming that Title VII prohibits employers from deliberately maintaining a particular racial composition in their work force as an end in itself, this does not imply, in the absence of any consideration of the question, that Congress intended to bar the u e of racial preferences as a tool for achieving the objective of remedying past discrimination or other compelling ends. The former may well be contrary to the requirements of the Fourteenth Amendment (where state action is involved), while the latter presents very different constitutional considerations. Indeed, as discussed infra, at 353, this Court has construed Title VII as requiring the use of racial preferences for the purpose of hiring and advancing those who have been adversely affected by past discriminatory employment practices, even at the expense of other employees innocent of discrimination. Franks v. Bowman Transportation Co., 424 U.S. 747, 767-768, 96 S.Ct. 1251, 1265-1266, 47 L.Ed.2d 444 (1976). Although Title VII clearly does not require employers to take action to remedy the disadvantages imposed upon racial minorities by hands other than their own, such an objective is perfectly consistent with the remedial goals of the statute. See id., at 762-770, 96 S.Ct., at 1263-1267; Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975). There is no more indication in the legislative history of Title VII than in that of Title VI that Congress desired to prohibit such affirmative action to the extent that it is permitted by the Constitution, yet judicial decisions as well as subsequent executive and congressional action clearly establish that Title VII does not forbid race-conscious remedial action. See infra, at 353-355, and n. 28. 18 HEW has stated that the purpose of these regulations is "to specify that affirmative steps to make services more equitably available are not prohibited and that such steps are required when necessary to overcome the consequences of prior discrimination." 36 Fed.Reg. 23494 (1971). Other federal agencies which provide financial assistance pursuant to Title VI have adopted similar regulations. See Supplemental Brief for United States as Amicus Curiae 16 n. 14. 19 Moreover, the President has delegated to the Attorney General reponsibility for coordinating the enforcement of Title VI by federal departments and agencies and has directed him to 'assist the departments and agencies in accomplishing effective implementation.' Exec. Order No. 11764, 3 CFR 849 (1971-1975 Comp.). Accordingly, the views of the Solicitor General, as well as those of HEW, that the use of racial preferences for remedial purposes is consistent with Title VI are entitled to considerable respect. 20 HEW administers at least two explicitly race-conscious programs. Details concerning them may be found in the Office of Management and Budget, 1977 Catalogue of Federal Domestic Assistance 205-206, 401-402. The first program, No. 13.375, 'Minority Biomedical Support.' has as its objectives: "To increase the number of ethnic minority faculty, students, and investigators engaged in biomedical research. To b oaden the opportunities for participation in biomedical research of ethnic minority faculty, students, and investigators by providing support for biomedical research programs at eligible institutions." Eligibility for grants under this program is limited to (1) four-year colleges, universities, and health professional schools with over 50% minority enrollments; (2) four-year institutions with significant but not necessarily over 50% minority enrollment provided they have a history of encouragement and assistance to minorities; (3) two-year colleges with 50% minority enrollment; and (4) American Indian Tribal Councils. Grants made pursuant to this program are estimated to total $9,711,000 for 1977. The second program, No. 13.880, entitled "Minority Access To Research Careers," has as its objective to "assist minority institutions to train greater numbers of scientists and teachers in health related fields." Grants under this program are made directly to individuals and to institutions for the purpose of enabling them to make grants to individuals. 21 H.R.Conf.Rep. No. 95-538, p. 22 (1977); 123 Cong.Re . 26188 (1977). See H.J.Res. 662, 95th Cong., 1st Sess. (1977); Pub.L. 95-205, 91 Stat. 1460. 22 91 Stat. 117, 42 U.S.C. § 6705 (f)(2) (1976 ed.). 23 123 Cong.Rec. 7156 (1977); id., at 5327-5330 (1977). 24 See id., at 7156 (1977) (Sen. Brooke). 25 In addition to the enactment of the 10% quota provision discussed supra, Congress has also passed other Acts mandating race-conscious measures to overcome disadvantages experienced by racial minorities. Although these statutes have less direct bearing upon the meaning of Title VI, they do demonstrate that Congress believes race-conscious remedial measures to be both permissible and desirable under at least some circumstances. This in turn undercuts the likelihood that Congress intended to limit voluntary efforts to implement similar measures. For example, § 7(a) of the National Science Foundation Authorization Act, 1977, provides: "The Director of the National Science Foundation shall initiate an intensive search for qualified women, members of minority groups, and handicapped individuals to fill executive level positions in the National Science Foundation. In carrying out the requirement of this subsection, the Director shall work closely with organizations which have been active in seeking greater recognition and utilization of the scientific and technical capabilities of minorities, women, and handicapped individuals. The Director shall improve the representation of minorities, women, and handicapped individuals on advisory committees, review panels, and all other mechanisms by which the scientific community provides assistance to the Foundation." 90 Stat. 2056, note following 42 U.S.C. § 1873 (1976 ed.). Perhaps more importantly, the Act also authorizes the funding of Minority Centers for Graduate Education. Section 7(c)(2) of the Act, 90 Stat. 2056, requires that these Centers: "(A) have substantial minority student enrollment; "(B) are geographically located near minority population centers; "(C) demonstrate a commitment to encouraging and assisting minority students, researchers, and faculty; * * * * * "(F) will serve as a regional resource in science and engineering for the minority community which the Center is designed to serve; and "(G) will develop joint educational programs with nearby undergraduate institutions of higher education which have a substantial minority student enrollment." Once again, there is no indication in the legislative history of this Act or elsewhere that Congress saw any inconsistency between the race-conscious nature of such legislation and the meaning of Title VI. And, once again, it is unlikely in the extreme that a Congress which believed that it had commanded recipients of federal funds to be absolutely color-blind would itself expend federal funds in such a race-conscious manner. See also the Railroad Revitalization and Regulatory Reform Act of 1976, 45 U.S.C. § 801 et seq. (1976 ed.), 49 U.S.C. § 1657a et seq. (1976 ed.); the Emergency School Aid Act, 20 U.S.C. § 1601 et seq. (1976 ed.). 26 Cf. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). 27 Ibid.; Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). 28 Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Executive, judicial, and congressional action subsequent to the passage of Title VII conclusively established that the Title did not bar the remedial use of race. Prior to the 1972 amendments to Title VII (Equal Employment Opportunity Act of 1972, 86 Stat. 103) a number of Courts of Appeals approved race-conscious action to remedy the effects of employment discrimination. See, e. g., Heat & Frost Insulators & Asbestos Workers v. Vogler, 407 F.2d 1047 (C.A.5 1969); United States v. Electrical Workers, 428 F.2d 144, 149-150 (C.A.6), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970); United States v. Sheet Metal Workers, 416 F.2d 123 (C.A.8 1969). In 1965, the President issued Exec. Order No. 11246, 3 CFR 339 (1964-1965 Comp.), which as amended by Exec. Order No. 11375, 3 CFR 684 (1966-1970 Comp.), required federal contractors to take affirmative action to remedy the disproportionately low employment of racial minorities in the construction industry. The Attorney General issued an opinion concluding that the race consciousness required by Exec. Order No. 11246 did not conflict with Title VII: "It is not correct to say that Title VII prohibits employers from making race or national origin a factor for consideration at any stage in the process of obtaining employees. The legal definition of discrimination is an evolving one, but it is now well recognized in judicial opinions that the obligation of nondiscrimination, whether imposed by statute or by the Constitution, does not require and, in some circumstances, may not permit obliviousness or indifference to the racial consequences of alternative courses of action which involve the application of outwardly neutral criteria." 42 Op. Atty. Gen. 405, 411 (1969). The federal courts agreed. See, e. g., Contractors Assn. of Eastern Pa. v. Secretary of Labor, 442 F.2d 159 (C.A.3), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971) (which also held, 442 F.2d, at 173, that race-conscious affirmative action was permissible under Title VI); Southern Illinois Builders Assn. v. Ogilvie, 471 F.2d 680 (C.A.7 1972). Moreover, Congress, in enacting the 1972 amendments to Title VII, explicitly considered and reje ted proposals to alter Exec. Order No. 11246 and the prevailing judicial interpretations of Title VII as permitting, and in some circumstances requiring, race-conscious action. See Comment, The Philadelphia Plan: A Study in the Dynamics of Executive Power, 39 U.Chi.L.Rev. 723, 747-757 (1972). The section-by-section analysis of the 1972 amendments to Title VII undertaken by the Conference Committee Report on H.R. 1746 reveals a resolve to accept the then (as now) prevailing judicial interpretations of the scope of Title VII: "In any area where the new law does not address itself, or in any areas where a specific contrary intent is not indicated, it was assumed that the present case law as developed by the courts would continue to govern the applicability and construction of Title VII." Legislative History of the Equal Employment Opportunity Act of 1972, p. 1844 (Comm.Print. 1972). 29 United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). See also id., at 167-168, 97 S.Ct., at 1010-1011 (opinion of WHITE, J.). 30 We do not pause to debate whether our cases establish a "two-tier" analysis, a "sliding scale" analysis, or something else altogether. It is enough for present purposes that strict scrutiny is applied at least in some cases. 31 Of course, the fact that whites constitute a political majority in our Nation does not necessarily mean that active judicial scrutiny of racial classifications that disadvantage whites is inappropriate. Cf. Castaneda v. Partida, 430 U.S. 482, 499-500, 97 S.Ct. 1272, 1282-1283, 51 L.Ed.2d 498 (1977); id., at 501, 97 S.Ct., at 1283 (MARSHALL, J., concurring). 32 "[T]he conclusion cannot be resisted, that no reason for [the refusal to issue permits to Chinese] exists except hostility to the race and nationality to which the petitioners belong . . .. The discrimination is, therefore, illegal . . .." 33 Indeed, even in Plessy v. Ferguson the Court recognized that a classification by race that presumed one race to be inferior to another would have to be condemned. See 163 U.S., at 544-551, 16 S.Ct., at 1140-1143. 34 Paradoxically, petitioner's argument is supported by the cases generally thought to establish the "strict scrutiny" standard in race cases, Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943), and Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944). In Hirabayashi, for example, the Court, responding to a claim that a racial classification was rational, sustained a racial classification solely on the basis of a conclusion in the double negative that it could not say that facts which might have been available "could afford no ground for differentiating citizens of Japanese ancestry from other groups in the United States." Hirabayashi, 320 U.S., at 101, 63 S.Ct., at 1386. A similar mode of analysis was followed in Korematsu, see 323 U.S., at 224, 65 S.Ct., at 197, even though the Court stated there that racial classifications were "immediately suspect" and should be subject to "the most rigid scrutiny." Id., at 216, 65 S.Ct., at 194. 35 We disagree with our Brother POWELL's suggestion, ante, at 303, that the presence of "rival groups which can claim that they, too, are entitled to preferential treatment" distinguishes the gender cases or is relevant to the question of scope of judicial review of race classifications. We are not asked to determine whether groups other than those favored by the Davis program should similarly be favored. All we are asked to do is to pronounce the constitutionality of what Davis has done. But, were we asked to decide whether any given rival group German-Americans for example—must constitutionally be accorded preferential treatment, we do have a "principled basis," ante, at 296, for deciding this question, one that is well established in our cases: The Davis program expressly sets out four classes which receive preferred status. Ante, at 274. The program clearly distinguishes whites, but one cannot reason from this a conclusion that German-Americans, as a national group, are singled out for invidious treatment. And even if the Davis program had a differential impact on German-Americans, they would have no constitutional claim unless they could prove that Davis intended invidiously to discriminate against German-Americans. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264-265, 97 S.Ct. 555, 562-563, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 238-241, 96 S.Ct. 2040, 2046, 2048, 48 L.Ed.2d 597 (1976). If this could not be shown, then "the principle that calls for the closest scruti y of distinctions in laws denying fundamental rights . . . is inapplicable," Katzenbach v. Morgan, 384 U.S. 641, 657, 86 S.Ct. 1717, 1727, 16 L.Ed.2d 828 (1966), and the only question is whether it was rational for Davis to conclude that the groups it preferred had a greater claim to compensation than the groups it excluded. See ibid.; San Antonio Independent School District v. Rodriquez, 411 U.S. 1, 38-39, 93 S.Ct. 1278, 1299-1300, 36 L.Ed.2d 16 (1973) (applying Katzenbach test to state action intended to remove discrimination in educational opportunity). Thus, claims of rival groups, although they may create thorny political problems, create relatively simple problems for the courts. 36 Gunther, The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 8 (1972). 37 In Albemarle, we approved "differential validation" of employment tests. See 422 U.S., at 435, 95 S.Ct., at 2380. That procedure requires that an employer must ensure that a test score of, for example, 50 for a minority job applicant means the same thing as a score of 50 for a nonminority applicant. By implication, were it determined that a test score of 50 for a minority corresponded in "potential for employment" to a 60 for whites, the test could not be used consistently with Title VII unless the employer hired minorities with scores of 50 even though he might not hire nonminority applicants with scores above 50 but below 60. Thus, it is clear that employers, to ensure equal opportunity, may have to adopt race-conscious hiring practices. 38 Indeed, Titles VI and VII of the Civil Rights Act of 1964 put great emphasis on voluntarism in remedial action. See supra, at 336-338. And, significantly, the Equal Employment Opportunity Commission has recently proposed guidelines authorizing employers to adopt racial preferences as a remedial measure where they have a reasonable basis for believing that they might otherwise be held in violation of Title VII. See 42 Fed.Reg. 64826 (1977). 39 "[T]he [Voting Rights] Act's prohibition . . . is not dependent upon proving past unconstitutional apportionments . . . ." 40 "[T]he State is [not] powerless to minimize the consequences of racial discrimination by voters when it is regularly practiced at the polls." 41 Our cases cannot be distinguished by suggesting, as our Brother POWELL does, that in none of them was anyone deprived of "the relevant benefit." Ante, at 304. Our school cases have deprived whites of the neighborhood school of their choice; our Title VII cases have deprived nondiscriminating employees of their settled seniority expectations; and UJO deprived the Hassidim of bloc voting strength. Each of these injuries was constitutionally cognizable as is respondent's here. 42 We do not understand Mr. Justice POWELL to disagree that providing a remedy for past racial prejudice can constitute a compelling purpose sufficient to meet strict scrutiny. See ante, at 305. Yet, because petitioner is a corporation administering a university, he would not allow it to exercise such power in the absence of "judicial, legislative, or administrative findings of constitutional or statutory violations." Ante, at 307. While we agree that reversal in this case w uld follow a fortiori had Davis been guilty of invidious racial discrimination or if a federal statute mandated that universities refrain from applying any admissions policy that had a disparate and unjustified racial impact, see, e. g., McDaniel v. Barresi, 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 582 (1971); Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), we do not think it of constitutional significance that Davis has not been so adjudged. Generally, the manner in which a State chooses to delegate governmental functions is for it to decide. Cf. Sweezy v. New Hampshire, 354 U.S. 234, 256, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (Frankfurter, J., concurring in result). California, by constitutional provision, has chosen to place authority over the operation of the University of California in the Board of Regents. See Cal.Const., Art. 9, § 9(a). Control over the University is to be found not in the legislature, but rather in the Regents who had been vested with full legislative (including policymaking), administrative, and adjudicative powers by the citizens of California. See ibid.; Ishimatsu v. Regents, 266 Cal.App.2d 854, 863-864, 72 Cal.Rptr. 756, 762-763 (1968); Goldberg v. Regents, 248 Cal.App.2d 867, 874, 57 Cal.Rptr. 463, 468 (1967); 30 Op.Cal.Atty.Gen. 162, 166 (1957) ("The Regents, not the legislature, have the general rule-making or policy-making power in regard to the University"). This is certainly a permissible choice, see Sweezy, supra, and we, unlike our Brother POWELL, find nothing in the Equal Protection Clause that requires us to depart from established principle by limiting the scope of power the Regents may exercise more narrowly than the powers that may constitutionally be wielded by the Assembly. Because the Regents can exercise plenary legislative and administrative power, it elevates form over substance to insist that Davis could not use race-conscious remedial programs until it had been adjudged in violation of the Constitution or an antidiscrimination statute. For, if the Equal Protection Clause required such a violation as a predicate, the Regents could simply have promulgated a regulation prohibiting disparate treatment not justified by the need to admit only qualified students, and could have declared Davis to have been in violation of such a regulation on the basis of the exclusionary effect of the admissions policy applied during the first two years of its operation. See infra, at 370. 43 "Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment." Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976) (per curiam ), citing Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228, 43 L.Ed.2d 514 (1975). 44 Railway Mail Assn. held that a state statute forbidding racial discrimination by certain labor organizations did not abridge the Association's due process rights secured by the Fourteenth Amendment because that result "would be a distortion of the policy manifested in that amendment, which was adopted to prevent state legislation designed to perpetuate discrimination on the basis of race or color." 326 U.S., at 94, 65 S.Ct., at 1487. That case thus established the principle that a State voluntarily could go beyond what the Fourteenth Amendment required in eliminating private racial discrimination. 45 According to 89 schools responding to a questionnaire sent to 112 medical schools (all of the then-accredited medical schools in the United States except Howard and Meharry), substantial efforts to admit minority students did not begin until 1968. That year was the earliest year of involvement for 34% of the schools; an additional 66% became involved during the years 1969 to 1973. See C. Odegaard, Minorities in Medicine: From Receptive Passivity to Positive Action, 1966-1976, p. 19 (1977) (hereinafter Odegaard). These efforts were reflected in a significant increase in the p rcentage of minority M.D. graduates. The number of American Negro graduates increased from 2.2% in 1970 to 3.3% in 1973 and 5.0% in 1975. Significant percentage increases in the number of Mexican American, American-Indian, and mainland Puerto Rican graduates were also recorded during those years. Id., at 40. The statistical information cited in this and the following notes was compiled by Government officials or medical educators, and has been brought to our attention in many of the briefs. Neither the parties nor the amici challenge the validity of the statistics alluded to in our discussion. 46 D. Reitzes, Negroes and Medicine, pp. xxvii, 3 (1958). 47 Between 1955 and 1964, for example, the percentage of Negro physicians graduated in the United States who were trained at these schools ranged from 69.0% to 75.8%. See Odegaard 19. 48 U.S. Dept. of Health, Education, and Welfare, Minorities and Women in the Health Fields 7 (Pub. No. (HRA) 75-22, May 1974). 49 U.S. Dept. of Commerce, Bureau of the Census, 1970 Census, vol. 1, pt. 1, Table 60 (1973). 50 See ante, at 276 n. 6 (opinion of POWELL, J.). 51 See, e. g., R. Wade, Slavery in the Cities: The South 1820-1860, pp. 90-91 (1964). 52 For an example of unequal facilities in California schools, see Soria v. Oxnard School Dist. Board, 386 F.Supp. 539, 542 (CD Cal.1974). See also R. Kluger, Simple Justice (1976). 53 See, e. g., Crawford v. Board of Education, 17 Cal.3d 280, 130 Cal.Rptr. 724, 551 P.2d 28 (1976); Soria v. Oxnard School Dist. Board, supra; Spangler v. Pasadena City Board of Education, 311 F.Supp. 501 (C.D.Cal.1970); C. Wollenberg, All Deliberate Speed: Segregation and Exclusion in California Schools, 1855-1975, pp. 136-177 (1976). 54 For example, over 40% of American-born Negro males aged 20 to 24 residing in California in 1970 were born in the South, and the statistic for females was over 48%. These statistics were computed from data contained in Census, supra n. 49, pt. 6, California, Tables 139, 140. 55 See, e. g., O'Neil, Preferential Admissions: Equalizing the Access of Minority Groups to Higher Education, 80 Yale L.J. 699, 729-731 (1971). 56 Congress and the Executive have also adopted a series of race-conscious programs, each predicated on an understanding that equal opportunity cannot be achieved by neutrality because of the effects of past and present discrimination. See supra, at 348-349. 57 Negroes and Chicanos alone constitute approximately 22% of California's population. This percentage was computed from data contained in Census, supra, n. 49, pt. 6, California, sec. 1, 6-4, and Table 139. 58 The constitutionality of the special admissions program is buttressed by its restriction to only 16% of the positions in the Medical School, a percentage less than that of the minority population in California, see ibid., and to those minority applicants deemed qualified for admission and deemed likely to contribute to the Medical School and the medical profession. Record 67. This is consistent with the goal of putting minority applicants in the position they would have been in if not for the evil of racial discrimination. Accordingly, this case does not raise the question whether even a remedial use of race would be unconstitutional if it admitted unqualified minority applicants in preference to qualified applicants or admitted, as a result of preferential consideration, racial minorities in numbers significantly in excess of their proportional representation in the relevant population. Such programs might well be inadequately justified by the legitimate remedial objectives. Our allusion to the proportional percentage of minorities in the population of the State administering the program is not intended to establish either that figure or that population universe as a constitutional benchmark. In this case, even respondent, as we understand him, does not argue that, if the special admissions program is otherwise constitutional, the allotment of 16 places in each entering class for special admittees is unconstitutionally high. 59 See Census, supra, n. 49, Sources and Structure of Family Income, pp. 1-12. 60 This percentage was computed from data presented in B. Waldman, Economic and Racial Disadvantage as Reflected in Traditional Medical School Selection Factors: A Study of 1976 Applicants to U. S. Medical Schools 34 (Table A-15), 42 (Table A-23) (Association of American Medical Colleges 1977.) 61 This figure was computed from data contained in Census, supra n. 49, pt. 1, United States Summary, Table 209. 62 See Waldman, supra n. 60, at 10-14 (Figures 1-5). 63 The excluded white applicant, despite Mr. Justice POWELL's contention to the contrary, ante, at 318 n. 52, receives no more or less "individualized consideration" under our approach than under his. 1 It is also clear from Griffin that "lack of jurisdiction . . . touching the subject matter of the litigation cannot be waived by the parties . . . ." 303 U.S., at 229, 58 S.Ct., at 602. See also Mount Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 278, 97 S.Ct. 568, 571, 50 L.Ed.2d 471 (1977); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908); Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884). In Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), we did adjudicate a Title VI claim brought by a class of individuals. But the existence of a private cause of action was not at issue. In addition, the understanding of Mr. Justice STEWART's concurring opinion, which observed that standing was not being contested, was that the standing alleged by petitioners was as third-party beneficiaries of the funding contract between the Department of Health, Education, and Welfare and the San Francisco United School District, a theory not alleged by the present respondent. Id., at 571 n. 2, 94 S.Ct., at 790. Furthermore, the plaintiffs in Lau alleged jurisdiction under 42 U.S.C. § 1983 rather than directly under the provisions of Title VI, as does the plaintiff in this case. Although the Court undoubtedly had an obligation to consider the jurisdictional question, this is surely not the first instance in which the Court has bypassed a jurisdictional problem not presented by the parties. Certainly the Court's silence on the jurisdictional question, when considered in the context of the indifference of the litigants to it and the fact that jurisdiction was alleged under § 1983, does not foreclose a reasoned conclusion that Title VI affords no private cause of action. 2 "Yet, before that principle [that 'Federal funds are not to be used to support racial discrimination'] is implemented to the detriment of any person, agency, or State, regulations giving notice of what conduct is required must be drawn up by the agency administering the program. . . . Before such regulations become effective, they must be submitted to and approved by th President. "Once having become effective, there is still a long road to travel before any sanction whatsoever is imposed. Formal action to compel compliance can only take place after the following has occurred: first, there must be an unsuccessful attempt to obtain voluntary compliance; second, there must be an administrative hearing; third, a written report of the circumstances and the grounds for such action must be filed with the appropriate committees of the House and Senate; and fourth, 30 days must have elapsed between such filing and the action denying benefits under a Federal program. Finally, even that action is by no means final because it is subject to judicial review and can be further postponed by judicial action granting temporary relief pending review in order to avoid irreparable injury. It would be difficult indeed to concoct any additional safeguards to incorporate in such a procedure." 110 Cong.Rec. 6749 (1964) (Sen. Moss). "[T]he authority to cut off funds is hedged about with a number of procedural restrictions. . . . [There follow details of the preliminary steps.] "In short, title VI is a reasonable, moderate, cautious, carefully worked out solution to a situation that clearly calls for legislative action." Id., at 6544 (Sen. Humphrey). "Actually, no action whatsoever can be taken against anyone until the Federal agency involved has advised the appropriate person of his failure to comply with nondiscrimination requirements and until voluntary efforts to secure compliance have failed." Id., at 1519 (Rep. Celler) (emphasis added). See also remarks of Sen. Ribicoff (id., at 7066-7067); Sen. Proxmire (id., at 8345); Sen. Kuchel (id., at 6562). These safeguards were incorporated into 42 U.S.C. § 2000d-1. 3 This Court has never held that the mere receipt of federal or state funds is sufficient to make the recipient a federal or state actor. In Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (19 3), private schools that received state aid were held subject to the Fourteenth Amendment's ban on discrimination, but the Court's test required "tangible financial aid" with a "significant tendency to facilitate, reinforce, and support private discrimination." Id., at 466, 93 S.Ct., at 2811. The mandate of Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961), to sift facts and weigh circumstances of governmental support in each case to determine whether private or state action was involved, has not been abandoned for an automatic rule based on receipt of funds. Contemporaneous with the congressional debates on the Civil Rights Act was this Court's decision in Griffin v. School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 265 (1964). Tuition grants and tax concessions were provided for parents of students in private schools, which discriminated racially. The Court found sufficient state action, but carefully limited its holding to the circumstances presented: "[C]losing the Prince Edward schools and meanwhile contributing to the support of the private segregated white schools that took their place denied petitioners the equal protection of the laws." Id., at 232, 84 S.Ct., at 1234. Hence, neither at the time of the enactment of Title VI, nor at the present time to the extent this Court has spoken, has mere receipt of state funds created state action. Moreover, Simkins has not met with universal approval among the United States Courts of Appeals. See cases cited in Greco v. Orange Memorial Hospital Corp., 423 U.S. 1000, 1004, 96 S.Ct. 433, 435, 46 L.Ed.2d 376 (1975) (WHITE, J., dissenting from denial of certiorari). 4 "Nowhere in this section do you find a comparable right of legal action for a person who feels he has been denied his rights to participate in the benefits of Federal funds. Nowhere. Only those who have been cut off can go to court and present their claim." 110 Cong.Rec. 2467 (1964) (Rep. Gill). "[A] good case could be made that a remedy is provided for the State or local official who is practicing discrimination, but none is provided for the victim of the discrimination." Id., at 6562 (Sen. Kuchel). "Parenthetically, while we favored the inclusion of the right to sue on the part of the agency, the State, or the facility which was deprived of Federal funds, we also favored the inclusion of a provision granting the right to sue to the person suffering from discrimination. This was not included in the bill. However, both the Senator from Connecticut and I are grateful that our other suggestions were adopted by the Justice Department." Id., at 7065 (Sen. Keating). 5 Ibid. 6 As Senator Ribicoff stated: "Sometimes those eligible for Federal assistance may elect to reject such aid, unwilling to agree to a nondiscrimination requirement. If they choose that course, the responsibility is theirs." Id., at 7067. 7 I also join Parts I, III-A, and V-C of Mr. Justice POWELL's opinion. 1 The history recounted here is perhaps too well known to require documentation. But I must acknowledge the authorities on which I rely in retelling it. J. Franklin, From Slavery to Freedom 4th ed. 1974) (hereinafter Franklin); R. Kluger, Simple Justice (1975) (hereinafter Kluger); C. Woodward, The Strange Career of Jim Crow (3d ed. 1974) (hereinafter Woodward). 2 U. S. Dept. of Commerce, Bureau of the Census, Statistical Abstract of the United States 65 (1977) (Table 94). 3 Id., at 70 (Table 102). 4 Ibid. 5 U. S. Dept. of Commerce, Bureau of the Census, Current Population Reports, Series P-60, No. 107, p. 7 (1977) (Table 1). 6 Id., at 20 (Table 14). 7 U. S. Dept. of Labor, Bureau of Labor Statistics, Employment and Earnings, January 1978, p. 170 (Table 44). 8 Ibid. 9 U. S. Dept. of Commerce, Bureau of the Census, Current Population Reports, Series P-60, No. 105, p. 198 (1977) (Table 47). 10 U. S. Dept. of Commerce, Bureau of the Census, Statistical Abstract, supra, at 25 (Table 24). 11 Id., at 407-408 (Table 662) (based on 1970 census). 12 Indeed, the action of the University finds support in the regulations promulgated under Title VI by the Department of Health, Education, and Welfare and approved by the President, which authorize a federally funded institution to take affirmative steps to overcome past discrimination against groups even where the institution was not guilty of prior discrimination. 45 CFR § 80.3(b)(6)(ii) (1977). 1 Four Members of the Court have undertaken to announce the legal and constitutional effect of this Court's judgment. See opinion of Justices BRENNAN, WHITE, MARSHALL, and BLACKMUN, ante, at 324-325. It is hardly necessary to state that only a majority can speak for the Court or determine what is the "central meaning" of any judgment of the Court. 2 The judgment first entered by the trial court read, in its entirety, as follows: "IT IS HEREBY ORDERED, ADJUDGED AND DECREED: "1. Defendant, the Regents of the University of California, have judgment against plaintiff, Allan Bakke, denying the mandatory injunction requested by plaintiff ordering his admission to the University of California at Davis Medical School; "2. That plaintiff is entitled to have his application for admission to the medical school considered without regard to his race or the race of any other applicant, and defendants are hereby restrained and enjoined from considering plaintiff's race or the race of any other applicant in passing upon his application for admission; "3. Cross-defendant Allan Bakke have judgment against cross-complainant, the Regents of the University of California, declaring that the special admissions program at the University of California at Davis Medical School violates the Fourteenth Amendment to the United States Constitution, Article 1, Se tion 21 of the California Constitution, and the Federal Civil Rights Act [42 U.S.C. § 2000d]; "4. That plaintiff have and recover his court costs incurred herein in the sum of $217.35." App. to Pet. for Cert. 120a. 3 In paragraph 2 the trial court ordered that "plaintiff [Bakke] is entitled to have his application for admission to the medical school considered without regard to his race or the race of any other applicant, and defendants are hereby restrained and enjoined from considering plaintiff's race or the race of any other applicant in passing upon his application for admission." See n. 2, supra (emphasis added). The only way in which this order can be broadly read as prohibiting any use of race in the admissions process, apart from Bakke's application, is if the final "his" refers to "any other applicant." But the consistent use of the pronoun throughout the paragraph to refer to Bakke makes such a reading entirely unpersuasive, as does the failure of the trial court to suggest that it was issuing relief to applicants who were not parties to the suit. 4 Appendix B to Application for Stay A19-A20. 5 18 Cal.3d 34, 64, 132 Cal.Rptr. 680, 700, 553 P.2d 1152, 1172 (1976). The judgment of the Supreme Court of the State of California affirms only paragraph 3 of the trial court's judgment. The Supreme Court's judgment reads as follows: "IT IS ORDERED, ADJUDGED, AND DECREED by the Court that the judgment of the Superior Court[,] County of Yolo[,] in the above-entitled cause, is hereby affirmed insofar as it determines that the special admission program is invalid; the judgment is reversed insofar as it denies Bakke an injunction ordering that he be admitted to the University, and the trial court is directed to enter judgment ordering Bakke to be admitted. "Bakke shall recover his costs on these appeals." 6 "This Court . . . reviews judgments, not statements in opinions." Black v. Cutter Laboratories, 351 U.S. 292, 297, 76 S.Ct. 824, 827, 100 L.Ed. 1188. 7 "From Hayburn's Case, 2 Dall. 409, to Alma Motor Co. v. Timken-Detroit Axle Co.[, 329 U.S. 129, 67 S.Ct. 231, 91 L.Ed. 128,] and the Hatch Act case [United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754] decided this term, this Court has followed a policy of strict necessity in disposing of constitutional issues. The earliest exemplifications, too well known for repeating the history here, arose in the Court's refusal to render advisory opinions and in applications of the related jurisdictional policy drawn from the case and controversy limitation. U.S.Const., Art. III. . . . "The policy, however, has not been limited to jurisdictional determinations. For, in addition, 'the Court [has] developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.' Thus, as those rules were listed in support of the statement quoted, constitutional issues affecting legislation will not be determined in friendly, nonadversary proceedings; in advance of the necessity of deciding them; in broader terms than are required by the precise facts to which the ruling is to be applied; if the record presents some other ground upon which the case may be disposed of; at the instance of one who fails to show that he is injured by the statute's operation, or who has availed himself of its benefits; or if a construction of the statute is fairly possible by which the question may be avoided." Rescue Army v. Municipal Court, 331 U.S. 549, 568-569, 67 S.Ct. 1409, 1419, 91 L.Ed. 1666 (footnotes omitted). See also Ashwander v. TVA, 297 U.S. 288, 346-348, 56 S.Ct. 466, 482-483, 80 L.Ed. 688 (Brandeis, J., concurring). 8 The doctrine reflects both our respect for the Constitution as an enduring set of principles and the deference we owe to the Legislative and Executive Branches of Government in developing solutions to complex social problems. See A. Bickel, The Least Dangerous Branch 131 (1962). 9 Record 29. 10 H.R.Rep.No.914, 88th Cong., 1st Sess., pt. 1, p. 18 (1963), U.S.Code Cong. & Admin.News 1964, p. 2393. 11 It is apparent from the legislative history that the immediate object of Title VI was to prevent federal funding of segregated facilities. See, e. g., 110 Cong.Rec. 1521 (1964) (remarks of Rep. Celler); id., at 6544 (remarks of Sen. Humphrey). 12 In McDonald v. Santa Fe Trail Transp. Co., the Court held that "Title VII prohibits racial discrimination against . . . white petitioners . . . upon the same standards as would be applicable were they Negroes . . . ." 427 U.S., at 280, 96 S.Ct., at 2579. Quoting from our earlier decision in Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158, the Court reaffirmed the principle that the statute "prohibit[s] '[d]iscriminatory preference for any [racial] group, minority or majority.' " 427 U.S., at 279, 96 S.Ct., at 2578 (emphasis in original). 13 See, e. g., 110 Cong.Rec. 1520 (1964) (remarks of Rep. Celler); id., at 5864 (remarks of Sen. Humphrey); id., at 6561 (remarks of Sen. Kuchel); id., at 7055 (remarks of Sen. Pastore). (Representative Celler and Senators Humphrey and Kuchel were the House and Senate floor managers for the entire Civil Rights Act, and Senator Pastore was the majority Senate floor manager for Title VI.) 14 Representative Abernathy's comments were typical: "Title VI has been aptly described as the most harsh and unprecedented proposal contained in the bill . . . . "It is aimed toward eliminating discrimination in federally assisted programs. It contains no guideposts and no yardsticks as to what might constitute discrimination in carrying out federally aided programs and projects. . . . * * * * * "Presumably the college would have to have a 'racially balanced' staff from the dean's office to the cafeteria . . . . "The effect of this title, if enacted into law, will interject race as a factor in every decision involving the selectio of an individual . . . . The concept of 'racial imbalance' would hover like a black cloud over every transaction . . . ." Id., at 1619. See also, e. g., id., at 5611-5613 (remarks of Sen. Ervin); id., at 9083 (remarks of Sen. Gore). 15 E. g., id., at 5863, 5874 (remarks of Sen. Eastland). 16 See, e. g., id., at 8346 (remarks of Sen. Proxmire) ("Taxes are collected from whites and Negroes, and they should be expended without discrimination"); id., at 7055 (remarks of Sen. Pastore) ("[Title VI] will guarantee that the money collected by colorblind tax collectors will be distributed by Federal and State administrators who are equally colorblind"); and id., at 6543 (remarks of Sen. Humphrey) (" 'Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination' ") (quoting from President Kennedy's Message to Congress, June 19, 1963). 17 See, e. g., 110 Cong.Rec. 5253 (1964) (remarks of Sen. Humphrey); and id., at 7102 (remarks of Sen. Javits). The parallel between the prohibitions of Title VI and those of the Constitution was clearest with respect to the immediate goal of the Act—an end to federal funding of "separate but equal" facilities. 18 "As in Monroe [v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492], we have no occasion here to 'reach the constitutional question whether Congress has the power to make municipalities liable for acts of its officers that violate the civil rights of individuals.' 365 U.S. [167], at 191 [81 S.Ct. 473, 5 L.Ed.2d 492]. For in interpreting the statute it is not our task to consider whether Congress was mistaken in 1871 in its view of the limits of its power over municipalities; rather, we must construe the statute in light of the impressions under which Congress did in fact act, see Ries v. Lynskey, 452 F.2d, 172, at 175." Moor v. County of Alameda, 411 U.S. 693, 709, 93 S.Ct. 1785, 1795, 36 L.Ed.2d 596. 19 Both Title VI and Title VII express Congress' belief that, in the long struggle to eliminate social prejudice and the effects of prejudice, the principle of individual equality, without regard to race or religion, was one on which there could be a "meeting of the minds" among all races and a common national purpose. See Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 709, 98 S.Ct. 1370, 1376, 55 L.Ed.2d 657 ("[T]he basic policy of the statute [Title VII] requires that we focus on fairness to individuals rather than fairness to classes"). This same principle of individual fairness is embodied in Title VI. "The basic fairness of title VI is so clear that I find it difficult to understand why it should create any opposition. . . . * * * * * "Private prejudices, to be sure, cannot be eliminated overnight. However, there is one area where no room at all exists for private prejudices. That is the area of governmental conduct. As the first Mr. Justice Harlan said in his prophetic dissenting opinion in Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 1146, 41 L.Ed. 256. " 'Our Constitution is colorblind.' "So—I say to Senators—must be our Government. . . . "Title VI closes the gap between our purposes as a democracy and our prejudices as individuals. The cuts of prejudice need healing. The costs of prejudice need understanding. We cannot have hostility between two great parts of our people without tragic loss in our human values . . . . "Title VI offers a place for the meeting of our minds as to Federal money." 110 Cong.Rec. 7063-7064 (1964) (remarks of Sen. Pastore). Of course, one of the reasons marshaled in support of the conclusion that Title VI was "noncontroversial" was that its prohibition was already reflected in the law. See ibid. (remarks of Sen. Pell and Sen. Pastore). 20 For example, private employers now under duties imposed by Title VII were wholly free from the restraints imposed by the Fifth and Fourteenth Amendments which are directed only to governmental action. In Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1, the Government's brief stressed that "the applicability of Title VI . . . does not depend upon the outcome of the equal protection analysis. . . . [T]he statute independently proscribes the conduct challenged by petitioners and provides a discrete basis for injunctive relief." Brief for United States as Amicus Curiae, O.T. 1973, No. 72-6520, p. 15. The Court, in turn, rested its decision on Title VI. Mr. Justice POWELL takes pains to distinguish Lau from the case at hand because the Lau decision "rested solely on the statute." Ante, at 304. See also Washington v. Davis, 426 U.S. 229, 238-239, 96 S.Ct. 2040, 2046-2047, 48 L.Ed.2d 597; Allen v. State Board of Elections, 393 U.S. 544, 588, 89 S.Ct. 817, 843, 22 L.Ed.2d 1 (Harlan, J., concurring and dissenting). 21 As explained by Senator Humphrey, § 601 expresses a principle imbedded in the constitutional and moral understanding of the times. "The purpose of title VI is to make sure that funds of the United States are not used to support racial discrimination. In many instances the practices of segregation or discrimination, which title VI seeks to end, are unconstitutional. . . . In all cases, such discrimination is contrary to national policy, and to the moral sense of the Nation. Thus, title VI is simply designed to insure that Federal funds are spent in accordance with the Constitution and the moral sense of the Nation." 110 Cong.Rec. 6544 (1964) (emphasis added). 22 Petitioner's attempt to rely on regulations issued by HEW for a contrary reading of the statute is unpersuasive. Where no discriminatory policy was in effect, HEW's example of permissible "affirmative action" refers to "special recruitment policies." 45 CFR § 80.5(j) (1977). This regulation, which was adopted in 1973, sheds no light on the legality of the admissions program that excluded Bakke in this case. 23 110 Cong.Rec. 6047 (1964) (remarks of Sen Pastore). 24 Record 30-31. 25 See, e. g., Lau v. Nichols, supra; Bossier Parish School Board v. Lemon, 370 F.2d 847 (C.A.5 1967), cert. denied, 388 U.S. 911, 87 S.Ct. 2116, 18 L.Ed.2d 1350; Uzzell v. Friday, 547 F.2d 801 (C.A.4 1977), opinion on rehearing en banc, 558 F.2d 727, cert. pending, No. 77-635; Serna v. Portales, 499 F.2d 1147 (C.A.10 1974); cf. Chambers v. Omaha Public School District, 536 F.2d 222, 225 n. 2 (C.A.8 1976) (indicating doubt over whether a money judgment can be obtained under Title VI). Indeed, the Government's brief in Lau v. Nichols, supra, succinctly expressed this common assumption: "It is settled that petitioners . . . have standing to enforce Section 601 . . . ." Brief for United States as Amicus Curiae in Lau v. Nichols, O.T.1973, No. 72-6520, p. 13 n. 5. 26 Supplemental Brief for United States as Amicus Curiae 24-34. The Government's supplemental brief also suggests that there may be a difference between a private cause of action brought to end a particular discriminatory practice and such an action brought to cut off federal funds. Id., at 28-30. Section 601 is specifically addressed to p rsonal rights, while § 602—the fund cutoff provision—establishes "an elaborate mechanism for governmental enforcement by federal agencies." Supplemental Brief, supra, at 28 (emphasis added). Arguably, private enforcement of this "elaborate mechanism" would not fit within the congressional scheme, see separate opinion of Mr. Justice WHITE, ante, at 380-383. But Bakke did not seek to cut off the University's federal funding; he sought admission to medical school. The difference between these two courses of action is clear and significant. As the Government itself states: "[T]he grant of an injunction or a declaratory judgment in a private action would not be inconsistent with the administrative program established by Section 602 . . . . A declaratory judgment or injunction against future discrimination would not raise the possibility that funds would be terminated, and it would not involve bringing the forces of the Executive Branch to bear on state programs; it therefore would not implicate the concern that led to the limitations contained in Section 602." Supplemental Brief, supra, at 30 n. 25. The notion that a private action seeking injunctive or declaratory judgment relief is inconsistent with a federal statute that authorizes termination of funds has clearly been rejected by this Court in prior cases. See Rosado v. Wyman, 397 U.S. 397, 420, 90 S.Ct. 1207, 1221, 25 L.Ed.2d 442. 27 See 29 U.S.C. § 794 (1976 ed.) (the Rehabilitation Act of 1973) (in particular, the legislative history discussed in Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1285-1286 (C.A.7 1977)); 20 U.S.C. § 1617 (1976 ed.) (attorney fees under the Emergency School Aid Act); and 31 U.S.C. § 1244 (1976 ed.) (private action under the Financial Assistance Act). Of course, none of these subsequent legislative enactments is necessarily reliable evidence of Congress' intent in 1964 in enacting Title VI, and the legislation was not intended to change the existing status of Title VI. 28 Framing the analysis in terms of the four-part Cort v. Ash test, see 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26, it is clear that all four parts of the test are satisfied. (1) Bakke's status as a potential beneficiary of a federally funded program definitely brings him within the " 'class for whose especial benefit the statute was enacted,' " Ibid. (emphasis in original). (2) A cause of action based on race discrimination has not been "traditionally relegated to state law." Ibid. (3) While a few excerpts from the voluminous legislative history suggest that Congress did not intend to create a private cause of action, see opinion of Mr. Justice POWELL, ante, at 283 n. 18, an examination of the entire legislative history makes it clear that Congress had no intention to foreclose a private right of action. (4) There is ample evidence that Congress considered private causes of action to be consistent with, if not essential to, the legislative scheme. See, e. g., remarks of Senator Ribicoff: "We come then to the crux of the dispute—how this right [to participate in federally funded programs without discrimination] should be protected. And even this issue becomes clear upon the most elementary analysis. If Federal funds are to be dispensed on a nondiscriminatory basis, the only possible remedies must fall into one of two categories: First, action to end discrimination; or second, action to end the payment of funds. Obviously action to end discrimination is preferable since that reaches the objective of extending the funds on a nondiscriminatory basis. But if the discrimination persists and cannot be effectively terminated, how else can the principle of nondiscrimination be vindicated except by nonpayment of funds?" 110 Cong.Rec. 7065 (1964). See also id., at 5090, 6543, 6544 (remarks of Sen. Humphrey); id., at 7103, 12719 (remarks of Sen. Javits); id., at 7062, 7063 (remarks of Sen. Pastore). The congressional debates thus show a clea understanding that the principle embodied in § 601 involves personal federal rights that administrative procedures would not, for the most part, be able to protect. The analogy to the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. (1970 ed. and Supp. V), is clear. Both that Act and Title VI are broadly phrased in terms of personal rights ("no person shall be denied . . ."); both Acts were drafted with broad remedial purposes in mind; and the effectiveness of both Acts would be "severely hampered" without the existence of a private remedy to supplement administrative procedures. See Allen v. State Bd. of Elections, 393 U.S. 544, 556, 89 S.Ct. 817, 826, 22 L.Ed.2d 1. In Allen, of course, this Court found a private right of action under the Voting Rights Act.

12

438 U.S. 104 98 S.Ct. 2646 57 L.Ed.2d 631 PENN CENTRAL TRANSPORTATION COMPANY et al., Appellants,v.CITY OF NEW YORK et al. No. 77-444. Argued April 17, 1978. Decided June 26, 1978. Rehearing Denied Oct. 2, 1978. See 439 U.S. 883, 99 S.Ct. 226. Syllabus Under New York City's Landmarks Preservation Law (Landmarks Law), which was enacted to protect historic landmarks and neighborhoods from precipitate decisions to destroy or fundamentally alter their character, the Landmarks Preservation Commission (Commission) may designate a building to be a "landmark" on a particular "landmark site" or may designate an area to be a "historic district." The Board of Estimate may thereafter modify or disapprove the designation, and the owner may seek judicial review of the final designation decision. The owner of the designated landmark must keep the building's exterior "in good repair" and before exterior alterations are made must secure Commission approval. Under two ordinances owners of landmark sites may transfer development rights from a landmark parcel to proximate lots. Under the Landmarks Law, the Grand Central Terminal (Terminal), which is owned by the Penn Central Transportation Co. and its affiliates (Penn Central) was designated a "landmark" and the block it occupies a "landmark site." Appellant Penn Central, though opposing the designation before the Commission, did not seek judicial review of the final designation decision. Thereafter appellant Penn Central entered into a lease with appellant UGP Properties, whereby UGP was to construct a multistory office building over the Terminal. After the Commission had rejected appellants' plans for the building as destructive of the Terminal's historic and aesthetic features, with no judicial review thereafter being sought, appellants brought suit in state court claiming that the application of the Landmarks Law had "taken" their property without just compensation in violation of the Fifth and Fourteenth Amendments and arbitrarily deprived them of their property without due process of law in violation of the Fourteenth Amendment. The trial court's grant of relief was reversed on appeal, the New York Court of Appeals ultimately concluding that there was no "taking" since the Landmarks Law had not transferred control of the property to the city, but only restricted appellants' exploitation of it; and that there was no denial of due process because (1) the same use of the Terminal was permitted as before; (2) the appellants had not shown that they could not earn a reasonable return on their investment in the Terminal itself; (3) even if the Terminal proper could never operate at a reasonable profit, some of the income from Penn Central's extensive real estate holdings in the area must realistically be imputed to the Terminal; and (4) the development rights above the Terminal, which were made transferable to numerous sites in the vicinity, provided significant compensation for loss of rights above the Terminal itself. Held: The application of the Landmarks Law to the Terminal property does not constitute a "taking" of appellants' property within the meaning of the Fifth Amendment as made applicable to the States by the Fourteenth Amendment. Pp. 2559-2666. (a) In a wide variety of contexts the government may execute laws or programs that adversely affect recognized economic values without its action constituting a "taking," and in instances such as zoning laws where a state tribunal has reasonably concluded that "the health, safety, morals, or general welfare" would be promoted by prohibiting particular contemplated uses of land, this Court has upheld land-use regulations that destroyed or adversely affected real property interests. In many instances use restrictions that served a substantial public purpose have been upheld against "taking" challenges, e. g., Goldblatt v. Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130; Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348, though a state statute that substantially furthers important public policies may so frustrate distinct investment-backed expectations as to constitute a "taking," e. g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322, and government acquisitions of resources to permit uniquely public functions constitute "takings," e. g., United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206. Pp. 123-128. (b) In deciding whether particular governmental action has effected a "taking," the character of the action and nature and extent of the interference with property rights (here the city tax block designated as the "landmark site") are focused upon, rather than discrete segments thereof. Consequently, appellants cannot establish a "taking" simply by showing that they have been denied the ability to exploit the super-jacent airspace, irrespective of the remainder of appellants' parcel. Pp. 130-131. (c) Though diminution in property value alone, as may result from a zoning law, cannot establish a "taking," as appellants concede, they urge that the regulation of individual landmarks is different because it applies only to selected properties. But it does not follow that landmark laws, which embody a comprehensive plan to preserve structures of historic or aesthetic interest, are discriminatory, like "reverse spot" zoning. Nor can it be successfully contended that designation of a landmark involves only a matter of taste and therefore will inevitably lead to arbitrary results, for judicial review is available and there is no reason to believe it will be less effective than would be so in the case of zoning or any other context. Pp. 131-133. (d) That the Landmarks Law affects some landowners more severely than others does not itself result in "taking," for that is often the case with general welfare and zoning legislation. Nor, contrary to appellants' contention, are they solely burdened and unbenefited by the Landmarks Law, which has been extensively applied and was enacted on the basis of the legislative judgment that the preservation of landmarks benefits the citizenry both economically and by improving the overall quality of city life. Pp. 133-135. (e) The Landmarks Law no more effects an appropriation of the airspace above the Terminal for governmental uses than would a zoning law appropriate property; it simply prohibits appellants or others from occupying certain features of that space while allowing appellants gainfully to use the remainder of the parcel. United States v. Causby, supra, distinguished. P. 135. (f) The Landmarks Law, which does not interfere with the Terminal's present uses or prevent Penn Central from realizing a "reasonable return" on its investment, does not impose the drastic limitation on appellants' ability to use the air rights above the Terminal that appellants claim, for on this record there is no showing that a smaller, harmonizing structure would not be authorized. Moreover, the pre-existing air rights are made transferable to other parcels in the vicinity of the Terminal, thus mitigating whatever financial burdens appellants have incurred. Pp. 135-137. 42 N.Y.2d 324, 397 N.Y.S.2d 914, 366 N.E.2d 1271, affirmed Daniel M. Gribbon, Washington, D. C., for appellants. Leonard J. Koerner, New York City, for appellees. Patricia M. Wald, Washington, D. C., for the U. S., as amicus curiae, by special leave of Court. Mr. Justice BRENNAN delivered the opinion of the Court. 1 The question presented is whether a city may, as part of a comprehensive program to preserve historic landmarks and historic districts, place restrictions on the development of individual historic landmarks—in addition to those imposed by applicable zoning ordinances—without effecting a "taking" requiring the payment of "just compensation." Specifically, we must decide whether the application of New York City's Landmarks Preservation Law to the parcel of land occupied by Grand Central Terminal has "taken" its owners' property in violation of the Fifth and Fourteenth Amendments. 2 * A. 3 Over the past 50 years, all 50 States and over 500 municipalities have enacted laws to encourage or require the preservation of buildings and areas with historic or aesthetic importance.1 These nationwide legislative efforts have been precipitated by two concerns. The first is recognition that, in recent years, large numbers of historic structures, landmarks, and areas have been destroyed2 without adequate consideration of either the values represented therein or the possibility of preserving the destroyed properties for use in economically productive ways.3 The second is a widely shared belief that structures with special historic, cultural, or architectural significance enhance the quality of life for all. Not only do these buildings and their workmanship represent the lessons of the past and embody precious features of our heritage, they serve as examples of quality for today. "[H]istoric conservation is but one aspect of the much larger problem, basically an environmental one, of enhancing—or perhaps developing for the first time—the quality of life for people."4 4 New York City, responding to similar concerns and acting pursuant to a New York State enabling Act,5 adopted its Landmarks Preservation Law in 1965. See N.Y.C. Admin. Code, ch. 8-A, § 205-1.0 et seq. (1976). The city acted from the conviction that "the standing of [New York City] as a world-wide tourist center and world capital of business, culture and government" would be threatened if legislation were not enacted to protect historic landmarks and neighborhoods from pr cipitate decisions to destroy or fundamentally alter their character. § 205-1.0(a). The city believed that comprehensive measures to safeguard desirable features of the existing urban fabric would benefit its citizens in a variety of ways: e. g., fostering "civic pride in the beauty and noble accomplishments of the past"; protecting and enhancing "the city's attractions to tourists and visitors"; "support[ing] and stimul[ating] business and industry"; "strengthen[ing] the economy of the city"; and promoting "the use of historic districts, landmarks, interior landmarks and scenic landmarks for the education, pleasure and welfare of the people of the city." § 205-1.0(b). 5 The New York City law is typical of many urban landmark laws in that its primary method of achieving its goals is not by acquisitions of historic properties,6 but rather by involving public entities in land-use decisions affecting these properties and providing services, standards, controls, and incentives that will encourage preservation by private owners and users.7 While the law does place special restrictions on landmark properties as a necessary feature to the attainment of its larger objectives, the major theme of the law is to ensure the owners of any such properties both a "reasonable return" on their investments and maximum latitude to use their parcels for purposes not inconsistent with the preservation goals. 6 The operation of the law can be briefly summarized. The primary responsibility for administering the law is vested in the Landmarks Preservation Commission (Commission), a broad based, 11-member agency8 assisted by a technical staff. The Commission first performs the function, critical to any landmark preservation effort, of identifying properties and areas that have "a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation." § 207-1.0(n); see § 207-1.0(h). If the Commission determines, after giving all interested parties an opportunity to be heard, that a building or area satisfies the ordinance's criteria, it will designate a building to be a "landmark," § 207-1.0(n),9 situated on a particular "landmark site," § 207-1.0(o ),10 or will designate an area to be a "historic district," § 207-1.0(h).11 After the Commission makes a designation, New York City's Board of Estimate, after considering the relationship of the designated property "to the master plan, the zoning resolution, projected public improvements and any plans for the renewal of the area involved," § 207-2.0(g)(1), may modify or disapprove the designation, and the owner may seek judicial review of the final designation decision. Thus far, 31 historic districts and over 400 individual landmarks have been finally designated,12 and the process is a continuing one. 7 Final designation as a landmark results in restrictions upon the property owner's options concerning use of the landmark site. First, the law imposes a duty upon the owner to keep the exterior features of the building "in good repair" to assure that the law's objectives not be defeated by the landmark's falling into a state of irremediable disrepair. See § 207-10.0(a). Second, the Commission must approve in advance any proposal to alter the exterior architectural features of the landmark or to construct any exterior improvement on the landmark site, thus ensuring that decisions concerning construction on the landmark site are made with due consideration of both the public interest in the maintenance of the structure and the landowner's interest in use of the property. See §§ 207-4.0 to 207-9.0. 8 In the event an owner wishes to alter a landmark site, three separate procedures are available through which administrative approval may be obtained. First, the owner may apply to the Commission for a "certificate of no effect on protected architectural features": that is, for an order approving the improvement or alteration on the ground that it will not change or affect any architectural feature of the landmark and will be in harmony therewith. See § 207-5.0. Denial of the certificate is subject to judicial review. 9 Second, the owner may apply to the Commission for a certificate of "appropriateness." See § 207-6.0. Such certificates will be granted if the Commission concludes—focusing upon aesthetic, historical, and architectural values—that the proposed construction on the landmark site would not unduly hinder the protection, enhancement, perpetuation, and use of the landmark. Again, denial of the c rtificate is subject to judicial review. Moreover, the owner who is denied either a certificate of no exterior effect or a certificate of appropriateness may submit an alternative or modified plan for approval. The final procedure seeking a certificate of appropriateness on the ground of "insufficient return," see § 207-8.0—provides special mechanisms, which vary depending on whether or not the landmark enjoys a tax exemption,13 to ensure that designation does not cause economic hardship. 10 Although the designation of a landmark and landmark site restricts the owner's control over the parcel, designation also enhances the economic position of the landmark owner in one significant respect. Under New York City's zoning laws, owners of real property who have not developed their property to the full extent permitted by the applicable zoning laws are allowed to transfer development rights to contiguous parcels on the same city block. See New York City, Zoning Resolution Art. I, ch. 2, § 12-10 (1978) (definition of "zoning lot"). A 1968 ordinance gave the owners of landmark sites additional opportunities to transfer development rights to other parcels. Subject to a restriction that the floor area of the transferee lot may not be increased by more than 20% above its authorized level, the ordinance permitted transfers from a landmark parcel to property across the street or across a street inte section. In 1969, the law governing the conditions under which transfers from landmark parcels could occur was liberalized, see New York City Zoning Resolutions 74-79 to 74-793, apparently to ensure that the Landmarks Law would not unduly restrict the development options of the owners of Grand Central Terminal. See Marcus, Air Rights Transfers in New York City, 36 Law & Contemp. Prob. 372, 375 (1971). The class of recipient lots was expanded to include lots "across a street and opposite to another lot or lots which except for the intervention of streets or street intersections f[or]m a series extending to the lot occupied by the landmark building[, provided that] all lots [are] in the same ownership." New York City Zoning Resolution 74-79 (emphasis deleted).14 In addition, the 1969 amendment permits, in highly commercialized areas like midtown Manhattan, the transfer of all unused development rights to a single parcel. Ibid. B 11 This case involves the application of New York City's Landmarks Preservation Law to Grand Central Terminal (Terminal). The Terminal, which is owned by the Penn Central Transportation Co. and its affiliates (Penn Central), is one of New York City's most famous buildings. Opened in 1913, it is regarded not only as providing an ingenious engineering solution to the problems presented by urban railroad stations, but also as a magnificent example of the French beaux-arts style. 12 The Terminal is located in midtown Manhattan. Its south facade faces 42d Street and that street's intersection with Park Avenue. At street level, the Terminal is bounded on the west by Vanderbilt Avenue, on the east by the Commodore Hotel, and on the north by the Pan-American Building. Although a 20-story office tower, to have been located above the Terminal, was part of the original design, the planned tower was never constructed.15 The Terminal itself is an eight-story structure which Penn Central uses as a railroad station and in which it rents space not needed for railroad purposes to a variety of commercial interests. The Terminal is one of a number of properties owned by appellant Penn Central in this area of midtown Manhattan. The others include the Barclay, Biltmore, Commodore, Roosevelt, and Waldorf-Astoria Hotels, the Pan-American Building and other office buildings along Park Avenue, and the Yale Club. At least eight of these are eligible to be recipients of development rights afforded the Terminal by virtue of landmark designation. 13 On August 2, 1967, following a public hearing, the Commission designated the Terminal a "landmark" and designated the "city tax block" it occupies a "landmark site."16 The Board of Estimate confirmed this action on September 21, 1967. Although appellant Penn Central had opposed the designation before the Commission, it did not seek judicial review of the final designation decision. 14 On January 22, 1968, appellant Penn Central, to increase its income, entered into a renewable 50-year lease and sublease agreement with appellant UGP Properties, Inc. (UGP), a wholly owned subsidiary of Union General Properties, Ltd., a United Kingdom corporation. Under the terms of the agreement, UGP was to construct a multistory office building above the Terminal. UGP promised to pay Penn Central $1 million annually during construction and at least $3 million annually thereafter. The rentals would be offset in part by a loss of some $700,000 to $1 million in net rentals presently received from concessionaires displaced by the new building. 15 Appellants UGP and Penn Central then applied to the Commission for permission to construct an office building atop the Terminal. Two separate plans, both designed by architect Marcel Breuer and both apparently satisfying the terms of the applicable zoning ordinance, were submitted to the Commission for approval. The first, Breuer I, provided for the construction of a 55-story office building, to be cantilevered above the existing facade and to rest on the roof of the Terminal. The second, Breuer II Revised,17 called for tearing down a portion of the Terminal that included the 42d Street facade, stripping off some of the remaining features of the Terminal's facade, and constructing a 53-story office building. The Commission denied a certificate of no exterior effect on September 20, 1968. Appellants then applied for a certificate of "appropriateness" as to both proposals. After four days of hearings at which over 80 witnesses testified, the Commission denied this application as to both proposals. 16 The Commission's reasons for rejecting certificates respecting Breuer II Revised are summarized in the following statement: "To protect a Landmark, one does not tear it down. To perpetuate its architectural features, one does not strip them off." Record 2255. Breuer I, which would have preserved the existing vertical facades of the present structure, received more sympathetic consideration. The Commission first focused on the effect that the proposed tower would have on one desirable feature created by the present structure and its surroundings: the dramatic view of the Terminal from Park Avenue South. Although appellants had contended that the Pan-American Building had already destroyed the silhouette of the south facade and that one additional tower could do no further damage and might even provide a better background for the facade, the Commission disagreed, stating that it found the majestic approach from the south to be still unique in the city and that a 55-story tower atop the Terminal would be far more detrimental to its south facade than the Pan-American Building 375 feet away. Moreover, the Commission found that from closer vantage points the Pan Am Building and the other towers were largely cut off from view, which would not be the case of the mass on top of the Terminal planned under Breuer I. In conclusion, the Commission stated: 17 "[We have] no fixed rule against making additions to designated buildings—it all depends on how they are done . . . . But to balance a 55-story office tower above a flamboyant Beaux-Arts facade seems nothing more than an aesthetic joke. Quite simply, the tower would overwhelm the Terminal by its sheer mass. The 'addition' would be four times as high as the existing structure and would reduce the Landmark itself to the status of a curi sity. 18 "Landmarks cannot be divorced from their settings particularly when the setting is a dramatic and integral part of the original concept. The Terminal, in its setting, is a great example of urban design. Such examples are not so plentiful in New York City that we can afford to lose any of the few we have. And we must preserve them in a meaningful way—with alterations and additions of such character, scale, materials and mass as will protect, enhance and perpetuate the original design rather than overwhelm it." Id., at 2251.18 19 Appellants did not seek judicial review of the denial of either certificate. Because the Terminal site enjoyed a tax exemption,19 remained suitable for its present and future uses, and was not the subject of a contract of sale, there were no further administrative remedies available to appellants as to the Breuer I and Breuer II Revised plans. See n. 13, supra. Further, appellants did not avail themselves of the opportunity to develop and submit other plans for the Commission's consideration and approval. Instead, appellants filed suit in New York Supreme Court, Trial Term, claiming, inter alia, that the application of the Landmarks Preservation Law had "taken" their property without just compensation in violation of the Fifth and Fourteenth Amendments and arbitrarily deprived them of their property without due process of law in violation of the Fourteenth Amendment. Appellants sought a declaratory judgment, injunctive relief barring the city from using the Landmarks Law to impede the construction of any structure that might otherwise lawfully be constructed on the Terminal site, and damages for the "temporary taking" that occurred between August 2, 1967, the designation date, and the date when the restrictions arising from the Landmarks Law would be lifted. The trial court granted the injunctive and declaratory relief, but severed the question of damages for a "temporary taking."20 20 Appellees appealed, and the New York Supreme Court, Appellate Division, reversed. 50 A.D.2d 265, 377 N.Y.S.2d 20 (1975). The Appellate Division held that the restrictions on the development of the Terminal site were necessary to promote the legitimate public purpose of protecting landmarks and therefore that appellants could sustain their constitutional claims only by proof that the regulation deprived them of all reasonable beneficial use of the property. The Appellate Division held that the evidence appellants introduced at trial—"Statements of Revenues and Co ts," purporting to show a net operating loss for the years 1969 and 1971, which were prepared for the instant litigation—had not satisfied their burden.21 First, the court rejected the claim that these statements showed that the Terminal was operating at a loss, for in the court's view, appellants had improperly attributed some railroad operating expenses and taxes to their real estate operations and compounded that error by failing to impute any rental value to the vast space in the Terminal devoted to railroad purposes. Further, the Appellate Division concluded that appellants had failed to establish either that they were unable to increase the Terminal's commercial income by transforming vacant or underutilized space to revenue-producing use, or that the unused development rights over the Terminal could not have been profitably transferred to one or more nearby sites.22 The Appellate Division concluded that all appellants had succeeded in showing was that they had been deprived of the property's most profitable use, and that this showing did not establish that appellants had been unconstitutionally deprived of their property. 21 The New York Court of Appeals affirmed. 42 N.Y.2d 324, 397 N.Y.S.2d 914, 366 N.E.2d 1271 (1977). That court summarily rejected any claim that the Landmarks Law had "taken" property without "just compensation," id., at 329, 397 N.Y.S.2d, at 917, 366 N.E.2d, at 1274, indicating that there could be no "taking" since the law had not transferred control of the property to the city, but only restricted appellants' exploitation of it. In that circumstance, the Court of Appeals held that appellants' attack on the law could prevail only if the law deprived appellants of their property in violation of the Due Process Clause of the Fourteenth Amendment. Whether or not there was a denial of substantive due process turned on whether the restrictions deprived Penn Central of a "reasonable return" on the "privately created and privately managed ingredient" of the Terminal. Id., at 328, 397 N.Y.S.2d, at 916, 366 N.E.2d, at 1273.23 The Court of Appeals concluded that the Landmarks Law had not effected a denial of due process because: (1) the landmark regulation permitted the same use as had been made of the Terminal for more than half a century; (2) the appellants had failed to show that they could not earn a reasonable return on their investment in the Terminal itself; (3) even if the Terminal proper could never operate at a reasonable profit some of the income from Penn Central's extensive real estate holdings in the area, which include hotels and office buildings, must realistically be imputed to the Terminal; and (4) the development rights above the Terminal, which had been made transferable to numerous sites in the vicinity of the Terminal, one or two of which were suitable for the construction of office buildings, were valuable to appellants and provided "significant, perhaps 'fair,' compensation for the loss of rights above the terminal itself." Id., at 333-336, 397 N.Y.S.2d, at 922, 366 N.E.2d, at 1276-1278. 22 Observing that its affirmance was "[o]n the present record," and that its analysis had not been fully developed by counsel at any level of the New York judicial system, the Court of Appeals directed that counsel "should be entitled to present . . . any additional submissions which, in the light of [the court's] opinion, may usefully develop further the factors discussed." Id., at 337, 397 N.Y.S.2d, at 922, 366 N.E.2d, at 1279. Appellants chose not to avail themselves of this opportunity and filed a notice of appeal in this Court. We noted probable jurisdiction. 434 U.S. 983 (1977). We affirm. II 23 The issues presented by appellants are (1) whether the restrictions imposed by New York City's law upon appellants' exploitation of the Terminal site effect a "taking" of appellants' property for a public use within the meaning of the Fifth Amendment, which of course is made applicable to the States through the Fourteenth Amendment, see Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 239, 17 S.Ct. 581, 585, 41 L.Ed. 979 (1897), and, (2), if so, whether the transferable development rights afforded appellants constitute "just compensation" within the meaning of the Fifth Amendment.24 We need only address the question whether a "taking" has occurred.25 24 * Before considering appellants' specific contentions, it will be useful to review the factors that have shaped the jurisprudence of the Fifth Amendment injunction "nor shall private property be taken for public use, without just compensation." The question of what constitutes a "taking" for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty. While this Court has recognized that the "Fifth Amendment's guarantee . . . [is] designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole," Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960), this Court, quite simply, has been unable to develop any "set formula" for determining when "justice and fairness" require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons. See Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130 (1962). Indeed, we have frequently observed that whether a particular restriction will be rendered invalid by the government's failure to pay for any losses proximately caused by it depends largely "upon the particular circumstances [in that] case." United States v. Central Eureka Mining Co., 357 U.S. 155, 168, 78 S.Ct. 1097, 1104, 2 L.Ed.2d 1228 (1958); see United States v. Caltex, Inc., 344 U.S. 149, 156, 73 S.Ct. 200, 203, 97 L.Ed. 157 (1952). 25 In engaging in these essentially ad hoc, factual inquiries, the Court's decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. See Goldblatt v. Hempstead, supra, 369 U.S., at 594, 82 S.Ct., at 990. So, too, is the character of the governmental action. A "taking" may more readily be found when the interference with property can be characterized as a physical invasion by government, see, e. g., United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good. 26 "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law," Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 159, 67 L.Ed. 322 (1922), and this Court has accordingly recognized, in a wide variety of contexts, that government may execute laws or programs that adversely affect recognized economic values. Exercises of the taxing power are one obvious example. A second are the decisions in which this Court has dismissed "taking" challenges on the ground that, while the challenged government action caused economic harm, it did not interfere with interests that were sufficiently bound up with the reasonable expectations of the claimant to constitute "property" for Fifth Amendment purposes. See, e. g., United States v. Willow River Power Co., 324 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101 (1945) (interest in high-water level of river for runoff for tailwaters to maintain power head is not property); United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063 (1913) (no property interest can exist in navigable waters); see also Demorest v. City Bank Co., 321 U.S. 36, 64 S.Ct. 384, 88 L.Ed. 526 (1944); Muhlker v. Harlem R. Co., 197 U.S. 544, 25 S.Ct. 522, 49 L.Ed. 872 (1905); Sax, Takings and the Police Power, 74 Yale L.J. 36, 61-62 (1964). 27 More importantly for the present case, in instances in which a state tribunal reasonably concluded that "the health, safety, morals, or general welfare" would be promoted by prohibiting particular contemplated uses of land, this Court has upheld land-use regulations that destroyed or adversely affected recognized real property interests. See Nectow v. Cambridge, 277 U.S. 183, 188, 48 S.Ct. 447, 448, 72 L.Ed. 842 (1928). Zoning laws are, of course, the classic example, see Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926) (prohibition of industrial use); Gorieb v. Fox, 274 U.S. 603, 608, 47 S.Ct. 675, 677, 71 L.Ed. 1228 (1927) (requirement that portions of parcels be left unbuilt); Welch v. Swasey, 214 U.S. 91, 29 S.Ct. 567, 53 L.Ed. 923 (1909) (height restriction), which have been viewed as permissible governmental action even when prohibiting the most beneficial use of the property. See Goldblatt v. Hempstead, supra, 369 U.S., at 592-593, 82 S.Ct., at 988-989, and cases cited; see also Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 674, n. 8, 96 S.Ct. 2358, 2362 n. 8, 49 L.Ed.2d 132 (1976). 28 Zoning laws generally do not affect existing uses of real property, but "taking" challenges have also been held to be without merit in a wide variety of situations when the challenged governmental actions prohibited a beneficial use to which individual parcels had previously been devoted and thus caused substantial individualized harm. Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928), is illustrative. In that case, a state entomologist, acting pursuant to a state statute, ordered the claimants to cut down a large number of ornamental red cedar trees because they produced cedar rust fatal to apple trees cultivated nearby. Although the statute provided for recovery of any expense incurred in removing the cedars, and permitted claimants to use the felled trees, it did not provide compensation for the value of the standing trees or for the resulting decrease in market value of the properties as a whole. A unanimous Court held that this latter omission did not render the statute invalid. The Court held that the State might properly make "a choice between the preservation of one class of property and that of the other" and since the apple industry was important in the State involved, concluded that the State had not exceeded "its constitutional powers by deciding upon the destruction of one class of property [without compensation] in order to save another which, in the judgment of the legislature, is of greater value to the public." Id., at 279, 48 S.Ct., at 247. 29 Again, Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915), upheld a law prohibiting the claimant from continuing his otherwise lawful business of operating a brickyard in a particular physical community on the ground that the legislature had reasonably concluded that the presence of the brickyard was inconsistent with neighboring uses. See also United States v. Central Eureka Mining Co., supra (Government order closing gold mines so that skilled miners would be available for other mining work held not a taking); Atchison, T. & S. F. R. Co. v. Public Utilities Comm'n, 346 U.S. 346, 74 S.Ct. 92, 98 L.Ed. 51 (1953) (railroad may be required to share cost of constructing railroad grade improvement); Walls v. Midland Carbon Co., 254 U.S. 300, 41 S.Ct. 118, 65 L.Ed. 276 (1920) (law prohibiting manufacture of carbon black upheld); Reinman v. Little Rock, 237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 900 (1915) (law prohibiting livery stable upheld); Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887) (law prohibiting liquor business upheld). 30 Goldblatt v. Hempstead, supra, is a recent example. There, a 1958 city safety ordinance banned any excavations below the water table and effectively prohibited the claimant from continuing a sand and gravel mining business that had been operated on the particular parcel since 1927. The ourt upheld the ordinance against a "taking" challenge, although the ordinance prohibited the present and presumably most beneficial use of the property and had, like the regulations in Miller and Hadacheck, severely affected a particular owner. The Court assumed that the ordinance did not prevent the owner's reasonable use of the property since the owner made no showing of an adverse effect on the value of the land. Because the restriction served a substantial public purpose, the Court thus held no taking had occurred. It is, of course, implicit in Goldblatt that a use restriction on real property may constitute a "taking" if not reasonably necessary to the effectuation of a substantial public purpose, see Nectow v. Cambridge, supra; cf. Moore v. East Cleveland, 431 U.S. 494, 513-514, 97 S.Ct. 1932, 1943, 52 L.Ed.2d 531 (1977) (STEVENS, J., concurring), or perhaps if it has an unduly harsh impact upon the owner's use of the property. 31 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), is the leading case for the proposition that a state statute that substantially furthers important public policies may so frustrate distinct investment-backed expectations as to amount to a "taking." There the claimant had sold the surface rights to particular parcels of property, but expressly reserved the right to remove the coal thereunder. A Pennsylvania statute, enacted after the transactions, forbade any mining of coal that caused the subsidence of any house, unless the house was the property of the owner of the underlying coal and was more than 150 feet from the improved property of another. Because the statute made it commercially impracticable to mine the coal, id., at 414, 43 S.Ct., at 159, and thus had nearly the same effect as the complete destruction of rights claimant had reserved from the owners of the surface land, see id., at 414-415, 43 S.Ct., at 159-160, the Court held that the statute was invalid as effecting a "taking" without just compensation. See also Armstrong v. United States, 364 U.S. 40, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960) (Government's complete destruction of a materialman's lien in certain property held a "taking"); Hudson Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531, 52 L.Ed. 828 (1908) (if height restriction makes property wholly useless "the rights of property . . . prevail over the other public interest" and compensation is required). See generally Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165, 1229-1234 (1967). 32 Finally, government actions that may be characterized as acquisitions of resources to permit or facilitate uniquely public functions have often been held to constitute "takings." United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), is illustrative. In holding that direct overflights above the claimant's land, that destroyed the present use of the land as a chicken farm, constituted a "taking," Causby emphasized that Government had not "merely destroyed property [but was] using a part of it for the flight of its planes." Id., 328 U.S., at 262-263, n. 7, 66 S.Ct., at 1066. See also Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962) (overflights held a taking); Portsmouth Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287 (1922) (United States military installations' repeated firing of guns over claimant's land is a taking); United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746 (1917) (repeated floodings of land caused by water project is taking); but see YMCA v. United States, 395 U.S. 85, 89 S.Ct. 1511, 23 L.Ed.2d 117 (1969) (damage caused to building when federal officers who were seeking to protect building were attacked by rioters held not a taking). See generally Michelman, supra, at 1226-1229; Sax, Takings and the Police Power, 74 Yale L. . 36 (1964). B 33 In contending that the New York City law has "taken" their property in violation of the Fifth and Fourteenth Amendments, appellants make a series of arguments, which, while tailored to the facts of this case, essentially urge that any substantial restriction imposed pursuant to a landmark law must be accompanied by just compensation if it is to be constitutional. Before considering these, we emphasize what is not in dispute. Because this Court has recognized, in a number of settings, that States and cities may enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city, see New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); Village of Belle Terre v. Boraas, 416 U.S. 1, 9-10, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954); Welch v. Swasey, 214 U.S., at 108, 29 S.Ct., at 571, appellants do not contest that New York City's objective of preserving structures and areas with special historic, architectural, or cultural significance is an entirely permissible governmental goal. They also do not dispute that the restrictions imposed on its parcel are appropriate means of securing the purposes of the New York City law. Finally, appellants do not challenge any of the specific factual premises of the decision below. They accept for present purposes both that the parcel of land occupied by Grand Central Terminal must, in its present state, be regarded as capable of earning a reasonable return,26 and that the transferable development rights afforded appellants by virtue of the Terminal's designation as a landmark are valuable, even if not as valuable as the rights to construct above the Terminal. In appellants' view none of these factors derogate from their claim that New York City's law has effected a "taking." They first observe that the airspace above the Terminal is a valuable property interest, citing United States v. Causby, supra. They urge that the Landmarks Law has deprived them of any gainful use of their "air rights" above the Terminal and that, irrespective of the value of the remainder of their parcel, the city has "taken" their right to this superadjacent airspace, thus entitling them to "just compensation" measured by the fair market value of these air rights. 34 Apart from our own disagreement with appellants' characterization of the effect of the New York City law, see infra, at 134-135, the submission that appellants may establish a "taking" simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development is quite simply untenable. Were this the rule, this Court would have erred not only in upholding laws restricting the development of air rights, see Welch v. Swasey, supra, but also in approving those prohibiting both the subjacent, see Goldblatt v. Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962), and the lateral, see Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228 (1927), development of particular parcels.27 "Taking" jurisprudence does not divide a single parcel into discrete segments and ttempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole—here, the city tax block designated as the "landmark site." 35 Secondly, appellants, focusing on the character and impact of the New York City law, argue that it effects a "taking" because its operation has significantly diminished the value of the Terminal site. Appellants concede that the decisions sustaining other land-use regulations, which, like the New York City law, are reasonably related to the promotion of the general welfare, uniformly reject the proposition that diminution in property value, standing alone, can establish a "taking," see Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926) (75% diminution in value caused by zoning law); Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915) (871/2% diminution in value); cf. Eastlake v. Forest City Enterprises, Inc., 426 U.S., at 674 n. 8, 96 S.Ct., at 2362 n. 8, and that the "taking" issue in these contexts is resolved by focusing on the uses the regulations permit. See also Goldblatt v. Hempstead, supra. Appellants, moreover, also do not dispute that a showing of diminution in property value would not establish a taking if the restriction had been imposed as a result of historic-district legislation, see generally Maher v. New Orleans, 516 F.2d 1051 (CA5 1975), but appellants argue that New York City's regulation of individual landmarks is fundamentally different from zoning or from historic-district legislation because the controls imposed by New York City's law apply only to individuals who own selected properties. 36 Stated baldly, appellants' position appears to be that the only means of ensuring that selected owners are not singled out to endure financial hardship for no reason is to hold that any restriction imposed on individual landmarks pursuant to the New York City scheme is a "taking" requiring the payment of "just compensation." Agreement with this argument would, of course, invalidate not just New York City's law, but all comparable landmark legislation in the Nation. We find no merit in it. 37 It is true, as appellants emphasize, that both historic-district legislation and zoning laws regulate all properties within given physical communities whereas landmark laws apply only to selected parcels. But, contrary to appellants' suggestions, landmark laws are not like discriminatory, or "reverse spot," zoning: that is, a land-use decision which arbitrarily singles out a particular parcel for different, less favorable treatment than the neighboring ones. See 2 A. Rathkopf, The Law of Zoning and Planning 26-4, and n. 6 (4th ed. 1978). In contrast to discriminatory zoning, which is the antithesis of land-use control as part of some comprehensive plan, the New York City law embodies a comprehensive plan to preserve structures of historic or aesthetic interest wherever they might be found in the city,28 and as noted, over 400 landmarks and 31 historic districts have been designated pursuant to this plan. 38 Equally without merit is the related argument that the decision to designate a structure as a landmark "is inevitably arbitrary or at least subjective, because it is basically a matter of taste," Reply Brief for Appellants 22, thus unavoidably singling out individual landowners for disparate and unfair treatment. The argument has a particularly hollow ring in this case. For appellants not only did not seek judicial review of either the designation or of the denials of the certificates of appropriateness and of no exterior effect, but do not even now suggest that the Commission's decisions concerning the Terminal were in any sense arbitrary or unprincipled. But, in any event, a landmark owner has a right to judicial review of any Commission decision, and, quite simply, there is no basis whatsoever for a conclusion that courts will have any greater difficulty identifying arbitrary or discriminatory action in the context of landmark regulation than in the context of classic zoning or indeed in any other context.29 39 Next, appellants observe that New York City's law differs from zoning laws and historic-district ordinances in that the Landmarks Law does not impose identical or similar restrictions on all structures located in particular physical communities. It follows, they argue, that New York City's law is inherently incapable of producing the fair and equitable distribution of benefits and burdens of governmental action which is characteristic of zoning laws and historic-district legislation and which they maintain is a constitutional requirement if "just compensation" is not to be afforded. It is, of course, true that the Landmarks Law has a more severe impact on some landowners than on others, but that in itself does not mean that the law effects a "taking." Legislation designed to promote the general welfare commonly burdens some more than others. The owners of the brickyard in Hadacheck, of the cedar trees in Miller v. Schoene, and of the gravel and sand mine in Goldblatt v. Hempstead, were uniquely burdened by the legislation sustained in those cases.30 Similarly, zoning laws often affect some property owners more severely than others but have not been held to be invalid on that account. For example, the property owner in Euclid who wished to use its property for industrial purposes was affected far more severely by the ordinance than its neighbors who wished to use their land for residences. 40 In any event, appellants' repeated suggestions that they are solely burdened and unbenefited is factually inaccurate. This contention overlooks the fact that the New York City law applies to vast numbers of structures in the city in addition to the Terminal—all the structures contained in the 31 historic districts and over 400 individual landmarks, many of which are close to the Terminal.31 Unless we are to reject the judgment of the New York City Council that the preservation of landmarks benefits all New York citizens and all structures, both economically and by improving the quality of life in the city as a whole—which we are unwilling to do—we cannot conclude that the owners of the Terminal have in no sense been benefited by the Landmarks Law. Doubtless appellants believe they are more burdened than benefited by the law, but that must have been true, too, of the property owners in Miller, Hadacheck, Euclid, and Goldblatt.32 41 Appellants' final broad-based attack would have us treat the law as an instance, like that in United States v. Causby, in which government, acting in an enterprise capacity, has appropriated part of their property for some strictly governmental purpose. Apart from the fact that Causby was a case of invasion of airspace that destroyed the use of the farm beneath and this New York City law has in nowise impaired the present use of the Terminal, the Landmarks Law neither exploits appellants' parcel for city purposes nor facilitates nor arises from any entrepreneurial operations of the city. The situation is not remotely like that in Causby where the airspace above the property was in the flight pattern for military aircraft. The Landmarks Law's effect is simply to prohibit appellants or anyone else from occupying portions of the airspace above the Terminal, while permitting appellants to use the remainder of the parcel in a gainful fashion. This is no more an appropriation of property by government for its own uses than is a zoning law prohibiting, for "aesthetic" reasons, two or more adult theaters within a specified area, see Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), or a safety regulat on prohibiting excavations below a certain level. See Goldblatt v. Hempstead. C 42 Rejection of appellants' broad arguments is not, however, the end of our inquiry, for all we thus far have established is that the New York City law is not rendered invalid by its failure to provide "just compensation" whenever a landmark owner is restricted in the exploitation of property interests, such as air rights, to a greater extent than provided for under applicable zoning laws. We now must consider whether the interference with appellants' property is of such a magnitude that "there must be an exercise of eminent domain and compensation to sustain [it]." Pennsylvania Coal Co. v. Mahon, 260 U.S., at 413, 43 S.Ct., at 159. That inquiry may be narrowed to the question of the severity of the impact of the law on appellants' parcel, and its resolution in turn requires a careful assessment of the impact of the regulation on the Terminal site. 43 Unlike the governmental acts in Goldblatt, Miller, Causby, Griggs, and Hadacheck, the New York City law does not interfere in any way with the present uses of the Terminal. Its designation as a landmark not only permits but contemplates that appellants may continue to use the property precisely as it has been used for the past 65 years: as a railroad terminal containing office space and concessions. So the law does not interfere with what must be regarded as Penn Central's primary expectation concerning the use of the parcel. More importantly, on this record, we must regard the New York City law as permitting Penn Central not only to profit from the Terminal but also to obtain a "reasonable return" on its investment. 44 Appellants, moreover, exaggerate the effect of the law on their ability to make use of the air rights above the Terminal in two respects.33 First, it simply cannot be maintained, on this record, that appellants have been prohibited from occupying any portion of the airspace above the Terminal. While the Commission's actions in denying applications to construct an office building in excess of 50 stories above the Terminal may indicate that it will refuse to issue a certificate of appropriateness for any comparably sized structure, nothing the Commission has said or done suggests an intention to prohibit any construction above the Terminal. The Commission's report emphasized that whether any construction would be allowed depended upon whether the proposed addition "would harmonize in scale, material and character with [the Terminal]." Record 2251. Since appellants have not sought approval for the construction of a smaller structure, we do not know that appellants will be denied any use of any portion of the airspace above the Terminal.34 45 Second, to the extent appellants have been denied the right to build above the Terminal, it is not literally accurate to say that they have been denied all use of even those pre-existing air rights. Their ability to use these rights has not been abrogated; they are made transferable to at least eight parcels in the vicinity of the Terminal, one or two of which have been found suitable for the construction of new office buildings. Although appellants and others have argued that New York City's transferable development-rights program is far from ideal,35 the New York courts here supportably found that, at least in the case of the Terminal, the rights afforded are valuable. While these rights may well not have constituted "just compensation" if a "taking" had occurred, the rights nevertheless undo btedly mitigate whatever financial burdens the law has imposed on appellants and, for that reason, are to be taken into account in considering the impact of regulation. Cf. Goldblatt v. Hempstead, 369 U.S., at 594 n. 3, 82 S.Ct., at 990 n. 3. 46 On this record, we conclude that the application of New York City's Landmarks Law has not effected a "taking" of appellants' property. The restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but also afford appellants opportunities further to enhance not only the Terminal site proper but also other properties.36 47 Affirmed. 48 Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice STEVENS join, dissenting. 49 Of the over one million buildings and structures in the city of New York, appellees have singled out 400 for designation as official landmarks.1 The owner of a building might initially be pleased that his property has been chosen by a distinguished committee of architects, historians, and city planners for such a singular distinction. But he may well discover, as appellant Penn Central Transportation Co. did here, that the landmark designation imposes upon him a substantial cost, with little or no offsetting benefit except for the honor of the designation. The question in this case is whether the cost associated with the city of New York's desire to preserve a limited number of "landmarks" within its borders must be borne by all of its taxpayers or whether it can instead be imposed entirely on the owners of the individual properties. 50 Only in the most superficial sense of the word can this case be said to involve "zoning."2 Typical zoning restrictions may, it is true, so limit the prospective uses of a piece of property as to diminish the value of that property in the abstract because it may not be used for the forbidden purposes. But any such abstract decrease in value will more than likely be at least partially offset by an increase in value which flows from similar restrictions as to use on neighboring properties. All property owners in a designated area are placed under the same restrictions, not only for the benefit of the municipality as a whole but also for the common benefit of one another. In the words of Mr. Justice Holmes, speaking for the Court in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922), there is "an average recipro ity of advantage." 51 Where a relatively few individual buildings, all separated from one another, are singled out and treated differently from surrounding buildings, no such reciprocity exists. The cost to the property owner which results from the imposition of restrictions applicable only to his property and not that of his neighbors may be substantial—in this case, several million dollars with no comparable reciprocal benefits. And the cost associated with landmark legislation is likely to be of a completely different order of magnitude than that which results from the imposition of normal zoning restrictions. Unlike the regime affected by the latter, the landowner is not simply prohibited from using his property for certain purposes, while allowed to use it for all other purposes. Under the historic-landmark preservation scheme adopted by New York, the property owner is under an affirmative duty to preserve his property as a landmark at his own expense. To suggest that because traditional zoning results in some limitation of use of the property zoned, the New York City landmark preservation scheme should likewise be upheld, represents the ultimate in treating as alike things which are different. The rubric of "zoning" has not yet sufficed to avoid the well-established proposition that the Fifth Amendment bars the "Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960). See discussion infra, at pp. 147-150. 52 In August 1967, Grand Central Terminal was designated a landmark over the objections of its owner Penn Central. Immediately upon this designation, Penn Central, like all owners of a landmark site, was placed under an affirmative duty, backed by criminal fines and penalties, to keep "exterior portions" of the landmark "in good repair." Even more burdensome, however, were the strict limitations that were thereupon imposed on Penn Central's use of its property. At the time Grand Central was designated a landmark, Penn Central was in a precarious financial condition. In an effort to increase its sources of revenue, Penn Central had entered into a lease agreement with appellant UGP Properties, Inc., under which UGP would construct and operate a multistory office building cantilevered above the Terminal building. During the period of construction, UGP would pay Penn Central $1 million per year. Upon completion, UGP would rent the building for 50 years, with an option for another 25 years, at a guaranteed minimum rental of $3 million per year. The record is clear that the p oposed office building was in full compliance with all New York zoning laws and height limitations. Under the Landmarks Preservation Law, however, appellants could not construct the proposed office building unless appellee Landmarks Preservation Commission issued either a "Certificate of No Exterior Effect" or a "Certificate of Appropriateness." Although appellants' architectural plan would have preserved the facade of the Terminal, the Landmarks Preservation Commission has refused to approve the construction. 53 * The Fifth Amendment provides in part: "nor shall private property be taken for public use, without just compensation."3 In a very literal sense, the actions of appellees violated this constitutional prohibition. Before the city of New York declared Grand Central Terminal to be a landmark, Penn Central could have used its "air rights" over the Terminal to build a multistory office building, at an apparent value of several million dollars per year. Today, the Terminal cannot be modified in any form, including the erection of additional stories, without the permission of the Landmark Preservation Commission, a permission which appellants, despite good-faith attempts, have so far been unable to obtain. Because the Taking Clause of the Fifth Amendment has not always been read literally, however, the constitutionality of appellees' actions requires a closer scrutiny of this Court's interpretation of the three key words in the Taking Clause—"property," "taken," and "just compensation."4 54 Appellees do not dispute that valuable property rights have been destroyed. And the Court has frequently emphasized that the term "property" as used in the Taking Clause includes the entire "group of rights inhering in the citizen's [ownership]." United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945). The term is not used in the 55 "vulgar and untechnical sense of the physical thing with respect to which the citizen exercises rights recognized by law. [Instead, it] . . . denote[s] the group of rights inhering in the citizen's relation to the physical THING, AS THE RIGHT TO POSSESS, USE AND DISPOSE OF IT. . . . the constitutional provision is addressed to every sort of interest the citizen may possess." Id., at 377-378, 65 S.Ct., at 359 (emphasis added). 56 While neighboring landowners are free to use their land and "air rights" in any way consistent with the broad boundaries of New York zoning, Penn Central, absent the permission of appellees, must forever maintain its property in its present state.5 The property has been thus subjected to a nonconsensual servitude not borne by any neighboring or similar properties.6 B 57 Appellees have thus destroyed—in a literal sense, "taken" substantial property rights of Penn Central. While the term "taken" might have been narrowly interpreted to include only physical seizures of property rights, "the construction of the phrase has not been so narrow. The courts have held that the deprivation of the former owner rather than the accretion of a right or interest to the sovereign constitutes the taking." Id., at 378, 65 S.Ct., at 359. See also United States v. Lynah, 188 U.S. 445, 469, 23 S.Ct. 349, 47 L.Ed. 539 (1903);7 Dugan v. Rank, 372 U.S. 609, 625, 83 S.Ct. 999, 1009, 10 L.Ed.2d 15 (1963). Because "not every destruction or injury to property by governmental action has been held to be a 'taking' in the constitutional sense," Armstrong v. United States, 364 U.S., at 48, 80 S.Ct., at 1568, however, this does not end our inquiry. But an examination of the two exceptions where the destruction of property does not constitute a taking demonstrates that a compensable taking has occurred here. 58 * As early as 1887, the Court recognized that the government can prevent a property owner from using his property to injure others without having to compensate the owner for the value of the forbidden use. 59 "A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use by any one, for certain forbidden purposes, is prejudicial to the public interests. . . . The power which the States have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not—and, consistently with the existence and safety of organized society, cannot be burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community." Mugler v. Kansas, 123 U.S. 623, 668-669, 8 S.Ct. 273, 301, 31 L.Ed. 205. 60 Thus, there is no "taking" where a city prohibits the operation of a brickyard within a residential area, see Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.E . 348 (1915), or forbids excavation for sand and gravel below the water line, see Goldblatt v. Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962). Nor is it relevant, where the government is merely prohibiting a noxious use of property, that the government would seem to be singling out a particular property owner. Hadacheck, supra, at 413, 36 S.Ct., at 146.8 61 The nuisance exception to the taking guarantee is not coterminous with the police power itself. The question is whether the forbidden use is dangerous to the safety, health, or welfare of others. Thus, in Curtin v. Benson, 222 U.S. 78, 32 S.Ct. 31, 56 L.Ed. 102 (1911), the Court held that the Government, in prohibiting the owner of property within the boundaries of Yosemite National Park from grazing cattle on his property, had taken the owner's property. The Court assumed that the Government could constitutionally require the owner to fence his land or take other action to prevent his cattle from straying onto others' land without compensating him. 62 "Such laws might be considered as strictly regulations of the use of property, of so using it that no injury could result to others. They would have the effect of making the owner of land herd his cattle on his own land and of making him responsible for a neglect of it." Id., at 86, 32 S.Ct., at 33. 63 The prohibition in question, however, was "not a prevention of a misuse or illegal use but the prevention of a legal and essential use, an attribute of its ownership." Ibid. 64 Appellees are not prohibiting a nuisance. The record is clear that the proposed addition to the Grand Central Terminal would be in full compliance with zoning, height limitations, and other health and safety requirements. Instead, appellees are seeking to preserve what they believe to be an outstanding example of beaux-arts architecture. Penn Central is prevented from further developing its property basically because too good a job was done in designing and building it. The city of New York, because of its unadorned admiration for the design, has decided that the owners of the building must preserve it unchanged for the benefit of sightseeing New Yorkers and tourists. 65 Unlike land-use regulations, appellees' actions do not merely prohibit Penn Central from using its property in a narrow set of noxious ways. Instead, appellees have placed an affirmative duty on Penn Central to maintain the Terminal in its present state and in "good repair." Appellants are not free to use their property as they see fit within broad outer boundaries but must strictly adhere to their past use except where appellees conclude that alternative uses would not detract from the landmark. While Penn Central may continue to use the Terminal as it is presently designed, appellees otherwise "exercise complete dominion and control over the surface of the land," United States v. Causby, 328 U.S. 256, 262, 66 S.Ct. 1062, 1066, 90 L.Ed. 1206 (1946), and must compensate the owner for his loss. Ibid. "Property is taken in the constitutional sense when inroads are made upon an owner's use of it to an extent that, as between private parties, a servitude has been acquired." United States v. Dickinson, 331 U.S. 745, 748, 67 S.Ct. 1382, 1385, 91 L.Ed. 1789 (1947). See also Dugan v. Rank, supra, 372 U.S., at 625, 83 S.Ct., at 1009.9 2 66 Even where the government prohibits a noninjurious use, the Court has ruled that a taking does not take place if the prohibition applies over a broad cross section of land and thereby "secure[s] an average reciprocity of advantage." Pennsylvania Coal Co. v. Mahon, 260 U.S., at 415, 43 S.Ct., at 160.10 It is for this reason that zoning does not constitute a "taking." While zoning at times reduces individual property values, the burden is shared relatively evenly and it is reasonable to conclude that on the whole an individual who is harmed by one aspect of the zoning will be benefited by another. 67 Here, however, a multimillion dollar loss has been imposed on appellants; it is uniquely felt and is not offset by any benefits flowing from the preservation of some 400 other "landmarks" in New York City. Appellees have imposed a substantial cost on less than one one-tenth of one percent of the buildings in New York City for the general benefit of all its people. It is exactly this imposition of general costs on a few individuals at which the "taking" protection is directed. The Fifth Amendment 68 "prevents the public from loading upon one individual more than his just share of the burdens of government, and says that when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him." Monongahela Navigation Co. v. United States, 148 U.S. 312, 325, 13 S.Ct. 622, 626, 37 L.Ed. 463 (1893). 69 Less than 20 years ago, this Court reiterated that the 70 "Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S., at 49, 80 S.Ct., at 1569. 71 Cf. Nashville, C. & St. L. R. Co. v. Walters, 294 U.S. 405, 428-430, 55 S.Ct. 486, 494-495, 79 L.Ed. 949 (1935).11 72 As Mr. Justice Holmes pointed out in Pennsylvania Coal Co. v. Mahon, "the question at bottom" in an eminent domain case "is upon whom the loss of the changes desired should fall." 260 U.S., at 416, 43 S.Ct., at 160. The benefits that appellees believe will flow from preservation of the Grand Central Terminal will accrue to all the citizens of New York City. There is no reason to believe that appellants will enjoy a substantially greater share of these benefits. If the cost of preserving Grand Central Terminal were spread evenly across the entire population of the city of New York, the burden per person would be in cents per year a minor cost appellees would surely concede for the benefit accrued. Instead, however, appellees would impose the entire cost of several million dollars per year on Penn Central. But it is precisely this sort of discrimination that the Fifth Amendment prohibits.12 73 Appellees in response would argue that a taking only occurs where a property owner is denied all reasonable value of his property.13 The Court has frequently held that, even where a destruction of property rights would not otherwise constitute a taking, the inability of the owner to make a reasonable return on his property requires compensation under the Fifth Amendment. See, e. g., United States v. Lynah, 188 U.S., at 470, 23 S.Ct., at 357. But the converse is not true. A taking does not become a noncompensable exercise of police power simply because the government in its grace allows the owner to make some "reasonable" use of his property. "[I]t is the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial, that determines the question whether it is a taking." United States v. Cress, 243 U.S. 316, 328, 37 S.Ct. 380, 385, 61 L.Ed. 746 (1917); United States v. Causby, 328 U.S., at 266, 66 S.Ct., at 1068. See also Goldblatt v. Hempstead, 369 U.S., at 594, 82 S.Ct., at 990. C 74 Appellees, apparently recognizing that the constraints imposed on a landmark site constitute a taking for Fifth Amendment purposes, do not leave the property owner empty-handed. As the Court notes, ante, at 113-114, the property owner may theoretically "transfer" his previous right to develop the landmark property to adjacent properties if they are under his control. ppellees have coined this system "Transfer Development Rights," or TDR's. 75 Of all the terms used in the Taking Clause, "just compensation" has the strictest meaning. The Fifth Amendment does not allow simply an approximate compensation but requires "a full and perfect equivalent for the property taken." Monongahela Navigation Co. v. United States, 148 U.S., at 326, 13 S.Ct., at 626. 76 "[I]f the adjective 'just' had been omitted, and the provision was simply that property should not be taken without compensation, the natural import of the language would be that the compensation should be the equivalent of the property. And this is made emphatic by the adjective 'just.' There can, in view of the combination of those two words, be no doubt that the compensation must be a full and perfect equivalent for the property taken." Ibid. 77 See also United States v. Lynah, supra, 188 U.S., at 465, 23 S.Ct., at 355; United States v. Pewee Coal Co., 341 U.S. 114, 117, 71 S.Ct. 670, 671, 95 L.Ed. 809 (1951). And the determination of whether a "full and perfect equivalent" has been awarded is a "judicial function." United States v. New River Collieries Co., 262 U.S. 341, 343-344, 43 S.Ct. 565, 566-567, 67 L.Ed. 1014 (1923). The fact that appellees may believe that TDR's provide full compensation is irrelevant. 78 "The legislature may determine what private property is needed for public purposes—that is a question of a political and legislative character; but when the taking has been ordered, then the question of compensation is judicial. It does not rest with the public, taking the property, through Congress or the legislature, its representative, to say what compensation shall be paid, or even what shall be the rule of compensation. The Constitution has declared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry." Monongahela Navigation Co. v. United States, supra, 148 U.S., at 327, 13 S.Ct., at 626. 79 Appellees contend that, even if they have "taken" appellants' property, TDR's constitute "just compensation." Appellants, of course, argue that TDR's are highly imperfect compensation. Because the lower courts held that there was no "taking," they did not have to reach the question of whether or not just compensation has already been awarded. The New York Court of Appeals' discussion of TDR's gives some support to appellants: 80 "The many defects in New York City's program for development rights transfers have been detailed elsewhere . . . . The area to which transfer is permitted is severely limited [and] complex procedures are required to obtain a transfer permit." 42 N.Y.2d 324, 334-335, 397 N.Y.S.2d 914, 920, 366 N.E.2d 1271, 1277 (1977). 81 And in other cases the Court of Appeals has noted that TDR's have an "uncertain and contingent market value" and do "not adequately preserve" the value lost when a building is declared to be a landmark. French Investing Co. v. City of New York, 39 N.Y.2d 587, 591, 385 N.Y.S.2d 5, 7, 350 N.E.2d 381, 383, appeal dismissed 429 U.S. 990, 97 S.Ct. 515, 50 L.Ed.2d 602 (1976). On the other hand, there is evidence in the record that Penn Central has been offered substantial amounts for its TDR's. Because the record on appeal is relatively slim, I would remand to the Court of Appeals for a determination of whether TDR's constitute a "full and perfect equivalent for the property taken."14 II 82 Over 50 years ago, Mr. Justice Holmes, speaking for the Court, warned that the courts were "in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." Pennsylvania Coal Co. v. Mahon, 260 U.S., at 416, 43 S.Ct., at 160. The Court's opinion in this case demonstrates that the danger thus foreseen has not abated. The city of New York is in a precarious financial state, and some may believe that the costs of landmark preservation will be more easily borne by corporations such as Penn Central than the overburdened individual taxpayers of New York. But these concerns do not allow us to ignore past precedents construing the Eminent Domain Clause to the end that the desire to improve the public condition is, indeed, achieved by a shorter cut than the constitutional way of paying for the change. 1 See National Trust for Historic Preservation, A Guide to State Historic Preservation Programs (1976); National Trust for Historic Preservation, Directory of Landmark and Historic District Commissions (1976). In addition to these state and municipal legislative efforts, Congress has determined that "the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people," National Historic Preservation Act of 1966, 80 Stat. 915, 16 U.S.C. § 470(b) (1976 ed.), and has enacted a series of measures designed to encourage preservation of sites and structures of historic, architectural, or cultural significance. See generally Gray, The Response of Federal Legislation to Historic Preservation, 36 Law & Contemp. Prob. 314 (1971). 2 Over one-half of the buildings listed in the Historic American Buildings Survey, begun by the Federal Government in 1933, have been destroyed. See Costonis, The Chicago Plan: Incentive Zoning and the Preservation of Urban Landmarks, 85 Harv.L.Rev. 574, 574 n. 1 (1972), citing Huxtable, Bank's Building Plan Sets Off Debate on "Progress," N.Y. Times, Jan. 17, 1971, section 8, p. 1, col. 2. 3 See, e. g., N.Y.C. Admin. Code, § 205-1.0(a) (1976). 4 Gilbert, Introduction, Precedents for the Future, 36 Law & Contemp. Prob. 311, 312 (1971), quoting address by Robert Stipe, 1971 Conference on Preservation Law, Washington, D. C., May 1, 1971 (unpublished text, pp. 6-7). 5 See N.Y.Gen.Mun.Law § 96-a (McKinney 1977). It declares that it is the public policy of the State of New York to preserve structures and areas with special historical or aesthetic interest or value and authorizes local governments to impose reasonable restrictions to perpetuate such structures and areas. 6 The consensus is that widespread public ownership of historic properties in urban settings is neither feasible nor wise. Public ownership reduces the tax base, burdens the public budget with costs of acquisitions and maintenance, and results in the preservation of public buildings as museums and similar facilities, rather than as economically productive features of the urban scene. See Wilson & Winkler, The Response of State Legislation to Historic Preservation, 36 Law & Contemp. Prob. 329, 330-331, 339-340 (1971). 7 See Costonis, supra n.2, at 580-581; Wilson & Winkler, supra n.6; Rankin, Operation and Interpretation of the New York City Landmark Preservation Law, 36 Law & Contemp. Prob. 366 (1971). 8 The ordinance creating the Co mission requires that it include at least three architects, one historian qualified in the field, one city planner or landscape architect, one realtor, and at least one resident of each of the city's five boroughs. N.Y.C. Charter § 534 (1976). In addition to the ordinance's requirements concerning the composition of the Commission, there is, according to a former chairman, a "prudent tradition" that the Commission include one or two lawyers, preferably with experience in municipal government, and several laymen with no specialized qualifications other than concern for the good of the city. Goldstone, Aesthetics in Historic Districts, 36 Law & Contemp. Prob. 379, 384-385 (1971). 9 " 'Landmark.' Any improvement, any part of which is thirty years old or older, which has a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation and which has been designated as a landmark pursuant to the provisions of this chapter." § 207-1.0(n). 10 " 'Landmark site.' An improvement parcel or part thereof on which is situated a landmark and any abutting improvement parcel or part thereof used as and constituting part of the premises on which the landmark is situated, and which has been designated as a landmark site pursuant to the provisions of this chapter." § 207-1.0(o ). 11 " 'Historic district.' Any area which: (1) contains improvements which: (a) have a special character or special historical or aesthetic interest or value; and (b) represent one or more periods or styles of architecture typical of one or more eras in the history of the city; and (c) cause such area, by reason of such factors, to constitute a distinct section of the city; and (2) has been designated as a historic district pursuant to the provisions of this chapter." § 207-1.0(h). The Act also provides for the designation of a "scenic landmark," see § 207-1.0(w), and an "interior landmark." See § 207-1.0(m). 12 See Landmarks Preservation Commission of the City of New York, Landmarks and Historic Districts (1977). Although appellants are correct in noting that some of the designated landmarks are publicly owned, the vast majority are, like Grand Central Terminal, privately owned structures. 13 If the owner of a non-tax-exempt parcel has been denied certificates of appropriateness for a proposed alteration and shows that he is not earning a reasonable return on the property in its present state, the Commission and other city agencies must assume the burden of developing a plan that will enable the landmark owner to earn a reasonable return on the landmark site. The plan may include, but need not be limited to, partial or complete tax exemption, remission of taxes, and authorizations for alterations, construction, or reconstruction appropriate for and not inconsistent with the purposes of the law. § 207-8.0(c). The owner is free to accept or reject a plan devised by the Commission and approved by the other city agencies. If he accepts the plan, he proceeds to operate the property pursuant to the plan. If he rejects the plan, the Commission may recommend that the city proceed by eminent domain to acquire a protective interest in the landmark, but if the city does not do so within a specified time period, the Commission must issue a notice allowing the property owner to proceed with the alteration or improvement as originally proposed in his application for a certificate of appropriateness. Tax-exempt structures are treated somewhat differently. They become eligible for special treatment only if four preconditions are satisfied: (1) the owner previously entered into an agreement to sell the parcel that was contingent upon the issuance of a certificate of approval; (2) the property, as it exists at the time of the request, is not capable of earning a reasonable return; (3) the structure is no longer suitable to its past or present purposes; and (4) the prospective buyer intends to alter the landmark structure. In the event the owner demonstrates that the property in its present state is not earning a reasonable return, the Commission must either find another buyer for it or allow the sale and construction to proceed. But this is not the only remedy available for owners of tax-exempt landmarks. As the case at bar illustrates, see infra, at 121, if an owner files suit and establishes that he is incapable of earning a "reasonable return" on the site in its present state, he can be afforded judicial relief. Similarly, where a landmark owner who enjoys a tax exemption has demonstrated that the landmark structure, as restricted, is totally inadequate for the owner's "legitimate needs," the law has been held invalid as applied to that parcel. See Lutheran Church v. City of New York, 35 N.Y.2d 121, 359 N.Y.S.2d 7, 316 N.E.2d 305 (1974). 14 To obtain approval for a proposed transfer, the landmark owner must follow the following procedure. First, he must obtain the permission of the Commission which will examine the plans for the development of the transferee lot to determine whether the planned construction would be compatible with the landmark. Second, he must obtain the approbation of New York City's Planning Commission which will focus on the effects of the transfer on occupants of the buildings in the vicinity of the transferee lot and whether the landmark owner will preserve the landmark. Finally, the matter goes to the Board of Estimate, which has final authority to grant or deny the application. See also Costonis, supra n.2, at 585-586 (1972). 15 The Terminal's present foundation includes columns, which were built into it for the express purpose of supporting the proposed 20-story tower. 16 The Commission's report stated: "Grand Central Station, one of the great buildings of America, evokes a spirit that is unique in this City. It combines distinguished architecture with a brilliant engineering solution, wedded t one of the most fabulous railroad terminals of our time. Monumental in scale, this great building functions as well today as it did when built. In style, it represents the best of the French Beaux Arts." Record 2240. 17 Appellants also submitted a plan, denominated Breuer II, to the Commission. However, because appellants learned that Breuer II would have violated existing easements, they substituted Breuer II Revised for Breuer II, and the Commission evaluated the appropriateness only of Breuer II Revised. 18 In discussing Breuer I, the Commission also referred to a number of instances in which it had approved additions to landmarks: "The office and reception wing added to Gracie Mansion and the school and church house added to the 12th Street side of the First Presbyterian Church are examples that harmonize in scale, material and character with the structures they adjoin. The new Watch Tower Bible and Tract Society building on Brooklyn Heights, though completely modern in idiom, respects the qualities of its surroundings and will enhance the Brooklyn Heights Historic District, as Butterfield House enhances West 12th Street, and Breuer's own Whitney Museum its Madison Avenue locale." Record 2251. 19 See N.Y. Real Prop. Tax Law § 489-aa et seq. (McKinney Supp. 1977). 20 Although that court suggested that any regulation of private property to protect landmark values was unconstitutional if "just compensation" were not afforded, it also appeared to rely upon its findings: first, that the cost to Penn Central of operating the Terminal building itself, exclusive of purely railroad operations, exceeded the revenues received from concessionaires and tenants in the Terminal; and second, that the special transferable development rights afforded Penn Central as an owner of a landmark site did not "provide compensation to plaintiffs or minimize the harm suffered by plaintiffs due to the designation of the Terminal as a landmark." 21 These statements appear to have reflected the costs of maintaining the exterior architectural features of the Terminal in "good repair" as required by the law. As would have been apparent in any case therefore, the existence of the duty to keep up the property was here—and will presumably always be—factored into the inquiry concerning the constitutionality of the landmark restrictions. The Appellate Division also rejected the claim that an agreement of Penn Central with the Metropolitan Transit Authority and the Connecticut Transit Authority provided a basis for invalidating the application of the Landmarks Law. 22 The record reflected that Penn Central had given serious consideration to transferring some of those rights to either the Biltmore Hotel or the Roosevelt Hotel. 23 The Court of Appeals suggested that in calculating the value of the property upon which appellants were e titled to earn a reasonable return, the "publicly created" components of the value of the property—i. e., those elements of its value attributable to the "efforts of organized society" or to the "social complex" in which the Terminal is located—had to be excluded. However, since the record upon which the Court of Appeals decided the case did not, as that court recognized, contain a basis for segregating the privately created from the publicly created elements of the value of the Terminal site and since the judgment of the Court of Appeals in any event rests upon bases that support our affirmance see infra, this page, we have no occasion to address the question whether it is permissible or feasible to separate out the "social increments" of the value of property. See Costonis, The Disparity Issue: A Context for the Grand Central Terminal Decision, 91 Harv.L.Rev. 402, 416-417 (1977). 24 Our statement of the issues is a distillation of four questions presented in the jurisdictional statement: "Does the social and cultural desirability of preserving historical landmarks through government regulation derogate from the constitutional requirement that just compensation be paid for private property taken for public use? "Is Penn Central entitled to no compensation for that large but unmeasurable portion of the value of its rights to construct an office building over the Grand Central Terminal that is said to have been created by the efforts of 'society as an organized entity'? "Does a finding that Penn Central has failed to establish that there is no possibility, without exercising its development rights, of earning a reasonable return on all of its remaining properties that benefit in any way from the operations of the Grand Central Terminal warrant the conclusion that no compensation need be paid for the taking of those rights? "Does the possibility accorded to Penn Central, under the landmark-preservation regulation, of realizing some value at some time by transferring the Terminal development rights to other buildings, under a procedure that is conceded to be defective, severely limited, procedurally complex and speculative, and that requires ultimate discretionary approval by governmental authorities, meet the constitutional requirements of just compensation as applied to landmarks?" Jurisdictional Statement 3-4. The first and fourth questions assume that there has been a taking and raise the problem whether, under the circumstances of this case, the transferable development rights constitute "just compensation." The second and third questions, on the other hand, are directed to the issue whether a taking has occurred. 25 As is implicit in our opinion, we do not embrace the pr position that a "taking" can never occur unless government has transferred physical control over a portion of a parcel. 26 Both the Jurisdictional Statement 7-8, n. 7, and Brief for Appellants 8 n. 7 state that appellants are not seeking review of the New York courts' determination that Penn Central could earn a "reasonable return" on its investment in the Terminal. Although appellants suggest in their reply brief that the factual conclusions of the New York courts cannot be sustained unless we accept the rationale of the New York Court of Appeals, see Reply Brief for Appellants 12 n. 15, it is apparent that the findings concerning Penn Central's ability to profit from the Terminal depend in no way on the Court of Appeals' rationale. 27 These cases dispose of any contention that might be based on Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), that full use of air rights is so bound up with the investment-backed expectations of appellants that governmental deprivation of these rights invariably—i. e., irrespective of the impact of the restriction on the value of the parcel as a whole constitutes a "taking." Similarly, Welch, Goldblatt, and Gorieb illustrate the fallacy of appellants' related contention that a "taking" must be found to have occurred whenever the land-use restriction may be characterized as imposing a "servitude" on the claimant's parcel. 28 A though the New York Court of Appeals contrasted the New York City Landmarks Law with both zoning and historic-district legislation and stated at one point that landmark laws do not "further a general community plan," 42 N.Y.2d 324, 330, 397 N.Y.S.2d 914, 918, 366 N.E.2d 1271, 1274 (1977), it also emphasized that the implementation of the objectives of the Landmarks Law constitutes an "acceptable reason for singling out one particular parcel for different and less favorable treatment." Ibid., 397 N.Y.S.2d, at 918, 366 N.E.2d, at 1275. Therefore, we do not understand the New York Court of Appeals to disagree with our characterization of the law. 29 When a property owner challenges the application of a zoning ordinance to his property, the judicial inquiry focuses upon whether the challenged restriction can reasonably be deemed to promote the objectives of the community land-use plan, and will include consideration of the treatment of similar parcels. See generally Nectow v. Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842 (1928). When a property owner challenges a landmark designation or restriction as arbitrary or discriminatory, a similar inquiry presumably will occur. 30 Appellants attempt to distinguish these cases on the ground that, in each, government was prohibiting a "noxious" use of land and that in the present case, in contrast, appellants' proposed construction above the Terminal would be beneficial. We observe that the uses in issue in Hadacheck, Miller, and Goldblatt were p rfectly lawful in themselves. They involved no "blameworthiness, . . . moral wrongdoing or conscious act of dangerous risk-taking which induce[d society] to shift the cost to a pa[rt]icular individual." Sax, Takings and the Police Power, 74 Yale L.J. 36, 50 (1964). These cases are better understood as resting not on any supposed "noxious" quality of the prohibited uses but rather on the ground that the restrictions were reasonably related to the implementation of a policy—not unlike historic preservation—expected to produce a widespread public benefit and applicable to all similarly situated property. Nor, correlatively, can it be asserted that the destruction or fundamental alteration of a historic landmark is not harmful. The suggestion that the beneficial quality of appellants' proposed construction is established by the fact that the construction would have been consistent with applicable zoning laws ignores the development in sensibilities and ideals reflected in landmark legislation like New York City's. Cf. West Bros. Brick Co. v. Alexandria, 169 Va. 271, 282-283, 192 S.E. 881, 885-886, appeal dismissed for want of a substantial federal question, 302 U.S. 658, 58 S.Ct. 369, 82 L.Ed. 508 (1937). 31 There are some 53 designated landmarks and 5 historic districts or scenic landmarks in Manhattan between 14th and 59th Streets. See Landmarks Preservation Commission, Landmarks and Historic Districts (1977). 32 It is, of course, true that the fact the duties imposed by zoning and historic-district legislation apply throughout particular physical communities provides assurances against arbitrariness, but the applicability of the Landmarks Law to a large number of parcels in the city, in our view, provides comparable, if not identical, assurances. 33 Appellants, of course, argue at length that the transferable development rights, while valuable, do not constitute "just compensation." Brief for Appellants 36-43. 34 Counsel for appellants admitted at oral argument that the Commission has not suggested that it would not, for example, approve a 20-story office tower along the lines of that which was part of the original plan for the Terminal. See Tr. of Oral Arg. 19. 35 See Costonis, supra n. 2, at 585-589. 36 We emphasize that our holding today is on the present record, which in turn is based on Penn Central's present ability to use the Terminal for its intended purposes and in a gainful fashion. The city conceded at oral argument that if appellants can demonstrate at some point in the future that circumstances have so changed that the Terminal ceases to be "economically viable," appellants may obtain relief. See Tr. of Oral Arg. 42-43. 1 A large percentage of the designated landmarks are public structures (such as the Brooklyn Bridge, City Hall, the Statute of Liberty and the Municipal Asphalt Plant) and thus do not raise Fifth Amendment taking questions. See Landmarks Preservation Commission of the City of New York, Landmarks and Historic Districts (1977 and Jan. 10, 1978, Supplement). Although the Court refers to the New York ordinance as a comprehensive program to preserve historic landmarks, ante, at 107, the ordinance is not limited to historic buildings and gives little guidance to the Landmarks Preservation Commission in its selection of landmark sites. Section 207-1.0(n) of the Landmarks Preservation Law, as set forth in N.Y.C. Admin. Code, ch. 8-A (1976), requires only that the selected landmark be at least 30 years old and possess "a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation." 2 Even the New York Court of Appeals conceded that "[t]his is not a zoning case. . . . Zoning restrictions operate to advance a comprehensive community plan for the common good. Each property owner in the zone is both benefited and restricted from exploitation, presumably without discrimination, except for permitted continuing nonconforming uses. The restrictions may be designed to maintain the general character of the area, or to assure orderly development, objectives inuring to the benefit of all, which property owners acting individually would find difficult or impossible to achieve . . . . "Nor does this case involve landmark regulation of a historic district. . . . [In historic districting, as in traditional zoning,] owners although burdened by the restrictions also benefit, to some extent, from the furtherance of a general community plan. * * * * * "Restrictions on alteration of individual landmarks are not designed to further a general community plan. Landmark restrictions are designed to prevent alteration or demolition of a single piece of property. To this extent, such restrictions resemble 'discriminatory' zoning restrictions, properly condemned . . . ." 42 N.Y.2d 324, 329-330, 397 N.Y.S.2d 914, 917-918, 366 N.E.2d 1271, 1274 (1977). 3 The guarantee that private property shall not be taken for public use without just compensation is applicable to the States through the Fourteenth Amendment. Although the state "legislature may prescribe a form of procedure to be observed in the taking of private property for public use, . . . it is not due process of law if provision be not made for compensation." Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 236, 17 S.Ct. 581, 584, 41 L.Ed. 979 (1897). 4 The Court's opinion touches base with, or at least attempts to touch base with, most of the major eminent domain cases decided by this Court. Its use of them, however, is anything but meticulous. In citing to United States v. Caltex, Inc., 344 U.S. 149, 156, 73 S.Ct. 200, 97 L.Ed. 157 (1952), for example, ante, at 124, the only language remotely applicable to eminent domain is stated in terms of "the destruction of respondents' terminals by a trained team of engineers in the face of their impending seizure by the enemy." 344 U.S., at 156, 73 S.Ct., at 203. 5 In particular, Penn Central cannot increase the height of the Terminal. This Court has previously held that the "air rights" over an area of land are "property" for urposes of the Fifth Amendment. See United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946) ("air rights" taken by low-flying airplanes); Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962) (same); Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287 (1922) (firing of projectiles over summer resort can constitute taking). See also Butler v. Frontier Telephone Co., 186 N.Y. 486, 79 N.E. 716 (1906) (stringing of telephone wire across property constitutes a taking). 6 It is, of course, irrelevant that appellees interfered with or destroyed property rights that Penn Central had not yet physically used. The Fifth Amendment must be applied with "reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future." Boom Co. v. Patterson, 98 U.S. 403, 408, 25 L.Ed. 206 (1879) (emphasis added). 7 "Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors." 188 U.S., at 470, 23 S.Ct., at 357. 8 Each of the cases cited by the Court for the proposition that legislation which severely affects some landowners but not others does not effect a "taking" involved noxious uses of property. See Hadacheck; Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928); Goldblatt. See ante, at 125-127, 133. 9 In Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463 (1893), the Monongahela company had expended large sums of money in improving the Monongahela River by means of locks and dams. When the United States condemned this property for its own use, the Court held that full compensation had to be awarded. "Suppose, in the improvement of a navigable stream, it was deemed essential to construct a canal with locks, in order to pass around rapids or falls. Of the power of Congress to condemn whatever land may be necessary for such canal, there can be no question; and of the equal necessity of paying full compensation for all private property taken there can be as little doubt." Id., at 337, 13 S.Ct., at 630. Under the Court's rationale, however, where the Government wishes to preserve a pre-existing canal system for public use, it need not condemn the property but need merely order that it be preserved in its present form and be kept "in good repair." 10 Appellants concede that the preservation of buildings of historical or aesthetic importance is a permissible objective of state action. Brief for Appellants 12. Cf. Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954); United States v. Gettysburg Electric R. Co., 160 U.S. 668, 16 S.Ct. 427, 40 L.Ed. 576 (1896). For the reasons noted in the text, historic zoning, as has been undertaken by cities, such as New Orleans, may well not require compensation under the Fifth Amendment. 11 "It is true that the police power embraces regulations designed to promote public convenience or the general welfare, and not merely those in the interest of public health, safety and morals. . . . But when particular individuals are singled out to bear the cost of advancing the public convenience, that imposition must bear some reasonable relation to the evils to be eradicated or the advantages to be secured. . . . While moneys raised by general taxation may constitutionally be applied to purposes from which the individual taxed may receive no benefit, and indeed, suffer serious detriment, . . . so-called assessments for public improvements laid upon particular property o ners are ordinarily constitutional only if based on benefits received by them." 294 U.S., at 429-430, 55 S.Ct., at 494-495. 12 The fact that the Landmarks Preservation Commission may have allowed additions to a relatively few landmarks is of no comfort to appellants. Ante, at 118 n. 18. Nor is it of any comfort that the Commission refuses to allow appellants to construct any additional stories because of their belief that such construction would not be aesthetic. Ante, at 117-118. 13 Difficult conceptual and legal problems are posed by a rule that a taking only occurs where the property owner is denied all reasonable return on his property. Not only must the Court define "reasonable return" for a variety of types of property (farmlands, residential properties, commercial and industrial areas), but the Court must define the particular property unit that should be examined. For example, in this case, if appellees are viewed as having restricted Penn Central's use of its "air rights," all return has been denied. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922). The Court does little to resolve these questions in its opinion. Thus, at one point, the Court implies that the question is whether the restrictions have "an unduly harsh impact upon the owner's use of the property," ante, at 127; at another point, the question is phrased as whether Penn Central can obtain "a 'reasonable return' on its investment," ante, at 136; and, at yet another point, the question becomes whether the landmark is "economically viable," ante, at 138 n. 36. 14 The Court suggests, ante, at 131, that if appellees are held to have "taken" property sights of landmark owners, not only the New York City Landmarks Preservation Law, but "all comparable landmark legislation in the Nation" must fall. This assumes, of course, that TDR's are not "just compensation" for the property rights destroyed. It also ignores the fact that many States and cities in the Nation have chosen to preserve landmarks by purchasing or condemning restrictive easements over the facade of the landmarks and are apparently quite satisfied with the results. See, e. g., Ore.Rev.Stat. §§ 271.710, 271.720 (1977); Md.Ann.Code, Art. 41, § 181A (1978); Va.Code §§ 10-145.1 and 10-138(e) (1978); Richmond, Va., City Code §§ 21-23 et seq. (1975). The British National Trust has effectively used restrictive easements to preserve landmarks since 1937. See National Trust Act, 1937, 1 Edw. 8 and 1 Geo. 6 ch. lvii, §§ 4 and 8. Other States and cities have found that tax incentives are also an effective means of encouraging the private preservation of landmark sites. See, e. g., Conn.Gen.Stat. § 12-127a (1977); Ill.Rev.Stat., ch. 24, § 11-48.2-6 (1976); Va.Code § 10-139 (1978). The New York City Landmarks Preservation Law departs drastically from these traditional, and constitutional, means of preserving landmarks.

34

438 U.S. 59 98 S.Ct. 2620 57 L.Ed.2d 595 DUKE POWER COMPANY, Appellant,v.CAROLINA ENVIRONMENTAL STUDY GROUP, INC., et al. UNITED STATES NUCLEAR REGULATORY COMMISSION et al., Appellants, v. CAROLINA ENVIRONMENTAL STUDY GROUP, INC., et al. Nos. 77-262, 77-375. Argued March 20, 1978. Decided June 26, 1978. Syllabus The Price-Anderson Act (Act), having the dual purpose of protecting the public and encouraging the development of the nuclear energy industry, imposes a $560 million limitation on liability for nuclear accidents resulting from the operation of federally licensed private nuclear power plants, requires those indemnified by the $560 million fund established under the Act to waive all legal defenses in the event of a substantial nuclear accident, and further provides that in the event of a nuclear accident involving damages in excess of the amount of aggregate liability Congress "will take whatever action is deemed necessary and appropriate to protect the public from the consequences of a disaster of such magnitude." Appellant Duke Power Co. (Duke), an investor-owned public utility which is constructing nuclear power plants in North and South Carolina, and appellant Nuclear Regulatory Commission (NRC), were sued by appellees (an environmental organization, a labor union, and a number of individuals who live near the plants in question) who sought a declaration that the Act is unconstitutional. After finding, inter alia, that the "immediate" adverse effects upon appellees resulting from the operation of the plants included thermal pollution of lakes in the vicinity, and emission of non-natural radiation into appellees' environment, and also that there was a "substantial likelihood" that Duke would not be able to complete construction and maintain operation of the plants "but for" the protection provided by the Act, the District Court held that appellees had standing to challenge the Act's constitutionality and that their claim could be properly adjudicated. The court then went on to hold that the Act violated the Due Process Clause of the Fifth Amendment because the amount of recovery is not rationally related to the potential losses, the Act tends to encourage irresponsibility in matters of safety and environmental protection, and there is no quid pro quo for the liability limitation; and, the Act also offended the equal protection component of the Fifth Amendment by forcing the victims of nuclear incidents to bear the burden of injury, whereas society as a whole benefits from the existence and development of nuclear power. Held: 1. The District Court had jurisdiction over appellees' complaint against the NRC under 28 U.S.C. § 1331(a) (1976 ed.) rather than § 1337, the jurisdictional base pleaded. The complaint, fairly read, raised two basic challenges to the Act, both of which are derived from the Fifth Amendment. Appellees' cause of action against the NRC directly under the Constitution is sufficiently substantial to sustain jurisdiction; the further question of whether such a cause of action is to be generally recognized need not be decided on this record. Pp. 68-72. 2. Appellees have standing to challenge the Act's constitutionality. That several of the "immediate" adverse effects of construction of the plants were found to harm appellees is sufficient to satisfy the "injury in fact" prong of the constitutional requirement for standing. And the finding as to the "but for" causal connection between the Act and the construction of the plants satisfies the second prong of the constitutional test for standing, that the exercise of the court's remedial powers would redress the claimed injuries. Pp. 72-81. 3. The constitutional challenges to the Act are ripe for adjudication, since all parties would be adversely affected by a decision to defer definitive resolution of the constitutional validity vel non of the Act. To the extent that "issues of ripeness involve, at least in part, the existence of a live 'Case or Controversy.' " Regional Rail Reorganization Act Cases, 419 U.S. 102, 138, 95 S.Ct. 335, 355, 42 L.Ed.2d 320 (1974), the fact that appellees will sustain immediate injury from the operation of the disputed power plants and that such injury would be redressed by the relief requested satisfies this requirement. Pp. 81-82. 4. The Act does not violate the Due Process Clause of the Fifth Amendment. Pp. 82-94. (a) The record supports the need for the imposition of a statutory limit on liability to encourage private industry participation and hence bears a rational relationship to Congress' concern for stimulating private industry's involvement in the production of nuclear electric energy. P. 84. (b) Assuming, arguendo, that the $560 million fund would not insure full recovery in all conceivable circumstances, it does not follow that the liability limitation is therefore irrational and violative of due process. When appraised in light of the extremely remote possibility of an accident in which liability would exceed the statutory limit and Congress' commitment to "take whatever action is deemed necessary and appropriate to protect the public from the consequences of" a disaster of such proportions, the congressional decision to fix a $560 million ceiling is within permissible limits and not violative of due process. Pp. 84-87. (c) The District Court's finding that the Act tends to encourage irresponsibility in matters of safety and environmental protection cannot withstand careful scrutiny, since nothing in the liability-limitation provision undermines or alters the rigor and integrity of the process involved in the review of applications for a license to construct or operate a nuclear power plant, and since, in the event of a nuclear accident the utility itself would probably suffer the largest damage. P. 87. (d) The Act provides a reasonably just substitute for the common-law or state tort law remedies it replaces, and nothing more is required by the Due Process Clause. The congressional assurance of a $560 million fund for recovery, accompanied by the statutory commitment to "take whatever action is deemed necessary and appropriate to protect the public from the consequences of" a nuclear accident, is a fair and reasonable substitute for the uncertain recovery of damages of this magnitude from a utility or component manufacturer whose resources might well be exhausted at an early stage. And, at the minimum, the statutorily mandated waiver of defenses establishes at the threshold the right of injured parties to compensation without proof of fault and eliminates the burden of delay and uncertainty that would follow from the need to litigate the question of liability after an accident. Pp. 87-93. (e) There is no equal protection violation, since the general rationality of the Act's liability limitation, particularly with reference to the congressional purpose of encouraging private participation in the exploitation of nuclear energy, is ample justification for the difference in treatment between those injured in nuclear accidents and those whose injuries are derived from other causes. Pp. 93-94. 5. The Act does not withdraw the Tucker Act remedy, 28 U.S.C.A § 1491, and thus appellees' challenge under the Just Compensation Clause must fail. The further question of whether a taking claim could be established under the Fifth Amendment is a matter appropriately left for another day. P. 94 n. 39. 431 F.Supp. 203, reversed and remanded. Steve C. Griffith, Jr., Charlotte, N. C., for appellant in No. 77-262. Sol. Gen. Wade H. McCree, Jr., Washington, D. C., for appellants in No. 77-375. William B. Schultz, Washington, D. C., for appellees. Mr. Chief Justice BURGER delivered the opinion of the Court. 1 These appeals present the question of whether Congress may, consistent with the Constitution, impose a limitation on 2 [Amicus Curiae Information from pages 62-63 intentionally omitted] liability for nuclear accidents resulting from the operation of private nuclear power plants licensed by the Federal Government. 3 * A. 4 When Congress passed the Atomic Energy Act of 1946, it contemplated that the development of nuclear power would be a Government monopoly. See Act of Aug. 1, 1946, ch. 724, 60 Stat. 755. Within a decade, however, Congress concluded that the national interest would be best served if the Government encouraged the private sector to become involved in the development of atomic energy for peaceful purposes under a program of federal regulation and licensing. See H.R.Rep. No. 2181, 83d Cong., 2d Sess., 1-11 (1954). The Atomic Energy Act of 1954, Act of Aug. 30, 1954, ch. 1073, 68 Stat. 919, as amended, 42 U.S.C. §§ 2011-2281 (1970 ed. and Supp V), implemented this policy decision, providing for licensing of private construction, ownership, and operation of commercial nuclear power reactors for energy production under strict supervision by the Atomic Energy Commission (AEC).1 See Power Reactor Development Co. v. Electrical Workers, 367 U.S. 396, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961), rev'g and remanding, 108 U.S.App.D.C. 97, 280 F.2d 645 (1960). 5 Private industry responded to the Atomic Energy Act of 1954 with the development of an experimental power plant constructed under the auspices of a consortium of interested companies. It soon became apparent that profits from the private exploitation of atomic energy were uncertain and the accompanying risks substantial. See Green, Nuclear Power: Risk, Liability, and Indemnity, 71 Mich.L.Rev. 479-481 (1973) (Green). Although the AEC offered incentives to encourage investment, there remained in the path of the private nuclear power industry various problems—the risk of potentially vast liability in the event of a nuclear accident of a sizable magnitude being the major obstacle. Notwithstanding comprehensive testing and study, the uniqueness of this form of energy production made it impossible totally to rule out the risk of a major nuclear accident resulting in extensive damage. Private industry and the AEC were confident that such a disaster would not occur, but the very uniqueness of nuclear power meant that the possibility remained, and the potential liability dwarfed the ability of the industry and private insurance companies to absorb the risk. See Hearings before the Joint Committee on Atomic Energy on Government Indemnity for Private Licensees and AEC Contractors Against Reactor Hazards, 84th Cong., 2d Sess., 122-124 (1956). Thus, while repeatedly stressing that the risk of a major nuclear accident was extremely remote, spokesmen for the private sector informed Congress that they would be forced to withdraw from the field if their liability were not limited by appropriate legislation. Id., at 9, 109-110, 115, 120, 136-137, 148, 181, 195, and 240. 6 Congress responded in 1957 by passing the Price-Anderson Act, 71 Stat. 576, 42 U.S.C. § 2210 (1970 ed. and Supp. V). The Act had the dual purpose of "protect[ing] the public and . . . encourag[ing] the development of the atomic energy industry." 42 U.S.C. § 2012(i). In its original form, the Act limited the aggregate liability for a single nuclear incident2 to $500 million plus the amount of liability insurance available on the private market—some $60 million in 1957. The nuclear industry was required to purchase the maximum available amount of privately underwritten public liability insurance, and the Act provided that if damages from a nuclear disaster exceeded the amount of that private insurance coverage, the Federal Government would indemnify the licensee and other "persons indemnified"3 in an amount not to exceed $500 million. Thus, the actual ceiling on liability was the amount of private insurance coverage plus the Government's indemnification obligation which totaled $560 million. 7 Since its enactment, the Act has been twice amended, the first occasion being on the eve of its expiration in 1966.4 These amendments extended the basic liability-limitation provisions for another 10 years, and added a provision which had the effect of requiring those indemnified under the Act to waive all legal defenses in the event of a substantial nuclear accident.5 This provision was based on a congressional concern that state tort law dealing with liability for nuclear incidents was generally unsettled and that some way of insuring a common standard of responsibility for all jurisdictions—strict liability—was needed. A waiver of defenses was thought to be the preferable approach since it entailed less interference with state tort law than would the enactment of a federal statute prescribing strict liability.6 See S.Rep. No. 1605, 89th Cong., 2d Sess., 6-10 (1966); U.S.Code Cong. & Admin.Code 1966, p. 3201. 8 In 1975, Congress again extended the Act's coverage until 1987, and continued the $560 million limitation on liability. However a new provision was added requiring, in the event of a nuclear incident, each of the 60 or more reactor owners to contribute between $2 and $5 million toward the cost of compensating victims.7 42 U.S.C. § 2210(b) (1970 ed., Supp. V). Since the liability ceiling remained at the same level, the effect of the "deferred premium" provision was to reduce the Federal Government's contribution to the liability pool.8 In its amendments to the Act in 1975, Congress also explicitly provided that "in the event of a nuclear incident involving damages in excess of [the] amount of aggregate liability, the Congress will thoroughly review the particular incident and will take whatever action is deemed necessary and appropriate to protect the public from the consequences of a disaster of such magnitude . . . ." 42 U.S.C. § 2210(e) (1970 ed., Supp. V). 9 Under the Price-Anderson Act as it presently stands, liability in the event of a nuclear incident causing damages of $560 million or more would be spread as follows: $315 million would be paid from contributions by the licensees of the 63 private operating nuclear power plants; $140 million would come from private insurance (the maximum now available); the remainder of $105 million would be borne by the Federal Government.9 B 10 Appellant in No. 77-262, Duke Power Co., is an investor-owned public utility which is constructing one nuclear power plant in North Carolina and one in South Carolina. Duke Power, along with the NRC, was sued by appellees, two organizations—Carolina Environmental Study Group and the Catawba Central Labor Union—and 40 individuals who live within close proximity to the planned facilities. The action was commenced in 1973, and sought, among other relief, a declaration that the Price-Anderson Act is unconstitutional.10 11 After the parties had engaged in extensive discovery, the District Court held an evidentiary hearing on the questions of whether the issues were ripe for adjudication and whether appellees had standing to challenge the constitutionality of the Act. That court determined that appellees had standi g and that their claim could properly be adjudicated. The District Court went on to hold that the Price-Anderson Act was unconstitutional in two respects: (a) it violated the Due Process Clause of the Fifth Amendment because it allowed injuries to occur without assuring adequate compensation to the victims; (b) the Act offended the equal protection component of the Fifth Amendment by forcing the victims of nuclear incidents to bear the burden of injury, whereas society as a whole benefits from the existence and development of nuclear power. 12 We noted probable jurisdiction11 in these appeals, 434 U.S. 937, 98 S.Ct. 426, 54 L.Ed.2d 297 (1977), and we now reverse. II 13 As a threshold matter, we must address the question of whether the District Court had subject-matter jurisdiction over appellees' claims, despite the fact that none of the parties raised this issue and the District Court did not consider it. See Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 740, 96 S.Ct. 1202, 1204, 47 L.Ed.2d 435 (1976). Appellees' complaint alleges jurisdiction under 28 U.S.C. § 1337 (1976 ed.), which provides for original jurisdiction in the district courts over "any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies." Our reading of the pleadings,12 however, indicates that appellees' claims do not "arise under" the Price-Anderson Act as that statutory language has been interpreted in prior decisions. See Peyton v. Railway Express Agency, 316 U.S. 350, 353, 62 S.Ct. 1171, 1172, 86 L.Ed. 1525 (1942). 14 Specifically, as we read the complaint, appellees are making two basic challenges to the Act—both of which find their moorings in the Fifth Amendment. First, appellees contend that the Due Process Clause protects them against arbitrary governmental action adversely affecting their property rights and that the Price-Anderson Act—which both creates the source of the underlying injury and limits the recovery therefor—constitutes such arbitrary action. And second, they are contending that in the event of a nuclear accident their property would be "taken" without any assurance of just compensation. The Price-Anderson Act is the instrument of the taking since on this record, without it, there would be no power plants and no possibility of an accident. Implicit in the complaint is also the assumption that there exists a cause of action directly under the Constitution to vindicate appellees' federal rights through a suit against the NRC, the executive agency charged with enforcement and administration of the allegedly unconstitutional statute.13 Appellees' right to relief thus depends not on the interpretation or construction of the Price-Anderson Act itself, but instead "upon the construction or application of the Constitution," Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 199, 41 S.Ct. 243, 245, 65 L.Ed. 577 (1921). Hence, if there exists jurisdiction to hear appellees' claims at all, it must be derived from 28 U.S.C. § 1331(a) (1976 ed.), the general federal-question statute, rather than from § 1337—the jurisdictional base pleaded.14 15 For purposes of determining whether jurisdiction exists under § 1331(a) to resolve appellees' claims, it is not necessary to decide whether appellees' alleged cause of action against the NRC based directly on the Constitution is in fact a cause of action "on which [appellees] could actually recover." Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). Instead, the test is whether " 'the cause of action alleged is so patently without merit as to justify . . . the court's dismissal for want of jurisdiction.' " Hagans v. Lavine, 415 U.S. 528, 542-543, 94 S.Ct. 1372, 1382, 39 L.Ed.2d 577 (1974) quoting Bell v. Hood, supra, at 683, 66 S.Ct., at 776. (Emphasis added.) See also Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 778, 39 L.Ed.2d 73 (1974) (test is whether right claimed is "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy"). In light of prior decisions, for example, Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and Hagans v. Lavine, supra, as well as the general admonition that "where federally protected rights have been invaded . . . courts will be alert to adjust their remedies so as to grant the necessary relief," Bell v. Hood, supra, 327 U.S., at 684, 66 S.Ct., at 777, we conclude that appellees' allegations are sufficient to sustain jurisdiction under § 1331(a).15 16 The further question of whether appellees' cause of action under the Constitution is one generally to be recognized need not be decided here. The question does not directly implicate our jurisdiction, see Bell v. Hood, supra, was not raised in the court below, was not briefed, and was not addressed during oral argument. As we noted last Term in a similar context, questions of this sort should not be resolved on such an inadequate record; leaving them unresolved is no bar to full consideration of the merits. See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 278-279, 97 S.Ct. 568, 571-572, 50 L.Ed.2d 471 (1977). It is enough for present purposes that the claimed cause of action to vindicate appellees' constitutional rights is sufficiently substantial and colorable to sustain jurisdiction under § 1331(a).16 III 17 The District Judge held four days of hearings on the questions of standing and ripeness; his factual findings form the basis for our analysis of these issues. A. 18 The essence of the standing inquiry is whether the parties seeking to invoke the court's jurisdiction have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). As refined by subsequent reformulation, this requirement of a "personal stake" has come to be understood to require not only a "distinct and palpable injury," to the plaintiff, Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), but also a "fairly traceable" causal connection between the claimed injury and the challenged conduct. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977). See also Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1925-1926, 48 L.Ed.2d 450 (1976); Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). Application of these constitutional standards to the factual findings of the District Court persuades us that the Art. III requisites for standing are satisfied by appellees. 19 We turn first to consider the kinds of injuries the District Court found the appellees suffered. It discerned two categories of effects which resulted from the operation of nuclear power plants in potentially dangerous proximity to appellees' living and working environment. The immediate effects included: (a) the production of small quantities of non-natural radiation which would invade the air and water; (b) a "sharp increase" in the temperature of two lakes presently used for recreational purposes resulting from the use of the lake waters to produce steam and to cool the reactor; (c) interference with the normal use of the waters of the Catawba River; (d) threatened reduction in prop rty values of land neighboring the power plants; (e) "objectively reasonable" present fear and apprehension regarding the "effect of the increased radioactivity in air, land and water upon [appellees] and their property, and the genetic effects upon their descendants"; and (f) the continual threat of "an accident resulting in uncontrolled release of large or even small quantities of radioactive material" with no assurance of adequate compensation for the resultant damage. 431 F.Supp. 203, 209. Into a second category of potential effects were placed the damages "which may result from a CORE MELT OR OTHER MAJOR ACCIDENT IN THE OPERATION OF A REACTOR . . . ." Id., at 209.17 20 For purposes of the present inquiry, we need not determine whether all the putative injuries identified by the District Court, particularly those based on the possibility of a nuclear accident and the present apprehension generated by this future uncertainty, are sufficiently concrete to satisfy constitutional requirements. Compare O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), with United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). See also Conservation Society of Southern Vermont v. AEC, Civ. Action No. 19-72 (DC Apr. 17, 1975). It is enough that several of the "immediate" adverse effects were found to harm appellees. Certainly the environmental and aesthetic consequences of the thermal pollution of the two lakes in the vicinity of the disputed power plants is the type of harmful effect which has been deemed adequate in prior cases to satisfy the "injury in fact" standard. See United States v. SCRAP, supra. Cf. Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636 (1972).18 And the emission of non-natural radiation into appellees' environment would also seem a direct and present injury, given our generalized concern about exposure to radiation and the apprehension flowing from the uncertainty about the health and genetic consequences of even small emissions like those concededly emitted by nuclear power plants.19 21 The more difficult step in the standing inquiry is establishing that these injuries "fairly can be traced to the challenged action of the defendant," Simon v. Eastern Ky. Welfare Rights Org., supra, 426 U.S., at 41, 96 S.Ct., at 1926, or put otherwise, that the exercise of the Court's remedial powers would redress the claimed injuries. 426 U.S., at 43, 96 S.Ct., at 1926. The District Court discerned a "but for" causal connection between the Price-Anderson Act, which appellees challenged as unconstitutional, "and the construction of the nuclear plants which the [appellees] view as a threat to them." 431 F.Supp., at 219. Particularizing that causal link to the facts of the instant case, the District Court concluded that "there is a substantial likelihood that Duke would not be able to complete the construction and maintain the operation of the McGuire and Catawba Nuclear Plants but for the protection provided by the Price-Anderson Act." Id., at 220. 22 These findings, which, if accepted, would likely satisfy the second prong of the constitutional test for standing as elaborated in Simon,20 are challenged on two grounds. First, it is argued that the evidence presented at the hearing, contrary to the conclusion reached by the District Court, indicated that the McGuire and Catawba nuclear plants would be completed and operated without the Price-Anderson Act's limitation on liability. And second, it is contended that the Price-Anderson Act is not, in some essential sense, the "but for" cause of the disputed nuclear power plants and resultant adverse effects since if the Act had not been passed Congress may well have chosen to pursue the nuclear program as a Government monopoly as it had from 1946 until 1954. We reject both of these arguments. 23 The District Court's finding of a "substantial likelihood" that the McGuire and Catawba nuclear plants would be neither completed nor operated absent the Price-Anderson Act rested in major part on the testimony of corporate officials before the Joint Committee on Atomic Energy (JCAE) in 1956-1957 when the Price-Anderson Act was first considered and again in 1975 when a second renewal was discussed. During the 1956-1957 hearings, industry spokesmen for the utilities and the producers of the various component parts of the power plants expressed a categorical unwillingness to participate in the development of nuclear power absent guarantees of a limitation on their liability. 431 F.Supp., at 215. See also Green, 486, 490-491.21 By 1975, the tenor of the testimony had changed only slightly. While large utilities and producers were somewhat more equivocal about whether a failure to renew Price-Anderson would entail their leaving the industry, the smaller producers of component parts and architects and engineers all of whom are essential to the building of the reactors and generating plants—considered renewal of the Act as the critical variable in determining their continued involvement with nuclear power. 431 F.Supp., at 216-217. Duke Power itself, in its letter to the Committee urging extension of the Act, cited recent experiences with suppliers and contractors who were requiring the inclusion of cancellation clauses in their contracts to take effect if the liability-limitation provisions were eliminated. Id., at 217. And the Report of the JCAE, in discussing the need for renewal of the Act, stated: 24 "Nuclear power plants now in the planning and design phases would not receive construction permits until about 1977-1978. Thus there is uncertainty as to whether these plants would receive protection in the form of Government indemnity. Reactor manufacturers and architect-engineers are already requiring escape clauses in their contracts to permit cancellation in the event some form of protection from unlimited potential liability is not provided. Action is required soon to prevent disruption in utility plans for nuclear power." H.R.Rep.No.94-648, p. 7 (1975). 25 Nor was the testimony at the hearing in this case, evaluation of which is the primary responsibility of the trial judge, at odds with the impression drawn from the legislative history. The testimony of Executive Vice President Lee of Duke Power simply echoed the views presented by Duke and others to Congress in 1975, that is, although some of the utilities themselves might be confident enough with respect to safety factors to proceed with nuclear power absent a liability limitation, the suppliers of critical parts and the utility shareholders could reasonably be expected to take a more cautious view.22 Appellees presented expert testimony essentially to the same effect. Considering the documentary evidence and the testimony in the record, we cannot say we are left with "the definite and firm conviction that" the finding by the trial court of a substantial likelihood that the McGuire and Catawba nuclear power plants would be neither completed nor operated absent the Price-Anderson Act is clearly erroneous; and, hence, we are bound to accept it. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 526, 541 (1948). 26 The second attack on the District Court's finding of a causal link warrants only brief attention. Essentially the argument is, as we understand it, that Price-Anderson is not a "but for" cause of the injuries appellees claim, since if Price-Anderson had not been passed, the Government would have undertaken development of nuclear power on its own and the same injuries would likely have accrued to appellees from such Government-operated plants as from privately operated ones. Whatever the ultimate accuracy of this speculation, it is not responsive to the simple proposition that private power companies now do in fact operate the nuclear-powered generating plants injuring appellees, and that their participation would not have occurred but for the enactment and implementation of the Price-Anderson Act. Nothing in our prior cases requires a party seeking to invoke federal jurisdiction to negate the kind of speculative and hypothetical possibilities suggested in order to demonstrate the likely effectiveness of judicial relief. B 27 It is further contended that in addition to proof of injury and of a causal link between such injury and the challenged conduct, appellees must demonstrate a connection between the injuries they claim and the constitutional rights being asserted. This nexus requirement is said to find its origin in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), where the general question of taxpayer standing was considered: 28 "The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. . . . Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged." Id., at 102, 88 S.Ct., at 1954. 29 See also United States v. Richardson, 418 U.S. 166, 174-175, 94 S.Ct. 2940, 2945-2946, 41 L.Ed.2d 678 (1974). Since the environmental and health injuries claimed by appellees are not directly related to the constitutional attack on the Price-Ande son Act, such injuries, the argument continues, cannot supply a predicate for standing.23 We decline to accept this argument. 30 The major difficulty with the argument is that it implicitly assumes that the nexus requirement formulated in the context of taxpayer suits has general applicability in suits of all other types brought in the federal courts. No cases have been cited outside the context of taxpayer suits where we have demanded this type of subject-matter nexus between the right asserted and the injury alleged, and we are aware of none.24 Instead, in Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 225, 94 S.Ct. 2925, 2934, 41 L.Ed.2d 706 n. 15 (1974), we explicitly rejected such a broad compass for the Flast nexus requirement: 31 "Looking 'to the substantive issues' which Flast stated to be both 'appropriate and necessary' in relation to taxpayer standing was for the express purpose of determining 'whether there is a logical nexus between the [taxpayer] status asserted and the claim sought to be adjudicated.' 392 U.S. at 102 [88 S.Ct. 1942]. This step is not appropriate on a claim of citizen standing since the Flast nexus test is not applicable where the taxing and spending power is not challenged. . . ." 32 We continue to be of the same view and cannot accept the contention that, outside the context of taxpayers' suits, a litigant must demonstrate something more than injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury to satisfy the "case or controversy" requirement of Art. III.25 33 Our prior cases have, however, acknowledged "other limits on the class of persons who may invoke the courts' decisional and remedial powers," Warth v. Seldin, 422 U.S., at 499, 95 S.Ct., at 2205, which derive from general prudential concerns "about the proper—and properly limited—role of the courts in a democratic society." Id., at 498, 95 S.Ct., at 2205. See also Schlesinger v. Reservists Comm. to Stop the War, supra, 418 U.S., at 221-227, 94 S.Ct., at 2932-2935. Thus, we have declined to grant standing where the harm asserted amounts only to a generalized grievance shared by a large number of citizens in a substantially equal measure. See United States v. Richardson, supra. We have also narrowly limited the circumstances in which one party will be give standing to assert the legal rights of another. "[E]ven when the plaintiff has alleged injury sufficient to meet the 'case or controversy' requirement, this Court has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, supra, at 499, 95 S.Ct., at 2205. See also United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). This limitation on third-party standing arguably suggests a connection between the claimed injury and the right asserted bearing some resemblance to the nexus requirement now urged upon us. 34 There are good and sufficient reasons for this prudential limitation on standing when rights of third parties are implicated the avoidance of the adjudication of rights which those not before the Court may not wish to assert, and the assurance that the most effective advocate of the rights at issue is present to champion them. See Singleton v. Wulff, 428 U.S. 106, 113-114, 96 S.Ct. 2868, 2873-2874, 49 L.Ed.2d 826 (1976). We do not, however, find these reasons a satisfactory predicate for applying this limitation or a similar nexus requirement to all cases as a matter of course. Where a party champions his own rights, and where the injury alleged is a concrete and particularized one which will be prevented or redressed by the relief requested, the basic practical and prudential concerns underlying the standing doctrine are generally satisfied when the constitutional requisites are met. See, e. g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). 35 We conclude that appellees have standing to challenge the constitutionality of the Price-Anderson Act.26 C 36 The question of the ripeness of the constitutional challenges raised by appellees need not long detain us. To the extent that "issues of ripeness involve, at least in part, the existence of a live 'Case or Controversy,' "Regional Rail Reorganization Act Cases, 419 U.S., at 138, 95 S.Ct., at 356, our conclusion that appellees will sustain immediate injury from the operation of the disputed power plants and that such injury would be redressed by the relief requested would appear to satisfy this requirement. 37 The prudential considerations embodied in the ripeness doctrine also argue strongly for a prompt resolution of the claims presented. Although it is true that no nuclear accident has yet occurred and that such an occurrence would eliminate much of the existing scientific uncertainty surrounding this subject, it would not, in our view, significantly advance our ability to deal with the legal issues presented nor aid us in their resolution. However, delayed resolution of these issues would foreclose any relief from the present injury suffered by appellees—relief that would b forthcoming if they were to prevail in their various challenges to the Act. Similarly, delayed resolution would frustrate one of the key purposes of the Price-Anderson Act—the elimination of doubts concerning the scope of private liability in the event of major nuclear accident. In short, all parties would be adversely affected by a decision to defer definitive resolution of the constitutional validity vel non of the Price-Anderson Act. Since we are persuaded that "we will be in no better position later than we are now" to decide this question, id., at 143-145, 95 S.Ct., at 359, we hold that it is presently ripe for adjudication. IV 38 The District Court held that the Price-Anderson Act contravened the Due Process Clause because "[t]he amount of recovery is not rationally related to the potential losses"; because "[t]he Act tends to encourage irresponsibility in matters of safety and environmental protection . . ."; and finally because "[t]here is no quid pro quo " for the liability limitations. 431 F.Supp., at 222-223. An equal protection violation was also found because the Act "places the cost of [nuclear power] on an arbitrarily chosen segment of society, those injured by nuclear catastrophe." Id., at 225. Application of the relevant constitutional principles forces the conclusion that these holdings of the District Court cannot be sustained. A. 39 Our due process analysis properly begins with a discussion of the appropriate standard of review. Appellants, portraying the liability-limitation provision as a legislative balancing of economic interests, urge that the Price-Anderson Act be accorded the traditional presumption of constitutionality generally accorded economic regulations and that it be upheld absent proof of arbitrariness or irrationality on the part of Congress. See Ferguson v. Skrupa, 372 U.S. 726, 731-732, 83 S.Ct. 1028, 1031-1032, 10 L.Ed.2d 93 (1963); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752 (1976). Appellees, however, urge a more elevated standard of review on the ground that the interests jeopardized by the Price-Anderson Act "are far more important than those in the economic due process and business-oriented cases" where the traditional rationality standard has been invoked. Brief for Appellees 36. An intermediate standard like that applied in cases such as Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (equal protection challenge to statute requiring that males be older than females in order to purchase beer) or United States Trust Co. of New York v. New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977) (Contract Clause challenge to repeal of statutory covenant providing security for bondholders) is thus recommended for our use here. 40 As we read the Act and its legislative history, it is clear that Congress' purpose was to remove the economic impediments in order to stimulate the private development of electric energy by nuclear power while simultaneously providing the public compensation in the event of a catastrophic nuclear incident. See, e. g., S.Rep. No. 296, 85th Cong., 1st Sess., 15 (1957); U.S.Code, Cong. & Admin.Code 1957, p. 1803. The liability-limitation provision thus emerges as a classic example of an economic regulation—a legislative effort to structure and accommodate "the burdens and benefits of economic life." Usery v. Turner Elkhorn Mining Co., supra, 428 U.S., at 15, 96 S.Ct., at 2892. "It is by now well established that [such] legislative Acts . . . come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way." Ibid. That the accommodation struck may have profound and far-reaching consequences, contrary to appellees' suggestion, provides all the more reason for this Court to defer to the congressional judgment unless it is demonstrably arbitrary or irrational.27 B 41 When examined in light of this standard of review, the Price-Anderson Act, in our view, passes constitutional muster. The record before us fully supports the need for the imposition of a statutory limit on liability to encourage private industry participation and hence bears a rational relationship to Congress' concern for stimulating the involvement of private enterprise in the production of electric energy through the use of atomic power; nor do we understand appellees or the District Court to be of a different view. Rather their challenge is to the alleged arbitrariness of the particular figure of $560 million, which is the statutory ceiling on liability. The District Court aptly summarized its position: 42 "The amount of recovery is not rationally related to the potential losses. Abundant evidence in the record shows that although major catastrophe in any particular place is not certain and may not be extremely likely, nevertheless, in the territory where these plants are located, damage to life and property for this and future generations could well be many, many times the limit which the law places on liability." 431 F.Supp., at 222. 43 Assuming, arguendo, that the $560 million fund would not insure full recovery in all conceivable circumstances28—and the hard truth is that no one can ever know—it does not by any means follow that the liability limitation is therefore irrational and violative of due process. The legislative history clearly indicates that the $560 million figure was not arrived at on the supposition that it alone would necessarily be sufficient to guarantee full compensation in the event of a nuclear incident. Instead, it was conceived of as a "starting point" or a working hypothesis.29 The reasonableness of the statute's assumed ceiling on liability was predicated on two corollary considerations—expert appraisals of the exceedingly small risk of a nuclear incident involving claims in excess of $560 million, and the recognition that in the event of such an incident, Congress would likely enact extraordinary relief provisions to provide additional relief, in accord with prior practice. 44 "[T]his limitation does not, as a practical matter, detract from the public protection afforded by this legislation. In the first place, the likelihood of an accident occurring which would result in claims exceeding the sum of the financial protection required and the governmental indemnity is exceedingly remote, albeit theoretically possible. Perhaps more important, in the event of a national disaster of this magnitude, it is obvious that Congress would have to review the problem and take appropriate action. The history of other natural or man-made disasters, such as the Texas City incident, bears this out. The limitation of liability serves primarily as a device for facilitating further congressional review of such a situation, rather than as an ultimate bar to further relief of the public." H.R.Rep. No. 883, 89th Cong., 1st Sess. 6-7 (1965). 45 See also S.Rep. No. 296, supra, at 21; H.R.Rep. No. 94-648, pp. 12, 15 (1975). 46 Given our conclusion that, in general, limiting liability is an acceptable method for Congress to utilize in encouraging the private development of electric energy by atomic power, candor requires acknowledgment that whatever ceiling figure is selected will, of necessity, be arbitrary in the sense that any choice of a figure based on imponderables like those at issue here can always be so characterized. This is not, however, the kind of arbitrariness which flaws otherwise constitutional action. When appraised in terms of both the extremely remote possibility of an accident where liability would exceed the limitation30 and Congress' now statutory commitment to "take whatever action is deemed necessary and appropriate to protect the public from the consequences of" any such disaster, 42 U.S.C § 2210(e) (1970 ed., Supp. V),31 we hold the congressional decision to fix a $560 million ceiling at this stage in the private development and production of electric energy by nuclear power, to be within permissible limits and not violate of due process. 47 This District Court's further conclusion that the Price-Anderson Act "tends to encourage irresponsibility . . . on the part of builders and owners" of the nuclear power plants, 431 F.Supp., at 222, simply cannot withstand careful scrutin . We recently outlined the multitude of detailed steps involved in the review of any application for a license to construct or to operate a nuclear power plant, Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 526-527, and n.5, 98 S.Ct. 1197, 1203-1204, and n.5, 55 L.Ed.2d 460 (1978); nothing in the liability limitation provision undermines or alters in any respect the rigor and integrity of that process. Moreover, in the event of a nuclear accident the utility itself would suffer perhaps the largest damages. While obviously not to be compared with the loss of human life and injury to health, the risk of financial loss and possible bankruptcy to the utility is in itself no small incentive to avoid the kind of irresponsible and cavalier conduct implicitly attributed to licensees by the District Court. 48 The remaining due process objection to the liability-limitation provision is that it fails to provide those injured by a nuclear accident with a satisfactory quid pro quo for the common-law rights of recovery which the Act abrogates. Initially, it is not at all clear that the Due Process Clause in fact requires that a legislatively enacted compensation scheme either duplicate the recovery at common law or provide a reasonable substitute remedy.32 However, we need not resolve this question here since the Price-Anderson Act does, in our view, provide a reasonably just substitute for the common-law or state tort law remedies it replaces. Cf. New York Central R. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667 (1917); Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932).33 49 The legislative history of the liability-limitation provisions and the accompanying compensation mechanism reflects Congress' determination that reliance on state tort law remedies and state-court procedures was an unsatisfactory approach to assuring public compensation for nuclear accidents, while at the same time providing the necessary incentives for private development of nuclear-produced energy. The remarks of Chairman Anders of the NRC before the Joint Committee on Atomic Energy during the 1975 hearings on the need for renewal of the Price-Anderson Act are illustrative of this concern and of the expectation that the Act would provide a more efficient and certain vehicle for assuring compensation in the unlikely event of a nuclear incident: 50 "The primary defect of this alternative [nonrenewal of the Act], however, is its failure to afford the public either a secure source of funds or a firm basis for legal liability with respect to new plants. While in theory no legal limit would be placed on liability, as a practical matter the public would be less assured of obtaining compensation than under Price-Anderson. Establishing liability would depend in each case on state tort law and procedures, and these might or might not provide for no-fault liability, let alone the multiple other protections now embodied in Price-Anderson. The present assurance of prompt and equitable compensation under a pre-structured and nationally applicable protective system would give way to uncertainties, variations and potentially lengthy delays in recovery. It should be emphasized, moreover, that it is collecting a judgment, not filing a lawsuit, that counts. Even if defenses are waived under state law, a defendant with theoretically "unlimited" liability may be unable to pay a judgment once obtained. When the defendant's assets are exhausted by earlier judgments, subsequent claimants would be left with uncollectable awards. The prospect of inequitable distribution would produce a race to the courthouse door in contrast to the present system of assured orderly and equitable compensation." Hearings on H.R. 8631 before Joint Committee on Atomic Energy, 94th Cong., 1st Sess., 69 (1975). 51 Appellees, like the District Court, differ with this appraisal on several grounds. They argue, inter alia, that recovery under the Act would not be greater than without it, that the waiver of defenses required by the Act, 42 U.S.C. § 2210(n) (1970 ed., Supp. V), is an idle gesture since those involved in the development of nuclear energy would likely be held strictly liable under common-law principles;34 that the claim-administration procedure under the Act delays rather than expedites individual recovery; and finally that recovery of even limited compensation is uncertain since the liability ceiling does not vary with the number of persons injured or amount of property damaged. The extension of short state statutes of limitations and the provision of omnibus35 coverage do not save the Act, in their view, since such provisions could equally well be included in a fairer plan which would assure greater compensation. 52 We disagree. We view the congressional assurance of a $560 million fund for recovery, accompanied by an express statutory commitment, to "take whatever action is deemed necessary and appropriate to protect the public from the consequences of" a nuclear ccident, 42 U.S.C. § 2210(e) (1970 ed., Supp. V), to be a fair and reasonable substitute for the uncertain recovery of damages of this magnitude from a utility or component manufacturer, whose resources might well be exhausted at an early stage. The record in this case raises serious questions about the ability of a utility or component manufacturer to satisfy a judgment approaching $560 million—the amount guaranteed under the Price-Anderson Act.36 Nor are we persuaded that the mandatory waiver of defenses required by the Act is of no benefit to potential claimants. Since there has never been, to our knowledge, a case arising out of a nuclear incident like those covered by the Price-Anderson Act, any discussion of the standard of liability that state courts will apply is necessarily speculative. At the minimum, the statutorily mandated waiver of defenses establishes at the threshold the right of injured parties to compensation without proof of fault and eliminates the burden of delay and uncertainty which would follow from the need to litigate the question of liability after an accident. Further, even if strict liability were routinely applied, the common-law doctrine is subject to exceptions for acts of God or of third parties37—two of the very factors which appellees emphasized in the District Court in the course of arguing that the risks of a nuclear accident are greater than generally admitted. All of these considerations belie the suggestion that the Act leaves the potential victims of a nuclear disaster in a more disadvantageous position than they would be in if left to their common-law remedies—not known in modern times for either their speed or economy. 53 Appellees' remaining objections can be briefly treated. The claim-administration procedures under the Act provide that in the event of an accident with potential liability exceeding the $560 million ceiling, no more than 15% of the limit can be distributed pending court approval of a plan of distribution taking into account the need to assure compensation for "possible latent injury claims which may not be discovered until a later time." 42 U.S.C. § 2210(o )(3) (1970 ed., supp. v). althoUgh somE DELAY MIGht follow from compliance with this statutory procedure, we doubt that it would approach that resulting from routine litigation of the large number of claims caused by a catastrophic accident.38 Moreover, the statutory scheme insures the equitable distribution of benefits to all who suffer injury—both immediate and latent; under the common-law route, the proverbial race to the courthouse would instead determine who had "first crack" at the diminishing resources of the tortfeasor, and fairness could well be sacrificed in the process. The remaining contention that recovery is uncertain because of the aggregate rather than individualized nature of the liability ceiling is but a thinly disguised version of the contention that the $560 million figure is inadequate, which we have already rejected. 54 In the course of adjudicating a similar challenge to the Workmen's Compensation Act in New York Central R. Co. v. White, 243 U.S., at 201, 37 S.Ct., at 252, the Court observed that the Due Process Clause of the Fourteenth Amendment was not violated simply because an injured party would not be able to recover as much under the Act as before its enactment. "[H]e is entitled to moderate compensation in all cases of injury, and has a certain and speedy remedy without the difficulty and expense of establishing negligence or proving the amount of the damages." The logic of New York Central would seem to apply with renewed force in the context of this challenge to the Price-Anderson Act. The Price-Anderson Act not only provides a reasonable, prompt, and equitable mechanism for compensating victims of a catastrophic nuclear incident, it also guarantees a level of net compensation generally exceeding that recoverable in private litigation. Moreover, the Act contains an explicit congressional commitment to take further action to aid victims of a nuclear accident in the event that the $560 million ceiling on liability is exceeded. This panoply of remedies and guarantees is at the least a reasonably just substitute for the common-law rights replaced by the Price-Anderson Act. Nothing more is required by the Due Process Clause. 55 Although the District Court also found the Price-Anderson Act to contravene the "equal protection provision that is included within the Due Process Clause of the Fifth Amendment," 431 F.Supp., at 224-225, appellees have not relied on this ground since the equal protection arguments largely track and duplicate those made in support of the due process claim. In any event, we conclude that there is no equal protection violation. The general rationality of the Price-Anderson Act liability limitations particularly with reference to the important congressional purpose of encouraging private participation in the exploitation of nuclear energy—is ample justification for the difference in treatment between those injured in nuclear accidents and those whose injuries are derived from other causes. Speculation regarding other arrangements that might be used to spread the risk of liability in ways different from the Price-Anderson Act is, of course, not pertinent to the equal protection analysis. See Mourning v. Family Publications Service, Inc., 411 U.S. 356, 378, 93 S.Ct. 1652, 1665, 36 L.Ed.2d 318 (1973).39 56 Accordingly, the decision of the District Court is reversed, and the cases are remanded for proceedings consistent with this opinion. 57 Reversed and remanded. 58 Mr. Justice STEWART, concurring in the result. 59 With some difficulty, I can accept the proposition that federal subject-matter jurisdiction under 28 U.S.C. § 1331 (1976 ed.) exists here, at least with respect to the suit against the Nuclear Regulatory Commission, the agency responsible for the administration of the Price-Anderson Act. The claim under federal law is to be found in the allegation that the Act, if enforced, will deprive the appellees of certain property rights, in violation of the Due Process Clause of the Fifth Amendment. One of those property rights, and perhaps the sole cognizable one, is a state-created right to recover full compensation for tort injuries. The Act impinges on that right by limiting recovery in major accidents. 60 But there never has been such an accident, and it is sheer speculation that one will ever occur. For this reason I think there is no present justiciable controversy, and that the appellees were without standing to initiate this litigation. 61 On the issue of standing, the Court relies on the "present" injuries of increased water temperatures and low-level radiation emissions. Even assuming that but for the Act the plant would not exist and therefore neither would its effects on the environment, I cannot believe that it follows that the appellees have standing to attack the constitutionality of the Act. Apart from a "but for" connection in the loosest sense of that concept, there is no relationship at all between the injury alleged for standing purposes and the injury alleged for federal subject-matter jurisdiction. 62 Surely a plaintiff does not have standing simply because his challenge, if successful, will remove the injury relied on for standing purposes only because it will put the defendant out of existence. Surely there must be some direct relationship between the plaintiff's federal claim and the injury relied on for standing. Cf. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450; United States v. SCRAP, 412 U.S. 669, 687-690, 93 S.Ct. 2405, 2415-2417, 37 L.Ed.2d 254; Linda R. S. v. Richard D., 410 U.S. 614, 617-618, 93 S.Ct. 1146, 1148-1149, 35 L.Ed.2d 536. An interest in the local water temperature does not, in short, give these appellees standing to bring a suit under 28 U.S.C. § 1331 (1976 ed.) to challenge the constitutionality of a law limiting liability in an unrelated and as-yet-to-occur major nuclear accident. 63 For these reasons, I would remand these cases to the District Court with instructions to dismiss the complaint. 64 Mr. Justice REHNQUIST, with whom Mr. Justice STEVENS joins, concurring in the judgment. 65 I can understand the Court's willingness to reach the merits of this case and thereby remove the doubt which has been cast over this important federal statute. In so doing, however, it ignores established limitations on district court jurisdiction as carefully defined in our statutes and cases. Because I believe the preservation of these limitations is in the long run more important to this Court's jurisprudence than the resolution of any particular case or controversy, however important, I too would reverse the judgment of the District Court, but would do so with instructions to dismiss the complaint for want of jurisdiction. Cf. Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 249-250, 71 S.Ct. 692, 694-695, 95 L.Ed. 912 (1951). 66 Giving the conclusory allegations of appellees' complaint the most liberal possible reading, they purport to establish only two grounds for the declaratory relief requested. First, they contend that the Price-Anderson Act deprives them of their property without due process of law in that it irrationally limits the tort recovery otherwise available in the North Carolina courts.1 Second, they contend that the Act works an unconstitutional taking of their property for public use without just compensation. They purport to base District Court jurisdiction upon 28 U.S.C. § 1337 (1976 ed.) which covers "any civil action or proceeding arising under any Act of Congress regulating commerce or protec ing trade and commerce against restraints and monopolies." 67 * It is apparent that appellees' first asserted basis for relief does not state a claim "arising under" the Price-Anderson Act. Their complaint alleges that the operation of the two power plants will cause immediate injury to property within their vicinity. App. 32, ¶ 21. The District Court explicitly found that these injuries "give rise to an immediate right of action for redress. Under the law of North Carolina a right of action arises as soon as a wrongful act has created 'any injury, however slight,' to the plaintiff." 431 F.Supp. 203, 221 (W.D.N.C.1977) (citations omitted). This right of action provided by state, not federal, law is the property of which the appellees contend the Act deprives them without due process. Thus, the constitutionality of the Act becomes relevant only if the appellant Duke Power Co. were to invoke the Act as a defense to appellees' suit for recovery under their North Carolina right of action. 68 It has long been established that the mere anticipation of a possible federal defense to a state cause of action is not sufficient to invoke the federal-question jurisdiction of the district courts. In Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908), the plaintiffs sought to compel the specific performance of a contract by which the railroad had granted them free passes for life. Although their contract was not predicated upon federal law, the plaintiffs contended that federal-question jurisdiction was established by the presence of an Act of Congress forbidding railroads to issue free passes. This Court held that the District Court did not have jurisdiction to consider whether the Act was inapplicable or unconstitutional: 69 "It is the settled interpretation of these words ['arising under'], as used in this statute, conferring jurisdiction, that a suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action, and asserts that the defense is invalidated by some provision of the Constitution of the United States. Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiff's original cause of action, arises under the Constitution." Id., at 152, 29 S.Ct., at 43. 70 Just as the underlying claim in Mottley arose under Kentucky contract law, the underlying claim in this case arises under North Carolina tort law. This Court has construed the "arising under" language of 28 U.S.C. § 1337 (1976 ed.) just as it has the similar language of 28 U.S.C. § 1331 (1976 ed.). Peyton v. Railway Express Agency, Inc., 316 U.S. 350, 353, 62 S.Ct. 1171, 1172, 86 L.Ed. 1525 (1942). 71 Nor does the fact that appellees seek only declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 2201 (1976 ed.), support a different result. This Court has held that the well-pleaded complaint rule applied in Mottley is fully applicable in cases seeking only declaratory relief, because the Declaratory Judgment Act merely expands the remedies available in the district courts without expanding their jurisdiction. "It would turn into the federal courts a vast current of litigation indubitably arising under State law, in the sense that the right to be vindicated was State-created, if a suit for a declaration of rights could be brought into the federal courts merely because an anticipated defense derived from fe eral law." Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 673, 70 S.Ct. 876, 880, 94 L.Ed. 1194 (1950). See also Phillips Petroleum Co. v. Texaco Inc., 415 U.S. 125, 94 S.Ct. 1002, 39 L.Ed.2d 209 (1974); C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3566, pp. 437-438 (1975).2 72 Appellees do not contend that the Price-Anderson Act itself grants to them personal rights which may be vindicated in a federal proceeding. Since the only property rights they assert arise under North Carolina law, the District Court had no jurisdiction to consider whether the setting up of an Act of Congress as a defense against those rights would deny them due process of law under the Fifth Amendment. 73 Indeed, the Court does not even contend that there is an independent statutory source of jurisdiction over Duke. Ante, at 72 n. 16. It suggests instead that the complaint states a claim against the Nuclear Regulatory Commission, not as a joint tortfeasor under North Carolina law, but as the administrator of an unconstitutional federal statute. The Court's theory is that the complaint alleges the existence of an implied right of action under the Fifth Amendment to obtain relief against arbitrary federal statutes. It can hardly be said that this theory of the case emerges with crystal clarity from either the complaint or the brief of the appellees. 74 More importantly, there is no allegation in this complaint that the Nuclear Regulatory Commission has taken or will take any unconstitutional action at all. The complaint alleges only that the Commission granted construction permits to Duke, and that it will enter into an agreement "to indemnify Duke for any nuclear incident exceeding the amount of $125,000,000 subject to a maximum liability of $560,000,000." App. 31, ¶ 13. Neither of these actions is alleged to be unconstitutional. The gist of the complaint is the asserted unconstitutionality of 42 U.S.C. § 2210(e) (1970 ed., Supp. V), which limits Duke's liability. But this limitation of liability is separate and apart from the indemnity agreement which the Commission is authorized to execute under 42 U.S.C. § 2210(d) (1970 ed., Supp. V). The Commission has nothing whatever to do with the administration of the limitation of liability; whatever administration of that statute there is to be is left in the hands of the District Court. 42 U.S.C. § 2210(o ) (1970 ed. and supp. v). the dIstrict Court, of course, is not a party to this suit.3 75 It simply cannot be said that these allegations make out an actual controversy against the Commission. While the Commission may be quite interested in the constitutionality of the statute, that is hardly sufficient to establish a justiciable controversy. Muskrat v. United States, 219 U.S. 346, 361-362, 31 S.Ct. 250, 255-256, 55 L.Ed. 246 (1911). While appellees may have been damaged by Duke's decision to construct these plants, there is no "challenged action of the defendant" Commission to which their damage "fairly can be traced." Simon v. Eastern Ky. Wel- fare Rights Org., 426 U.S. 26, 41, 96 S.Ct. 1917, 1925, 48 L.Ed.2d 450 (1976). If Duke decided to proceed with construction despite a declaration of the statute's unconstitutionality, there would be nothing that the Commission could do to aid appellees. Where the prospect of effective relief against a defendant depends on the actions of a third party, no justiciable controversy exists against that defendant. Warth v. Seldin, 422 U.S. 490, 505, 95 S.Ct. 2197, 2208, 45 L.Ed.2d 343 (1975). In short, appellees' only conceivable controversy is with Duke, over whom the District Court had no jurisdiction. II 76 As appellees themselves describe the second aspect of their complaint, "the central issue is whether in the circumstances of this case, the complete destruction of appellees' property by a nuclear accident, occurring at one of Duke's plants, would be a 'taking' by the United States, as that term is defined in the Fifth Amendment." Brief for Appellees 62. This statement makes clear that appellees' claim arises not under the Price-Anderson Act but under the Fifth Amendment itself. Jurisdiction under § 1337 extends only to actions vindicating rights created by an Act of Congress. Compare Switchmen v. National Mediation Board, 320 U.S. 297, 300, 64 S.Ct. 95, 96, 88 L.Ed. 61 (1943), with General Committee v. Missouri-Kansas-Texas R. Co., 320 U.S. 323, 337, 64 S.Ct. 146, 152, 88 L.Ed. 76 (1943). Since it cannot be maintained that the Price-Anderson Act created appellees' asserted right to be free from takings for public use without just compensation, it follows that District Court jurisdiction may not be predicated upon § 1337. 77 The District Court does have jurisdiction to consider claims of taking under the Tucker Act, 28 U.S.C. § 1346(a)(2) (1976 ed.), where the amount in controversy does not exceed $10,000.4 "But the Act has long been construed as authorizing only actions for money judgments and not suits for equitable relief against the United States." Richardson v. Morris, 409 U.S. 464, 465, 93 S.Ct. 629, 631, 34 L.Ed.2d 647 (1973). It is incontro ertibly established that neither the Court of Claims nor the district courts have jurisdiction under the Tucker Act to issue the sort of declaratory relief granted here. Compare ibid., with United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969). Thus, the record does not establish any jurisdictional basis upon which the District Court could grant declaratory relief on appellees' taking claim. 78 There being no basis for District Court jurisdiction over either of appellees' claims, its judgment should be reversed and the cause remanded with instructions to dismiss the complaint for want of jurisdiction. 79 Mr. Justice STEVENS, concurring in the judgment. 80 The string of contingencies that supposedly holds this litigation together is too delicate for me. We are told that but for the Price-Anderson Act there would be no financing of nuclear power plants, no development of those plants by private parties, and hence no present injury to persons such as appellees; we are then asked to remedy an alleged due process violation that may possibly occur at some uncertain time in the future, and may possibly injure the appellees in a way that has no significant connection with any present injury. It is remarkable that such a series of speculations is considered sufficient either to make this litigation ripe for decision or to establish appellees' standing;* it is even more remarkable that this occurs in a case in which, as Mr. JUSTICE REHNQUIST demonstrates, there is no federal jurisdiction in the first place. 81 The Court's opinion will serve the national interest in removing doubts concerning the constitutionality of the Price-Anderson Act. I cannot, therefore, criticize the statesmanship of the Court's decision to provide the country with an advisory opinion on an important subject. Nevertheless, my view of the proper function of this Court, or of any other federal court, in the structure of our Government is ore limited. We are not statesmen; we are judges. When it is necessary to resolve a constitutional issue in the adjudication of an actual case or controversy, it is our duty to do so. But whenever we are persuaded by reasons of expediency to engage in the business of giving legal advice, we chip away a part of the foundation of our independence and our strength. 82 I join Mr. Justice REHNQUIST'S opinion concurring in the judgment. 1 Under the terms of the Energy Reorganization Act of 1974, 42 U.S.C. § 5801 et seq. (1970 ed., Supp. V), the Nuclear Regulatory Commission (NRC) has now replaced the AEC as the licensing and regulatory authority. 2 A "nuclear incident" is defined as "any occurrence . . . within the United States causing, within or outside the United States, bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or by-product material . . . ." 42 U.S.C. § 2014(q). 3 "The term 'person indemnified' means (1) with respect to a nuclear incident occurring within the United States . . . the person with whom an indemnity agreement is executed and any other person who may be liable for public liability . . . ." 42 U.S.C. § 2014(t). 4 By the terms of the Act as originally passed, it was only applicable to licenses issued between August 30, 1954, and August 1, 1967. § 4, 71 Stat. 576, as amended, 42 U.S.C. § 2210(c). 5 The waiver provision is incorporated in the indemnity agreement. The defenses of negligence, contributory negligence, charitable or governmental immunity and assumption of risk all are waived in the event of an extraordinary nuclear occurrence, as are, to a limited degree, defenses based on certain short state statutes of limitations. 80 Stat. 891, 42 U.S.C. § 2210(n)(1). See also 10 C.F.R. §§ 140.81 to 140.85, 140.91 to 140.92 (1977). 6 The Act was also amended in 1966 to provide for the transfer of all claims arising out of a nuclear incident to a single federal district court. 42 U.S.C. § 2210(n)(2). If the court finds that liability may exceed the liability limitation of the Act, immediate payments to injured parties are limited to 15% of the liability limitation until the court approves a plan of distribution to insure equitable treatment of all parties. § 2210(o ) (1970 ed. and Supp. V). 7 The NRC, which was empowered by the 1975 amendments to choose a figure in the $2-$5 million range, has set the assessment at $5 million. 42 Fed.Reg. 46 (1977). 8 As the number of reactors increases, the $5 million deferred premium in itself will yield a fund exceeding the present liability ceiling. For example, it is predicted that by 1985 there will be a maximum of 138 reactors operating, see Executive Office of the President, The National Energy Plan 71 (1977), which would produce $690 million in addition to whatever insurance is available from the private insurance market. Under the Act, the liability ceiling automatically increases to a level equal to the amount of primary and secondary (deferred premium) insurance coverage when the amount of such coverage exceeds the $560 million figure. 42 U.S.C. § 2210(e) (1970 ed., Supp. V). 9 Appellees' expert witness on insurance testified in the District Court that homeowners were unable to purchase insurance against nuclear catastrophes because "the nuclear industry has essentially absorbed the entire capacity of the private insurance markets in their need for property and liability insurance." App. 293-294. 10 The complaint also sought review of the AEC's decision to grant a construction permit for one of the plants. During the pendency of this action, however, the United States Court of Appeals for the District of Columbia Circuit decided that the AEC had properly issued the permits. Carolina Environmental Study Group v. United States, 166 U.S.App.D.C. 416, 510 F.2d 796 (1975). Accordingly, the District Court dismissed all counts of the complaint except those relating to the Price-Anderson Act's constitutionality. 11 Our jurisdiction was invoked under 28 U.S.C. § 1252 (1976 ed.), which provides for a direct appeal to this Court from any decision invalidating an Act of Congress in any suit to which the United States, its agencies, officers, or employees are parties. 12 The complaint provides in relevant part: "19. Since the Price-Anderson Act provides victims of a nuclear disaster no benefit while at the same time limiting their right to recover for their losses to approximately 21/2% of such losses, the operation of the $500 million limitation would, in the event of a nuclear disaster, deprive the persons injured by such a disaster of property rights without due process of law in violation of the Fifth Amendment to the Constitution of the United States." App. 32. 13 Mr Justice REHNQUIST would read the complaint, insofar as it alleges a denial of due process, as stating a claim only against Duke Power under North Carolina law. Under such a construction of the complaint, the question of the constitutionality of the Price-Anderson Act would emerge only in anticipation of a defense to appellees' state-law claims and thus would not support federal jurisdiction under the "well-pleaded" complaint rule regardless of the jurisdictional statute relied upon. See Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). We conclude that the complaint is more fairly read as stating a claim against the NRC directly under the Due Process Clause of the Fifth Amendment. See n. 12, supra. On this view, the "well-pleaded" complaint rule poses no bar to the assertion of jurisdiction. Appellees' claim under the Due Process Clause is an essential ingredient of a well-pleaded complaint asserting a right under the Constitution and is not simply a claim made in anticipation of a defense to be raised in an action having its origin in state law. See also n. 26, infra. 14 Previously § 1331(a) required a minimum amount in controversy in all suits, but a 1976 amendment eliminated the jurisdictional amount requirement in actions "brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity." Pub.L. 94-574, § 2, 90 Stat. 2721. Thus this action, at least as against the NRC, would seem clearly permitted by § 1331(a) without specification of an amount in controversy. See Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 608 n.6, 98 S.Ct. 2002, 2005 n.6, 56 L.Ed.2d 570 (1978). Appellees' failure to assert § 1331(a) as a basis for jurisdiction in their complaint is not fatal since the facts alleged are sufficient to support such jurisdiction. See 436 U.S., at 608 n.6, 98 S.Ct., at 2005 n.6. 15 Mr. Justice REHNQUIST suggests that appellees' "taking" claim will not support jurisdiction under § 1331(a), but instead that such a claim can be adjudicated only in the Court of Claims under the Tucker Act, 28 U.S.C. § 1491 (1976 ed.). We disagree. Appellees are not seeking compensation for a taking, a claim properly brought in the Court of Claims, but are now requesting a declaratory judgment that since the Price-Anderson Act does not provide advance assurance of adequate compensation in the event of a taking, it is unconstitutional. As such, appellees' claim tracks quite closely that of the petitioners in the Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), which were brought under § 1331 as well as the Declaratory Judgment Act. See App. in Regional Rail Reorganization Act Cases, O.T.1974, Nos. 74-165, 74-166, 74-167, 74-168, p. 161, 95 S.Ct. at p. 367. While the Declaratory Judgment Act does not expand our jurisdiction, it expands the scope of available remedies. Here it allows individuals threatened with a taking to seek a declaration of the constitutionality of the disputed governmental action before potentially uncompensable damages are sustained. 16 We need not resolve the question of whether Duke Power is a proper party since jurisdiction over appellees' claims against the NRC is established, and Duke's presence or absence makes no material difference to either our consideration of the merits of the controversy or our authority to award the requested relief. 17 For a detailed explanation of the nature and consequences of a core melt, see 431 F.Supp., at 206-207. 18 "We do not question that this type of harm may amount to an 'injury in fact' sufficient to lay the basis for standing . . . . Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society . . . ." Sierra Club v. Morton, 405 U.S., at 734, 92 S.Ct., at 1366. 19 It is argued that the District Court's findings on the question of injury in fact upon which we rely are clearly erroneous and should not be accepted as a predicate for standing. "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Application of this standard to the factual findings of the District Court does not persuade us that they should not be accepted. 20 Our recent cases have required no more than a showing that there is a "substantial likelihood" that the relief requested will redress the injury claimed to satisfy the second prong of the constitutional standing requirement. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 262, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977), quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976) ("MHDC has shown an injury to itself that is 'likely to be redressed by a favorable decision' "). See also Warth v. Seldin, 422 U.S. 490, 504, 506-507, 95 S.Ct. 2197, 2207, 2209-2210, 45 L.Ed.2d 343 (1975). 21 Nor was the situation different in 1965-1966, when the first 10-year renewal of Price-Anderson was considered. See H.R.Rep.No.883, 89th Cong., 1st Sess., 9 (1965). See generally Green 493. 22 "From what I know about nuclear power, it would be my recommendation that Duke proceed even in the absence of Price-Anderson. However, from the point of view of how others perceive nuclear power, there is some question about whether it would be a practical undertaking in the absence of the Act. . . . I have already been advised by several firms that the existence of Price-Anderson is required for them to be a supplier to our nuclear program . . .. If Price-Anderson did not exist, I would therefore have to evaluate the extent to which its absence caused disappearance of suppliers from the marketplace in arriving at my recommendation." App. 368-369. 23 The only injury that would possess the required subject-matter nexus to the due process challenge is the injury that would result from a nuclear accident causing damages in excess of the liability limitation provisions of the Price-Anderson Act. 24 In Linda R. S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973), a nontaxpayer suit, reference was made to Flast § nexus requirement in the course of denying appellant's standing to challenge the nonenforcement of Texas' desertion and nonsupport statute. Upon careful reading, however, it is clear that standing was denied not because of the absence of a subject-matter nexus between the injury asserted and the constitutional claim, but instead because of the unlikelihood that the relief requested would redress appellant's claimed injury. Id., at 618, 93 S.Ct., at 1149. This case thus provides no qualitative support for the broader application of Flast 's principles which appellants appear to advocate. Cf. Scott, Standing in the Supreme Court—A Functional Analysis, 86 Harv.L.Rev. 645, 660-662 (1973). 25 Both at the time of its formulation, see Flast v. Cohen, 392 U.S., at 120, 130-131, 88 S.Ct., at 1962, 1968-1969 (Harlan J., dissenting), and more recently, see United States v. Richardson, 418 U.S. 166, 181, 196 n. 18, 94 S.Ct. 2940, 2948, 2956, 41 L.Ed.2d 678 (1974). (POWELL, J., concurring), there have been questions as to whether the nexus requirement, even in the context of taxpayers' suits, is constitutionally mandated or is instead simply a prudential limitation. 26 Mr. Justice REHNQUIST undertakes to sever the action of the NRC in executing indemnity agreements under the Act from the Act's alleged constitutional infirmities—particularly the liability limitation provisions. Careful examination of the statutory mechanism indicates that such a separation simply cannot be sustained. The execution of the indemnification agreements by the NRC triggers the statutory ceiling on liability which, in terms, applies only to "persons indemnified." See 42 U.S.C. § 2210(e) (1970 ed., Supp. V). Thus, absent the execution of such agreements between the NRC and the licensees, the liability-limitation provisions of the Act, to which appellees object, would simply not come into play. This fact, coupled with the District Court's finding that "but for" the liability-limitation provisions there is a substantial likelihood that the contemplated plants would not be built or operated, is sufficient to establish the justiciability of appellees' claim against the Commission. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S., at 44-46, 96 S.Ct., at 1927-1928. 27 Appellees, in apparent reliance on our recent decision in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), argue that because the Price-Anderson Act encroaches on substantial state government interests, an augmented standard of review under the Due Process Clause is warranted. Nothing in National League of Cities or in our prior due process cases provides any support for this claim. 28 As the various studies considered by the District Court indicate, there is considerable uncertainty as to the amount of damages which would result from a catastrophic nuclear accident. See 431 F.Supp., at 210-214. The Reactor Safety Study published by the NRC in 1975 suggested that there was a 1 in 20,000 chance (per reactor year) of an accident causing property damage approaching $100 million and having only minor health effects. By contrast, when the odds were reduced to the range of 1 in 1 billion (per reactor year), the level of damages approached $14 billion; and 3,300 early fatalities and 45,000 early illnesses were predicted. NRC, Reactor Safety Study, An Assessment of Accident Risks in U. S. Commercial Nuclear Power Plants 83-85 (Wash.-1400, Oct. 1975). For a thorough criticism of the Reactor Safety Study, see EPA, Reactor Safety Study (Wash.-1400): A Review of the Final Report (June 1976). 29 "What we were thinking about was the magnitude of protection and we set up an arbitrary figure because it seemed to be practical at that time and because we didn't think an accident would happen . . . but yet we recognize that it could happen. We wanted to have a base to work from." Hearings before the Joint Committee on Atomic Energy on Possible Modification or Extension of the Price-Anderson Insurance And Ind mnity Act of 1957 In Order for Proper Planning of Nuclear Power Plants to Continue Without Delay, 93d Cong., 2d Sess., 68 (1974) (remarks of Rep. Holifield) (emphasis added). 30 Congress' conclusion that "the probabilities of a nuclear incident are much lower and the likely consequences much less severe than has been thought previously," was a key factor in the decision not to increase the $560 million liability ceiling in 1975. S.Rep. No. 94-454, p. 12 (1975), U.S.Code, Cong. & Admin.News 1975, pp. 2251, 2262. 31 In the past Congress has provided emergency assistance for victims of catastrophic accidents even in the absence of a prior statutory commitment to do so. For example in 1955, Congress passed the Texas City Explosion Relief Act, 69 Stat. 707, to provide relief for victims of the explosion of ammonium nitrate fertilizer in 1947. Congress took this action despite the decision in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), holding the United States free from any liability under the Federal Tort Claims Act for the damages incurred and injuries suffered. More recently Congress enacted legislation to provide relief for victims of the flood resulting from the collapse of the Teton Dam in Idaho. Pub.L. 94-400, 90 Stat. 1211. Under the Act, the Secretary of the Interior was authorized to provide full compensation for any deaths, personal injuries, or property damage caused by the failure of the dam. Ibid. The Price-Anderson Act is, of course, a significant improvement on these prior relief efforts because it provides an advance guarantee of recovery up to $560 million plus an express commitment by Congress to take whatever further steps are necessary to aid the victims of a nuclear incident. 32 Our cases have clearly established that "[a] person has no property, no vested interest, in any rule of the common law." Second Employers' Liability Cases, 223 U.S. 1, 50, 32 S.Ct. 169, 175, 56 L.Ed. 327 (1912), quoting Munn v. Illinois, 94 U.S. 113, 134, 24 L.Ed. 77 (1877). The "Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object," Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 58, 74 L.Ed. 221 (1929), despite the fact that "otherwise settled expectations" may be upset thereby. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752 (1976). See also Arizona Employers' Liability Cases, 250 U.S. 400, 419-422, 39 S.Ct. 553, 555-556, 63 L.Ed. 1058 (1919). Indeed, statutes limiting liability are relatively commonplace and have consistently been enforced by the courts. See, e. g., Silver v. Silver, supra (automobile guest statute); Providence & New York S.S. Co. v. Hill Mfg. Co., 109 U.S. 578, 3 S.Ct. 379, 27 L.Ed. 1038 (1883) (limitation of vessel owner's liability); Indemnity Ins. Co. of North America v. Pan American Airways, 58 F.Supp. 338 (SDNY 1944) (Warsaw Convention limitation on recovery for injuries suffered during international air travel). Cf. Thomason v. Sanchez, 539 F.2d 955 (C.A.3 1976) (Federal Driver's Act). 33 We reject at the outset appellees' contention that the Price-Anderson Act differs from other statutes limiting liability because the Act itself is the "but for" cause of the tort for which liability is limited. Put otherwise, the argument is that no quid pro quo can be provided by the Act since without it there would be no nuclear power plants and no possibility of accidents or injuries. As we understand the argument, it proceeds from the premise that prior to the enactment of the Price-Anderson Act, appellees had some right, cognizable under the Due Process Clause, to be free of nuclear power or to take advantage of the state of uncertainty which inhibited the private development of nuclear power. This premise we cannot accept. Appellees' only relevant right prior to the enactment of the Price-Anderson Act was to utilize their existing common-law and state-law remedies to vindicate any particular harm visited on them from whatever sources. After the Act was passed, that right at least with regard to nuclear accidents was replaced by the compensation mechanism of the statute, and it is only the terms of that substitution which are pertinent to the quid pro quo inquiry which appellees insist the Due Process Clause requires. 34 See Rylands v. Fletcher, L.R. 3 E. & I. App. (H.L.1868). See generally W. Prosser, Law of Torts § 79, p. 516 (4th ed. 1971); Cavers, Improving Financial Protection of the Public Against the Hazards of Nuclear Power, 77 Harv.L.Rev. 644, 649 (1964). 35 See n. 3, supra. 36 The expert testimony before the District Court indicated that Duke Power, one of the largest utilities in the country, could not be expected to accumulate more than $200 million for damages claims without reaching the point of insolvency. App. 393-397. This amount, even when coupled with the amount of available private insurance, would be less than the $560 million provided by the Act. Moreover, if the liability were of sufficient magnitude to force the utility or component manufacturer into bankruptcy or reorganization, recovery would likely be further reduced and delayed. See Joint Committee on Atomic Energy, Issues of Financial Protection in Nuclear Activities in Selected Materials on Atomic Energy Indemnity and Insurance Legislation, 93d Cong., 2d Sess., 110 (Comm. Print 1974). 37 See Prosser, supra, n.34, at 520-521. 38 The Act explicitly provides for "payments to, or for the aid of, claimants for the purpose of providing immediate assistance following a nuclear incident." 42 U.S.C. § 2210(m). Unlike the normal tort recovery situation, these emergency payments are made prior to the determination of injury and the setting of damages, and are not conditioned on the execution of any release by the victim. Ibid. 39 Appellees also contend that the Price-Anderson Act effects an unconstitutional "taking" because in the event of a catastrophic nuclear accident their property would be destroyed without any assurance of just compensation. We find it unnecessary to resolve the claim that such an accident would constitute a "taking" as that term has been construed in our precedents since on our reading the Price-Anderson Act does not withdraw the existing Tucker Act remedy, 28 U.S.C. § 1491 (1976 ed.). See Regional Rail Reorganization Act Cases, 419 U.S., at 125-136, 95 S.Ct., at 349-354. Appellees concede that if the Tucker Act remedy would be available in the event of a nuclear disaster, then their constitutional challenge to the Price-Anderson Act under the Just Compensation Clause must fail. Brief for Appellees 71 n. 56. The further question of whether a taking claim could be established under the Fifth Amendment is a matter appropriately left for another day. 1 Appellees have explicitly abandoned their claim based upon the so-called equal protection component of the Fifth Amendment "since in this case any equal protection arguments would be largely duplicative of appellees' due process arguments." Brief for Appellees, 21 n. 26. 2 The Court asserts that its decision today does not undermine the well-pleaded complaint doctrine because of its conclusion "that the complaint is more fairly read as stating a claim against the NRC directly under the Due Process Clause of the Fifth Amendment." Ante, at 69 n. 13. The supposed claim against the Commission arises only under federal law, since the complaint does not allege and the District Court did not find that North Carolina law would provide any remedy against it as a joint tortfeasor. On the Court's theory of the case, then, it need not decide whether jurisdiction could be obtained over Duke Power under § 1331. Ante, at 72 n. 16. That is a particularly felicitous conclusion from the Court's point of view, since the complaint does not allege that each member of the plaintiff class has a claim in excess of $10,000. against Duke Power, which is a prerequisite to jurisdiction under § 1331. Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). Despite the Court's assurances, it is conceivable that the practical effect of today's decision could be an erosion of the well-pleaded complaint doctrine. Had the plaintiffs in Mottley joined as defendants a federal agency having as ephemeral a relation to the statute challenged there as does the Commission to the statute involved here, the District Court, according to today's decision, would have had jurisdiction to consider the constitutionality of the statute, even though its judgment would not have been binding against the Louisville & Nashville Railroad. Innumerable federal statutes and regulations affect the daily decisions of private parties, who would undoubtedly appreciate the sort of advisory opinion rendered today on the validity of those provisions. This Court should not encourage the hope that such opinions may be obtained by suing an appropriate federal agency under a claim which verges on the frivolous. 3 Appellees' challenge to the construction permits was rejected in Carolina Environmental Study Group v. United States, 166 U.S.App.D.C. 416, 510 F.2d 796 (1975). It is true, as the Court remarks, ante, at 81 n. 26, that "absent the execution of such [indemnity] agreements between the NRC and the licensees, the liability-limitation provisions of the Act, to which appellees object, would simply not come into play." That logical connection, however, does not amount to an allegation that the Commission's execution of an indemnity agreement is itself unconstitutional. The only federal action challenged by this complaint is a hypothetical district court's hypothetical invocation of the statute in the event of a hypothetical nuclear accident. In that entire string of hypothetical events, no action of the Commission is alleged to be unconstitutional. 4 The Court concludes, ante, at 71 n. 15, although appellees do not so contend, that their taking claim is cognizable under 28 U.S.C. § 1331(a) (1976 ed.), which grants jurisdiction to the district courts where the suit "arises under the Constitution." The Court cites only the Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), in support of its conclusion that this claim may be maintained under § 1331. It is, of course, well established that "when questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us." Hagans v. Lavine, 415 U.S. 528, 535 n. 5, 94 S.Ct. 1372, 1378, 39 L.Ed.2d 577 (1974). In the Regional Rail Reorganization Act Cases this Court's opinion did not even cite the statutory basis for jurisdiction, much less consider its validity. To conclude that § 1331 embraces a "taking" claim makes the Tucker Act largely superfluous, cf. United States v. Testan, 424 U.S. 392, 404, 96 S.Ct. 948, 956, 47 L.Ed.2d 114 (1976), and will permit the district courts to consider claims of over $10,000 which previously could only be litigated in the Court of Claims. Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973). Such a significant expansion of the jurisdiction of the district courts should not be accomplished without the benefit of arguments and briefing. * With respect to whether appellees' claim of present injury is sufficient to establish standing, it should be noted that some sort of financing is essential to almost all projects, public or private. Statutes that facilitate and may be essential to the financing abound—from tax statutes to statutes prohibiting fraudulent securities transactions. One would not assume, however, that mere neighbors have standing to litigate the legality of a utility's financing. Cf. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539.

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438 U.S. 204 98 S.Ct. 2699 57 L.Ed.2d 705 William SWISHER et al., Appellants,v.Donald BRADY et al. No. 77-653. Argued March 29, 1978. Decided June 28, 1978. Syllabus Appellee minors brought a class action under 42 U.S.C. § 1983 seeking, on the basis of the Double Jeopardy Clause of the Fifth Amendment as applied to the States by the Fourteenth, to prevent the State of Maryland from filing exceptions with the Juvenile Court to proposed nondelinquency findings made by masters of that court pursuant to a rule of procedure (Rule 911) permitting the State to file such exceptions but further providing that the Juvenile Court judge, who is empowered to accept, modify, or reject, the master's proposals, can act on the exceptions only on the basis of the record made before the master, except that he may receive additional evidence to which the parties do not object. The District Court held that a juvenile subjected to a hearing before the master is placed in jeopardy, even though the master has no power to enter a final order, and that the Juvenile Court judge's review placed the juvenile in jeopardy a second time, and accordingly enjoined the appellant state officials from taking exceptions to either a master's proposed finding of nondelinquency or his proposed disposition. Held : The Double Jeopardy Clause does not prohibit Maryland officials, acting in accordance with Rule 911, from taking exceptions to a master's proposed findings. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346, distinguished. Pp. 214-219. (a) The State by filing such exceptions does not require an accused to stand trial a second time, but rather the Stat has created a system with Rule 911 in which an accused juvenile is subjected to a single proceeding which begins with a master's hearing and culminates with an adjudication by a judge. P. 215. (b) A Rule 911 proceeding does not provide the prosecution the forbidden "second crack" at the accused, since under the Rule the State presents its evidence once before the master, and the record is then closed unless the minor consents to the presentation of additional evidence before the judge. Pp. 215-216. (c) Nor does Rule 911, on the alleged ground that it gives the State a chance to persuade two factfinders—the master and the judge—violate the Double Jeopardy Clause's prohibition against the prosecutor's enhancing the risk that an innocent defendant may be convicted, since the Role confers the role of factfinder and adjudicator only on the judge, who is empowered to accept, modify, or reject the master's proposals. P. 216. (d) There is nothing in the record to indicate that the Rule 911 procedure unfairly subjects the defendant to the embarrassment, expense, and ordeal of a second trial proscribed in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, since even if the juvenile participates and his attorney appears in the Juvenile Court proceeding (and it does not appear that this is the practice), the burdens are more akin to those resulting from a judge's permissible request for post-trial briefing or argument following a bench trial than to the "expense" of a full-blown second trial. Pp. 216-217. (e) To the extent the Juvenile Court judge makes supplemental findings in a manner permitted by Rule 911—either sua sponte, or in response to the State's or juvenile's exceptions, and either on the record before the master or on a record supplemented by evidence to which the parties do not object—he does so without violating the Double Jeopardy Clause's constraints. United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 distinguished; cf. United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65. Pp. 217-219. 436 F.Supp. 1361, reversed and remanded. George A. Nilson, Baltimore, Md., for appellants. Peter S. Smith, Baltimore, Md., for appellees. Mr. Chief Justice BURGER delivered the opinion of the Court. 1 This is an appeal from a three-judge District Court for the District of Maryland. Nine minors, appellees here, brought an action under 42 U.S.C. § 1983, seeking a declaratory judgment and injunctive relief to prevent the State from filing exceptions with the Juvenile Court to proposed findings and recommendations made by masters of that court. The minors' claim was based on an alleged violation of the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment. The District Court's jurisdiction was invoked under 28 U.S.C. §§ 1343, 2281, and 2284 (as then written); this Court's jurisdiction, under 28 U.S.C. § 1253. 2 * In order to understand the present Maryland scheme for the use of masters in juvenile court proceedings, it is necessary to trace briefly the history both of antecedent schemes and of this and related litigation. 3 Prior to July 1975, the use of masters in Maryland juvenile proceedings was governed by Rule 908(e), Maryland Rules of Procedure. It provided that a master "shall hear such cases as may be assigned to him by the court." The Rule further directed that, at the conclusion of the hearing, the master transmit the case file and his "findings and recommendations" to the Juvenile Court. If no party filed exceptions to these findings and recommendations, they were to be "promptly . . . confirmed, modified or remanded by the judge." If, however, a party filed exceptions—and in delinquency hearings, only the State had the authority to do so—then, after notice, the Juvenile Court judge would "hear the entire matter or such specific matters as set forth in the exceptions de novo."1 4 In the city of Baltimore, after the State filed a petition alleging that a minor had committed a delinquent act,2 the clerk of the Juvenile Court3 generally would assign the case to one of seven masters.4 In the ensuing unrecorded hearing, the State would call its witnesses and present its evidence in accordance with the rules of evidence applicable in criminal cases. The minor could offer evidence in defense. At the conclusion of the presentation of evidence, the master usually would announce his findings and contemplated recommendations. In a minority of those cases where the recommendations favored the minor's position, the State would file exceptions, whereupon the Juvenile Court judge would try the case de novo.5 5 In 1972, a Baltimore City Master concluded, after a hearing, that the State had failed to show beyond a reasonable doubt that a minor, William Anderson, had assaulted and robbed a woman. His recommendation to the Juvenile Court judge reflected that conclusion. The State filed exceptions. Anderson responded with a motion to dismiss the notice of exceptions, contending that Rule 908(e), with its provision for a de novo hearing, violated the Double Jeopardy Clause. The Juvenile Court judge ruled that juvenile proceedings as such were not outside the scope of the Double Jeopardy Clause. He then held that the proceeding before him on the State's exceptions would violate Anderson's right not to be twice put in jeopardy and, on that basis, granted the motion to dismiss. The judge granted the same relief to similarly situated minors, including several who later initiated the present litigation. 6 The State appealed and the Court of Special Appeals reversed. In re Anderson, 20 Md.App. 31, 315 A.2d 540 (1974). That court assumed, for purposes of its decision, that jeopardy attached at the commencement of the initial hearing before the master. It held, however: 7 "[T]here is no adjudication by reason of the master's findings and recommendations. The proceedings before the master and his findings and recommendations are simply the first phase of the hearing which continues with the consideration by the juvenile judge. Whether the juvenile judge, in the absence of exceptions, accepts the master's findings or recommendations, modifies them or remands them, or whether, when exceptions are filed, he hears the matter himself de novo, there is merely a continuance of the hearing and the initial jeopardy. In other words, the hearing, and the jeopardy thereto attaching, terminate only upon a valid adjudication by the juvenile judge, not upon the findings and recommendations of the master." Id., at 47, 315 A.2d, at 549 (footnotes omitted; emphasis added). 8 On this basis, the court concluded that the de novo hearing was not a second exposure to jeopardy. 9 On appeal by the minors, the Court of Appeals affirmed, although on a rationale different from that of the intermediate appellate court. In re Anderson, 272 Md. 85, 321 A.2d 516 (1974). It held that "a hearing before a master is not such a hearing as places juvenile in jeopardy." Central to this holding was the court's conclusion that masters in Maryland serve only as ministerial assistants to judges; although authorized to hear evidence, report findings, and make recommendations to the judge, masters are entrusted with none of the judicial power of the State, including the sine qua non of judicial office the power to enter a binding judgment.6 10 In November 1974, five months after the Court of Appeals' decision, nine juveniles sought federal habeas corpus relief, contending that by taking exceptions to masters' recommendations favorable to them the State was violating their rights under the Double Jeopardy Clause. These same nine minors also initiated a class action under 42 U.S.C. § 1983 in which they sought a declaratory judgment and injunctive relief against the future operation of Rule 908(e). The sole constitutional basis for their complaint was, again, the Double Jeopardy Clause. A three-judge court was convened to hear this matter, and it is the judgment of that court we now review. 11 Before either the three-judge District Court or the single judge reviewing the habeas corpus petitions could act, the Maryland Legislature enacted legislation which, for the first time, provided a statutory basis for the use of masters in juvenile court proceedings. In doing so, it modified slightly the scheme previously operative under Rule 908(e). The new legislation required that hearings before a master be recorded and that, at their conclusion, the master submit to the Juvenile Court judge written findings of fact, conclusions of law, and recommendations. Either party was authorized to file exceptions and could elect a hearing on the record or a de novo hearing before the judge. The legislature specified that the master's "proposals and recommendations . . . for juvenile causes do not constitute orders or final action of the court." Accordingly, the judge could, even in the absence of exceptions, reject a master's recommendations and conduct a de novo hearing or, if the parties agreed, a hearing on the record. Md. Cts. & Jud. Proc. Code Ann. § 3-813 (Supp.1977). 12 In June 1975, within two months of the enactment of § 3-813 and before its July 1, 1975 effective date, the single-judge United States District Court held that the Rule 908.e provision for a de novo hearing on the State's exceptions violated the Double Jeopardy Clause. Aldridge v. Dean, 395 F.Supp. 1161 (Md.1975). In that court's view, a juvenile was placed in jeopardy as soon as the State offered evidence in the hearing before a master. The court also concluded that to subject a juvenile to a de novo hearing before the Juvenile Court judge was to place him in jeopardy a second time. Accordingly, it granted habeas corpus relief to the six petitioners already subjected by the State to a de novo hearing. The petitions of the remaining three, who had not yet been brought before the Juvenile Court judge, were dismissed without prejudice as being premature. 13 In response to both the enactment of § 3-813 and the decision in Aldridge v. Dean, supra, the Maryland Court of Appeals, in the exercise of its rulemaking power, promulgated a new rule, and the one currently in force, Rule 911, to govern the use of masters in juvenile proceedings.7 Rule 911 differs from the statute in significant aspects. First, in order to emphasize the nonfinal nature of a master's conclusions, it stresses that all of his "findings, CONCLUSIONS, RECOMMENDATIONS OR . . . ORDERS" ARE ONLY PROPOSED. Second, the State no longer has power to secure a de novo hearing before the Juvenile Court judge after unfavorable proposals y the master. The State still may file exceptions, but the judge can act on them only on the basis of the record made before the master and "such additional [relevant] evidence . . . to which the parties raise no objection."8 The judge retains his power to accept, reject, or modify the master's proposals, to remand to the master for further hearings, and to supplement the record for his own review with additional evidence to which the parties do not object.9 14 Thus, Rule 911 is a direct product of the desire of the State to continue using masters to meet the heavy burden of juvenile court caseloads while at the same time assuring that their use not violate the constitutional guarantee against double jeopardy. To this end, the Rule permits the presentation and recording of evidence in the absence of the only officer authorized by the state constitution, see In re Anderson, 272 Md., at 104-105, 321 A.2d, at 526-27, and by statute, § 3-813, to serve as the factfinder and judge. 15 After the effective date of Rule 911, July 1, 1975, the plaintiffs in the § 1983 action amended their complaint to bring Rule 911 within its scope. They continued to challenge the state procedure, however, only on the basis of the Double Jeopardy Clause. Other juveniles intervened as the ongoing work of the juvenile court brought them within the definition of the proposed class. Their complaints in intervention likewise rested only on the Double Jeopardy Clause. 16 The three-judge District Court certified the proposed class under Fed.Rule Civ.Proc. 23(b)(2) to consist of all juveniles involved in proceedings where the State had filed exceptions to a master's proposed findings of nondelinquency. That court then held that a juvenile subjected to a hearing before a master is placed in jeopardy, even though the master has no power to enter a final order. It also held that the Juvenile Court judge's review of the record constitutes a "second proceeding at which [the juvenile] must once again marshal whatever resources he can against the State's and at which the State is given a second opportunity to obtain a conviction." 436 F.Supp. 1361, 1369 (Md.1977). Accordingly, the three-judge District Court enjoined the defendant state officials10 from taking exceptions to either a master's proposed finding of nondelinquency or his proposed disposition. 17 We noted probable jurisdiction solely to determine whether the Double Jeopardy Clause prohibits state officials, acting in accordance with Rule 911, from taking exceptions to a master's proposed findings.11 434 U.S. 963, 98 S.Ct. 501, 54 L.Ed.2d 449 (1977). II 18 The general principles governing this case are well established. 19 "A State may not put a defendant in jeopardy twice for the same offense. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal. The public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though 'the acquittal was based upon an egregiously erroneous foundation.' . . . If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair. 20 "Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant's 'valued right to have his trial completed by a particular tribunal.' . . . Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial." Arizona v. Washington, 434 U.S. 497, 503-505, 98 S.Ct. 824, 829, 55 L.Ed.2d 717 (1978) (footnotes omitted). 21 In the application of these general principles, the narrow question here12 is whether the State in filing exceptions to a master's proposals, pursuant to Rule 911,13 thereby "require[s] an accused to stand trial" a second time. We hold that it does not. Maryland has created a system with Rule 911 in which an accused juvenile is subjected to a single proceeding which begins with a master's hearing and culminates with an adjudication by a judge. 22 Importantly, a Rule 911 proceeding does not impinge on the purposes of the Double Jeopardy Clause. A central purpose "of the prohibition against successive trials" is to bar "the prosecution [from] another opportunity to supply evidence which it failed to muster in the first proceeding." Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978). A Rule 911 proceeding does not provide the prosecution that forbidden "second crack." The State presents its evidence once before the master. The record is then closed, and additional evidence can be received by the Juvenile Court judge only with the consent of the minor. 23 The Double Jeopardy Clause also precludes the prosecutor from "enhanc[ing] the risk that an innocent defendant may be convicted," Arizona v. Washington, supra, at 504, 98 S.Ct., at 829 by taking the question of guilt to a series of persons or groups empowered to make binding determinations. Appellees contend that in its operation Rule 911 gives the State the chance to persuade two such factfinders: first the master, then the Juvenile Court judge. In support of this contention they point to evidence that juveniles and their parents sometimes consider the master "the judge" and his recommendations "the verdict." Within the limits of jury trial rights, see McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), and other constitutional constraints, it is for the State, not the parties, to designate and empower the factfinder and adjudicator. And here Maryland has conferred those roles only on the Juvenile Court judge. Thus, regardless of which party is initially favored by the master's proposals, and regardless of the presence or absence of exceptions, the judge is empowered to accept, modify, or reject those proposals.14 24 Finally, there is nothing in the record to indicate that the procedure authorized under Rule 911 unfairly subjects the defendant to the embarrassment, expense, and ordeal of a second trial proscribed in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). Indeed, there is nothing to indicate that the juvenile is even brought before the judge while he conducts the "hearing on the record," or that the juvenile's attorney appears at the "hearing" and presents oral argument or written briefs. But even if there were such participation or appearance, the burdens are more akin to those resulting from a judge's permissible request for post-trial briefing or argument following a bench trial than to the "expense" of a full-blown second trial contemplated by the Court in Green. 25 In their effort to characterize a Rule 911 proceeding as two trials for double jeopardy purposes, appellees rely on two decisions of this Court, Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), and United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975).15 26 In Breed, we held that a juvenile was placed twice in jeopardy when, after an adjudicatory hearing in Juvenile Court on a charge of delinquent conduct, he was transferred to adult criminal court, tried, and convicted for the same conduct. All parties conceded that jeopardy attached at the second proceeding in criminal court. The State contended, however, that jeopardy did not attach in the Juvenile Court proceeding, although that proceeding could have culminated in a deprivation of the juvenile's liberty. We rejected this contention and also the contention that somehow jeopardy "continued" from the first to the second trial. Breed is therefore inapplicable to the Maryland scheme, where juveniles are subjected to only one proceeding, or "trial." 27 Appellees also stress this language from Jenkins : 28 "[I]t is enough for purposes of the Double Jeopardy Clause . . . that further proceedings of some sort, devoted to the resolution of factual issues, going to the elements of the offense charged, would have been required upon reversal and remand. Even if the District Court were to receive no additional evidence, it would still be necessary for it to make supplemental findings. . . . [To do so] would violate the Double Jeopardy Clause." 420 U.S., at 370, 95 S.Ct., at 1013 (emphasis added). 29 Although we doubt that the Court's decision in a case can be correctly identified by reference to three isolated sentences, any language in Jenkins must now be read in light of our subsequent decision in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). In Scott we held that it is not all proceedings requiring the making of supplemental findings that are barred by the Double Jeopardy Clause, but only those that follow a previous trial ending in an acquittal; in a conviction either not reversed on appeal or reversed because of insufficient evidence, see Burks v. United States, supra, or in a mistrial ruling not prompted by "manifest necessity," see Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). A Juvenile Court judge's decision terminating a Rule 911 proceeding follows none of those occurrences. Furthermore, Jenkins involved appellate review of the final judgment of a trial court fully empowered to enter that judgment. Nothing comparable occurs in a Rule 911 proceeding. See n. 15, supra. 30 To the extent the Juvenile Court judge makes supplemental findings in a manner permitted by Rule 911—either sua sponte, in response to the State's exceptions, or in response to the juvenile's exceptions, and either on the record or on a record supplemented by evidence to which the parties raise no objection he does so without violating the constraints of the Double Jeopardy Clause. 31 Accordingly, we reverse and remand for further proceedings consistent with this opinion. 32 It is so ordered. 33 Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice POWELL join, dissenting. 34 Appellees are a class of juveniles who, following adjudicatory hearings on charges of criminal conduct, were found nondelinquent by a "master." Because the State has labeled the master's findings as "proposed," the Court today allows the State in effect to appeal those findings to a "judge," who is empowered to reverse the master's findings and convict the juvenile. The Court's holding is at odds ith the constitutional prohibition against double jeopardy, made applicable to the States by the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), and specifically held to apply to juvenile proceedings in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). 35 The majority does not purport to retreat from our holding in Breed. Yet the Court reaches a result that it would not countenance were this a criminal prosecution against an adult, for the juvenile defendants here are placed twice in jeopardy just as surely as if an adult defendant, after acquittal in a trial court, were convicted on appeal. In addition to violating the Double Jeopardy Clause, Maryland's scheme raises serious due process questions because the judge making the final adjudication of guilt has not heard the evidence and may reverse the master's findings of nondelinquency based on the judge's review of a cold record. For these reasons, I dissent. 36 * While the first inquiry in any double jeopardy case must be whether jeopardy has attached, see Crist v. Bretz, 437 U.S. 28, 32-33, 98 S.Ct. 2156, 2159, 57 L.Ed.2d 24 (1978); Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975), I agree with the Court that jeopardy does attach at the master's hearing, ante, at 215 n. 12. In Breed v. Jones, supra, we held that jeopardy attaches "at a proceeding whose object is to determine whether [a juvenile] has committed acts that violate a criminal law." 421 U.S., at 529, 95 S.Ct. at 1785. The master's hearing clearly has this as an object. Under Maryland law, the master is empowered to conduct a full "adjudicatory hearing," in order "to determine whether the allegations in the petition . . . are true." Rule 914(a); Md. Cts. & Jud. Proc. Code Ann. § 3-801(b) (Supp.1977); see Rules 911, 914(f).1 And it is at this hearing that the State introduces the evidence on which it seeks to have the determination of guilt or innocence rest. See Serfass v. United States, supra, 420 U.S., at 389, 95 S.Ct., at 1063. See also Crist v. Bretz, supra, 437 U.S., at 51-52, 98 S.Ct., at 2168-2169 (POWELL, J., dissenting). 37 My disagreement with the Court lies in its misapplication of well-settled double jeopardy rules applicable once jeopardy has attached. As the Court itself recognizes, ante, at 214, the Double Jeopardy Clause "unequivocally prohibits a second trial following an acquittal," Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 55 L.Ed.2d 717 (1978). Just as unequivocally, it prevents the prosecution from seeking review or reversal of a judgment of acquittal on appeal. Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904). And even where the first trial does not end in a final judgment, the "defendant's valued right to have his trial completed by a particular tribunal," absent a " 'manifest necessity' " for terminating the first proceedings, is protected by this Clause. Wade v. Hunter, 336 U.S. 684, 689-690, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949), quoting United States v. Perez, 22 U.S. 579, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824); see ante, at 214-215. 38 These rules are designed to serve the underlying purposes of the Double Jeopardy Clause, the most fundamental of which is to protect an accused from the governmental harassment and oppression that can so easily arise from the massed power of the State in confrontation with an individual. See Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). As the Court recognizes, the Double Jeopardy Clause serves to preclude the State from having " 'another opportunity to supply evidence which it failed to muster in the first proceeding' "; to avoid the risk that a defendant, though in fact innocent, may be convicted by a successive decisionmaker; and to prevent the State from unfairly subjecting a defendant "to the embarrassment, expense, and ordeal of a second trial." Ante, at 216. It is against these touchstones of law that the Maryland scheme must be evaluated. A. 39 After rejecting the State's chief argument—that jeopardy does not attach in hearings before a master—the Court reaches its result primarily by ignoring the undisputed fact that state law commits to the master a factfinding function. Admittedly, the Maryland proceedings are somewhat difficult to classify into the customary pigeonholes of double jeopardy analysis, but that is precisely because the State has engaged in a novel redefinition of trial and appellate functions in a quasi-criminal proceeding, intentionally designed to avoid the constraints of the Double Jeopardy Clause.2 While a State is, of course, free to designate a "master," a "judge," or some other officer to conduct juvenile adjudicatory hearings, our Constitution is not so fragile an instrument that its substantive prohibitions may be evaded by formal designations that fail to correspond with the actual functions performed. 40 Viewing the master and judge in terms of their relative functions, I think the appropriate analogy is between a trial judge and an appellate court with unusually broad powers of review. In the cases before us, the masters had made unequivocal findings, on the facts, that the State had not proved its case, and the State sought to have the judge overturn these findings.3 By ignoring these functional considerations, the Court permits the State to circumvent the protections of the Double Jeopardy Clause by a mere change in the formal definitions of finality. The Court thus makes the linchpin of its holding a formalism that belies our insistence that "courts eschew . . . 'label[s]-of-convenience . . . attached to juvenile proceedings,' In re Gault [387 U.S. 1], 50, 87 S.Ct. [1428], at 1455 [18 L.Ed.2d 527 (1967)], and that 'the juvenile process . . . be candidly appraised,' [id.,] at 21, 87 S.Ct. at 1440." Breed v. Jones, 421 U.S., at 529, 95 S.Ct., at 1785. 41 (1) 42 The Court describes the Maryland system as one permitting "the presentation and recording of evidence in the absence of the only officer authorized by the state constitution . . . and by statute . . . to serve as the factfinder and judge." Ante, at 212. It is inaccurate, however, to say that only the judge is "authorized" under Maryland law to act as a factfinder.4 The master does not simply act as a referee at the hearing, deciding evidentiary questions and creating a record placed before the judge. Rather, Rule 911 directs that, at the end of the disposition hearing (which follows the adjudicatory hearing), the master "transmit to the judge the entire file in the case, together with a written report of his proposed findings of fact, conclusions of law, recommendations and proposed orders with respect to adjudication and disposition." Rule 911(b).5 43 That Maryland contemplates an actual factfinding function for the master is emphasized by the fact that neither the Rule nor the statute requires the "judge" to read the entire record, listen to the tape recording of the adjudicatory hearing, or otherwise expose himself to the full factual record as it was presented to the master. Indeed, the Rule expressly recognizes that the judge may enter his order "based on" the master's findings. Rule 911(d). The master himself thus serves as a factfinder of first instance; while his findings are only "proposed," they may be accepted by the judge without an independent review of the entire record. (2) 44 In Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904), we held that the Double Jeopardy Clause prohibited an appellate court in the Philippines from reversing a verdict of acquittal rendered by the trial court in a bench trial and entering a verdict of guilty.6 The Government had argued that, under controlling Spanish law, "[t]he original trial is a unitary and continuous thing, and is not complete until the appellate court has pronounced judgment." Brief for United States, O.T. 1903, No. 244, p. 39. This Court, however, held that American constitutional law governed and that the Double Jeopardy Clause prohibited the Government from appealing a judgment of acquittal entered by the first trier of facts. In so holding, the Court rejected Mr. Justice Holmes' "continuing jeopardy" argument, 195 U.S., at 134-137, 24 S.Ct., at 806-807 (dissenting opinion), an argument that we have consistently refused to adopt, see, e. g., United States v. Wilson, 420 U.S. 332, 352, 95 S.Ct. 1013, 1026, 43 L.Ed.2d 232 (1975), and to which the State's position here bears an uncomfortable resemblance.7 45 There are, of course, differences between Kepner and the instant case. In Kepner the court of first instance apparently had authority to enter an adjudication that would be final absent an appeal by either party, whereas here the masters do not have power to enter a final order of acquittal. But as we have repeatedly emphasized, an "acquittal" is n t necessarily determined by the form of the order. United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977); see United States v. Wilson, supra, 420 U.S., at 336, 95 S.Ct., at 1018; United States v. Sisson, 399 U.S. 267, 270, 90 S.Ct. 2117, 2119, 26 L.Ed.2d 608 (1970). As the Kepner Court noted in support of its holding that a bench acquittal could not be appealed, a jury verdict of acquittal, even when not followed by a formal judgment of the trial court, bars further proceedings under the Double Jeopardy Clause. 195 U.S., at 130, 24 S.Ct., at 804. Here, while the master does not formally make a final adjudication, in all other respects his proposed finding of nondelinquency is fully equivalent to an acquittal: after a plenary adjudicatory hearing, he makes "a resolution, correct or not, of some or all of the factual elements of the offense charged." United States v. Martin Linen Supply Co., supra, 430 U.S., at 571, 97 S.Ct., at 1355. And the State's exception to the master's finding of nondelinquency engenders the court's verdict of acquittal. 46 The Court's rationale allows States to avoid the Kepner holding by the simple expedient of changing the definitions of finality without changing the functions performed by judges at different levels of decision. The decision today might well be read to hold that the Double Jeopardy Clause is no bar to structuring a juvenile justice system or, for that matter, an adult criminal justice system so as to have several layers of adjudication, none of which is final until the State has exhausted its last appeal.8 This proliferation of levels at which a defendant—juvenile or adult—must defend himself against an adjudication of guilt is precisely the kind of evil that the Double Jeopardy Clause was designed to forbid. Yet under the Court's rationale, this is seemingly permissible so long as the State takes care to define the lower levels of decisionmaking as only "proposed" or "tentative" in nature, thereby commingling traditional trial and appellate functions. B 47 Even if the master's findings are not regarded as an acquittal, the Double Jeopardy Clause does more than simply protect acquittals from review on direct appeal. It also protects the defendant's right to go to judgment before a "particular tribunal" once jeopardy has attached, absent a " 'manifest necessity' " justifying termination of the first proceeding. Wade v. Hunter, 336 U.S., at 689-690, 69 S.Ct., at 837. This rule is designed in part to ensure that the government not be able to bolster its case by additional evidence or arguments, once it believes that its evidence has not persuaded the first tribunal. See Arizona v. Washington, 434 U.S., at 503-505, 98 S.Ct., at 829-830, and n. 14. But the Maryland system is structured so as to give the State precisely this type of proscribed opportunity, where it disagrees with the favorable rulings of the first trier of fact. 48 As recognized y the Court, jeopardy attaches at the master's hearing. This hearing is a formal, adjudicatory proceeding at which the State's witnesses testify and are cross-examined; the juvenile may present evidence in his own defense; and the juvenile is entitled to counsel and to remain silent. Presentation of evidence at that proceeding is keyed to the reactions and attitudes of the presiding master, who acts, for purposes of the adjudicatory hearing, as the "particular tribunal." A juvenile who has had such a hearing may justifiably expect that, when the master who has heard all this evidence announces a finding in his favor, it will be final. But a juvenile tried before a master in Maryland is never, as a matter of law, entitled to have his trial "completed" before the master, since his recommendations must be confirmed by the judge and may be ignored by him. 49 Thus, endemic to the Maryland system is a kind of interrupted proceeding which ensures that the defendant cannot get the benefit of the first trier of fact's reaction to the evidence. The system thereby poses a substantial risk that innocent defendants may be found guilty, since it allows the State a second opportunity to persuade a decisionmaker of the juvenile's guilt, after the first trier of fact has concluded that the State has not proved its case. See Ashe v. Swenson, 397 U.S. 436, 446, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970). Unless justified by a "manifest necessity"—not present here—the Double Jeopardy Clause condemns such a system. As we wrote in Green v. United States, 355 U.S., at 187-188, 78 S.Ct., at 223, the "underlying idea" of the Double Jeopardy Clause 50 "is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to enhancing the possibility that even though innocent he may be found guilty." 51 For these reasons, I conclude that the Maryland Rule, insofar as it permits a judge to review and set aside a master's findings favorable to the defendant on the facts of the case, violates the Double Jeopardy Clause. II 52 As the majority accurately states, the only issue raised in the complaints or focused upon in the parties' briefs was that of double jeopardy. It is argued by amicus, however, that the Maryland system, even if it were found to avoid double jeopardy problems, violates the Due Process Clause by permitting ultimate factfinding by a judge who did not actually conduct the trial.9 The Court does not reach this issue, apparently believing that it is not properly presented here.10 See ante, at 2705, 2707 n. 14, 2708. It is thus important to emphasize that the Maryland system and ones like it have not been held constitutional today; the Court's only holding is that such systems are not unconstitutional under the Double Jeopardy Clause. It is entirely open to this Court, and lower courts, to find in another case that a system like that in Maryland violates the Due Process Clause. 53 In In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), we held that a juvenile accused of a crime may be convicted only upon proof beyond a reasonable doubt, even if he is prosecuted in a juvenile court. The rationale of Winship suggests that the Due Process Clause requires the most reliable procedures to be used in making the reasonable-doubt determination in juvenile proceedings. As we have repeatedly emphasized: 54 " 'To experienced lawyers it is commonplace that the outcome of a lawsuit—and hence the vindication of legal rights—depends more often on how the factfinder appraises the facts than on a disputed construction of a statute . . .. Thus the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied.' " Wingo v. Wedding, 418 U.S. 461, 474, 94 S.Ct. 2842, 2850, 41 L.Ed.2d 879 (1974), quoting Speiser v. Randall, 357 U.S. 513, 520, 78 S.Ct. 1332, 1338, 2 L.Ed.2d 1460 (1958). 55 Over 30 years ago, in Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941), we recognized the importance to a reliable factfinding process of hearing live witnesses. The issue there was whether, on a federal habeas corpus petition, a District Judge could utilize a United States Commissioner to hold the evidentiary hearing and make recommended findings of fact and conclusions of law. Although our holding that the prisoner had a right to testify and present his evidence before a judge was a statutory one, our reasoning went to the fundamental nature of the kind of factfinding on which many judicial determinations must rest: 56 "One of the essential elements of the determination of the crucial facts is the weighing and appraising of the testimony. . . . We cannot say that an appraisal of the truth of the prisoner's oral testimony by a master or commissioner is, in the light of the purpose and object of the proceeding, the equivalent of the judge's own exercise of the function of the trier of the facts." Id., at 352, 61 S.Ct., at 1018. 57 Four Terms ago, in Wingo v. Wedding, supra, we adhered to this view, holding that the successor habeas corpus statute also required the district judge personally to conduct evidentiary hearings in habeas corpus cases. We not only disapproved the practice of referring evidentiary hearings to masters, but also held that the judge's listening to an electronic recording of the testimony was no substitute for his personally hearing and observing the witnesses to evaluate their credibility. 58 These decisions arose in the context of habeas corpus proceedings, where the prisoner has the burden of demonstrating that he is being held in violation of the Constitution. In a criminal proceeding, where the issue posed is the threshold one of whether a defendant has been proved guilty of a crime beyond a reasonable doubt, the same considerations surely have at least as much force. Indeed, the need for achieving the most reliable determinations of evidentiary facts, and particularly of credibility, exists a fortiori where the factual determinations must be made beyond a reasonable doubt. 59 As the Maryland courts have held, In re Brown, 13 Md.App. 625, 632-633, 284 A.2d 441, 444-445 (1971), and as is self-evident from the structure of Rule 911, the master's function at the hearing is, in large part, to assess the credibility of the witnesses. That function simply cannot be replicated by the "judge," acting in his essentially appellate capacity reviewing the record; as amicus cogently notes, "[t]rials-by-transcript can never be more than trials by substantial evidence."11 It would thus appear that the Maryland system of splitting the hearing of evidence from the final adjudication violates the Due Process Clause. 60 It is no answer to this problem that the juvenile defendant may elect to submit additional material to the judge when the State takes an exception to the master's finding. In the first place, the State apparently must agree to the supplementation of the record, and can thus stymie a defendant's efforts to persuade the judge that he is not guilty. See Rule 911(c). But more importantly, when a juvenile seeks to reopen the proceeding before the judge—in order to avoid having a case decided against him on the basis of a cold record in violation of the Due Process Clause he is being subjected to a second trial of the sort clearly prohibited by the Double Jeopardy Clause. The constitutionality of forcing a juvenile to such a choice between fundamental rights is questionable at best. Cf. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). III 61 That the current Maryland scheme cannot pass constitutional muster does not necessarily mean that the idea of using masters, or some other class of specially trained or selected personnel for juvenile court adjudications, is either unconstitutional or unwise. Using masters to adjudicate the more common charges may save scarce judicial resources for the more difficult cases. It may also aid the ultimate goals of a juvenile justice system by ensuring that the decisionmakers have some familiarity with the special problems of juvenile dispositions. But the State must find a way of implementing this concept without jeopardizing the constitutional rights of juveniles. Whether it does so by endowing masters with the power to make final adjudications or by some other means, matters not. What does matter is that, absent compelling circumstances not present here, the system of juvenile justice in this country must not be permitted to fall below the minimum constitutional standards set for adult criminal proceedings. 62 Accordingly, I dissent. 1 Rule 908(e) was the sole authority for the use of masters in juvenile causes. The practice was not treated in Maryland statutes. 2 Maryland, like 39 other States, defines a delinquent act as one that, if committed by an adult, would violate a criminal statute. See statutes collected at McCarthy, Delinquency Dispositions Under the Juvenile Justice Standards: The Consequences of a Change of Rationale, 52 N.Y.U.L.Rev. 1093 n. 2 (1977). 3 The official name of the court is Circuit Court of Baltimore City, Division for Juvenile Causes. 4 In 1974, of 5,345 delinquency hearings conducted in the Juvenile Court, 5,098 were held before masters. The remaining 247 were assigned in the first instance to the judge. 5 In 1974, the Juvenile Court judge conducted 80 de novo, or "exceptions," hearings in delinquency matters. All hearings before the judge were recorded. 6 When the minors appealed here from this decision, we dismissed for want of a substantial federal question, Epps v. Maryland, 419 U.S. 809, 95 S.Ct. 21, 42 L.Ed.2d 35 (1974), and also denied certiorari, Anderson v. Maryland, 421 U.S. 1000, 95 S.Ct. 2399, 44 L.Ed.2d 667 (1975). 7 At the time of its promulgation, the new Rule was numbered 910. As a result of recent nonsubstantive amendments and recodification, it received the 911 designation, by which it is referred to throughout this opinion. 8 The juvenile, after filing exceptions, can still elect either a de novo hearing or a hearing on the record. 9 Rule 911, in its entirety, provides: "a. Authority "1. Detention or Shelter Care. "A master is authorized to order detention or shelter care in accordance with Rule 912 (Detention or Shelter Care) subject to an immediate review by a judge if requested by any party. "2. Other Matters. "A master is authorized to hear any cases and matters assigned to him by the court, except a hearing on a waiver petition. The findings, conclusions and recommendations of a master do not constitute orders or final action of the court. "b. Report to the Court. "Within ten days following the conclusion of a disposition hearing by a master, he shall transmit to the judge the entire file in the case, together with a written report of his proposed findings of fact, conclusions of law, recommendations and proposed orders with respect to adjudication and disposition. A copy of his report and proposed order shall be served upon each party as provided by Rule 306 (Service of Pleadings and Other Papers). "c. Review by Court if Exceptions Filed. "Any party may file exceptions to the master's proposed findings, conclusions, recommendations or proposed orders. Exceptions shall be in writing, filed with the clerk within five days after the master's report is served upon the party, and shall specify those items to which the party excepts, and whether the hearing is to be de novo or on the record. A copy shall be served upon all other parties pursuant to Rule 306 (Service of Pleadings and Other Papers). "Upon the filing of exceptions, a prompt hearing shall be scheduled on the exceptions. An excepting party other than the State may elect a hearing de novo or a hearing on the record. If the State is the excepting party, the hearing shall be on the record, supplemented by such additional evidence as the judge considers relevant and to which the parties raise no objection. In either case the hearing shall be limited to those matters to which exceptions have been taken. "d. Review by Court in Absence of Exceptions. "In the absence of timely and proper exceptions, the master's proposed findings of fact, conclusions of law and recommendations may be adopted by the court and the proposed or other appropriate orders may be entered based on them. The court may remand the case to the master for further hearings, or may, on its own motion, schedule and conduct a further hearing supplemented by such additional evidence as the court considers relevant and to which the parties raise no objection. Action by the court under this section shall be taken within two days after the expiration of the time for filing exceptions." 10 Defendants, appellants here, are the State's Attorney for Baltimore City, the operations chief of the State's Attorney's Office for Baltimore City, the Chief State Attorney assigned to the Baltimore City Juvenile Court, and the Clerk of that court. 11 The State did not contend, either in the District Court or here, that appellees' suit for injunctive relief should be dismissed under the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). In these circumstances, we are not inclined to examine the application of the doctrine sua sponte. See Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 477-480, 97 S.Ct. 1898, 1904, 52 L.Ed.2d 513 (1977) ("If the State voluntarily chooses to submit to a federal forum, principles of comity do not demand that the federal court force the case back into the State's own system"). There is also a mootness question in this case. At the time of final argument before the District Court, Fields, the last in a series of intervening plaintiffs, was the only named plaintiff with a live controversy against the State. By that time, the State had either withdrawn its exceptions against the other named plaintiffs or completed the adjudicatory process by securing a ruling, one way or the other, from the Juvenile Court judge. After final argument, but before the District Court announced its decision, the State withdrew its exceptions to the master's proposals respecting Fields. Nevertheless, the District Court, at the outset of its decision, granted Fields' motion to intervene and certified the class. 436 F.Supp., at 1362. We conclude that under the principles announced in Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), the State's action, with respect to the original named plaintiffs and the intervenors, did not deprive the District Court of the power to certify the class action when it did and that, accordingly, a live controversy presently exists between the unnamed class members and the State. In Sosna, we observed: "There may be cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion. In such instances, whether the certification can be said to 'relate back' to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review." Id., at 402 n. 11, 95 S.Ct., at 559. Here the rapidity of judicial review of exceptions to masters' proposals creates mootness questions with respect to named plaintiffs, and even perhaps with respect to a series of intervening plaintiffs appearing thereafter, "before the district court can reasonably be expected to rule on a certification motion." Ibid. In cases such as this one where mootness problems are likely to arise, district courts should heed strictly the requirement of Fed.Rule Civ.Proc. 23(c)(1) that "[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained." (Emphasis added.) 12 The State contends that jeopardy does not attach at the hearing before the master. Our decision in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), however, suggests the contrary conclusion. "We believe it is simply too late in the day to conclude . . . that a juvenile is not put in jeopardy at a proceeding whose object is to determine whether he has committed acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years." Id., at 529, 95 S.Ct., at 1785. The California juvenile proceeding reviewed in Breed involved the use of a referee, or master, and was not materially different—for purposes of analysis of attachment of jeopardy—from a Rule 911 proceeding. See generally In re Edgar M., 14 Cal.3d 727, 537 P.2d 406 (1975); cf. Jesse W. v. Superior Court, 20 Cal.3d 893, 576 P.2d 963 (1978). It is not essential to decision in this case, however, to fix the precise time when jeopardy attaches. 13 The District Court noted that Rule 911 differs from § 3-813, see supra, at 210-211, but concluded that under Maryland decisional law the Rule governs. 436 F.Supp., at 1365. The parties do not dispute the District Court's reading of state law. Accordingly, like the District Court, we consider only Rule 911 in resolving the constitutional challenge. 14 It is not usual in a criminal proceeding for the evidence to be presented and recorded in the absence of the one authorized to determine guilt. But if there are any objections to such a system, they do not arise from the guarantees of the Double Jeopardy Clause. 15 Appellees also rely on Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904). There a Manila lawyer was charged with embezzling the funds of his client. He was tried before the judge of a "court of first instance" and acquitted. The United States took an appeal to the Philippine Supreme Court, which, after reviewing the record, entered a judgment of guilty and imposed sentence. This Court held that an Act of Congress, which extended double jeopardy guarantees to the Philippines, required reversal of the conviction. The differences between the present case and Kepner are material. There the trial judge was authorized to try serious criminal cases and to enter judgment, either of acquittal or conviction. The Philippine trial judge did not serve as an "assistant" or master of the Philippine Supreme Court for the purpose of making proposed find ngs to the appellate judges. Id., at 115, 121, 133, 24 S.Ct., at 801, 806. Mr. Justice Brown in dissent accurately characterized the Philippine trial judge's role as embracing "the great and dangerous power of finally acquitting the most notorious criminals." Id., 195 U.S., at 137, 24 S.Ct., at 808. The Philippine Supreme Court's role was appellate, and its jurisdiction was invoked by the Government's decision to appeal an otherwise binding judgment. See also Trono v. United States, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292 (1905). 1 Thus, unlike a preliminary hearing (to which the State analogizes a master's hearing), where the inquiry is one of probable cause, the adjudicatory hearing conducted by the master is the beginning of the unitary process designated by the State of Maryland to determine the truth of the charges. The Maryland Court of Special Appeals has rejected the State's argument that masters' hearings are not adjudicatory: "We think it within the clear contemplation of the Maryland law that the 'adjudicatory hearing' is that phase of the total proceeding whereto witnesses are summonsed [sic ]; whereat they are sworn, confronted with the alleged delinquent, examined and cross-examined; whereat their demeanor is observed, their credibility assessed and their testimony . . . transcribed by a court reporter; whereat the alleged delinquent is represented by counsel and where he enjoys the right to remain silent . . .; whereat the State's Attorney marshals and presents the [State's] evidence . . .; and whereat the presiding judge or master makes and announces his finding. . . . "Conversely, we think it . . . equally clear . . . that the 'adjudicatory hearing' is not that phase of the proceeding, frequently conducted ex parte and . . . in camera, whereat the supervising judge ratifies, modifies or rejects the finding and recommendations of the master." In re Brown, 13 Md.App. 625, 632-633, 284 A.2d 441, 444-445 (1971). Although the Brown opinion was rendered prior to Maryland's revision of its rules relating to the use of masters, see ante, at 209-210, the record before us indicates that the character of the hearing has not materially changed since that de ision. 2 In response to an earlier decision holding that a second hearing before the judge, when the State excepted to the master's findings of nondelinquency, violated the Double Jeopardy Clause, Aldridge v. Dean, 395 F.Supp. 1161 (Md.1975), the State of Maryland modified its procedures to preclude a new hearing before the juvenile judge on the State's exceptions, unless both "parties" consent. See ante, at 210-211, 212. Following passage of these amended rules, the State moved to dismiss the instant proceeding as moot; the motion was denied. 3 For example, in one instance, the State's case rested on the identification testimony of the victim of a bicycle theft. At the close of the evidence the master announced that, because he was not persuaded beyond a reasonable doubt of the accuracy of the witness' identification, especially since it was uncorroborated, he found the defendant not guilty. In re McLean, summarized in 8 Record, Petitioner's Exhibit No. 49, p. 16. On the State's exception, the juvenile judge convicted the defendant. 4 It is not disputed here that, under the Maryland State Constitution, the State may validly delegate to masters authority to make proposed findings of fact under Rule 911. 5 We therefore need not rely on appellees' statistical proof, convincing as it may be, to conclude that in Maryland masters are supposed to find facts. Appellees' evidence, however, supports this interpretation of Maryland law. In Baltimore City in 1975 and 1976, there were seven masters and one Juvenile Court Judge. The District Court found that, except when the State filed an exception, all of the masters' recommended findings of nondelinquency had been approved by the judge. 436 F.Supp. 1361, 1364 (Md.1977) (three-judge court). Moreover, the first judge presented with appellees' double jeopardy claim—the state trial judge serving as the only Juvenile Court Judge in Baltimore from 1967-1975—agreed with the juveniles that permitting the State to take exceptions violated the Double Jeopardy Clause. His conclusion rested in part on his perception that "it is impossible for the Judge . . . , who also carries a full docket of cases himself, to exercise any independent, meaningful judgment in the overwhelming majority of the many thousands of [masters'] orders put before him each year . . . . With this being the case it is difficult to see how realistically a Master can be called only an adviser . . . . [T]he Master conducts, for all intents and purposes, full blown and complete proceedings through the adjudicatory and dispositional phases and . . . as a practical matter he imposes sanctions and can effectively deprive youngsters of their freedom." In re Anderson, No. 158187 (Cir.Ct.Balt.City, Juv.Div., Aug. 1, 1973), p. 39. The Juvenile Court Judge's decision was ultimately reversed on appeal. In re Anderson, 272 Md. 85, 321 A.2d 516 (1974). A report of the State Commission on Juvenile Justice in January 1977, after spending 18 months studying the Maryland juvenile courts, reached the same conclusion: "[W]ithout bearing legal responsibility for his decisions, the Master's recommended decisions become, in effect, final orders of the Court." Final Report of the Commission on Juvenile Jus ice to the Governor and General Assembly of Maryland 13 (1977). 6 In Kepner, the Court was technically construing an Act of Congress extending certain procedural protections to criminal trials conducted in the Philippines, which was a United States possession. However, the Court made clear that it construed the statutory language to incorporate the constitutional principles of double jeopardy, see 195 U.S., at 124, 24 S.Ct., at 802, and its decision is thus properly regarded by the Court today as a constitutional one, see ante, at 217 n. 15. 7 The Court explained the Spanish system of jeopardy, which the Government urged as applicable, as follows: "Under that system of law . . . a person was not . . . in jeopardy in the legal sense until there had been a final judgment in the court of last resort. The lower courts were deemed examining courts, having preliminary jurisdiction, and the accused was not finally convicted or acquitted until the case had been passed upon in the . . . Supreme Court . . .. The trial was regarded as one continuous proceeding, and the protection given was against a second conviction after this final trial had been concluded in due form of law." 195 U.S., at 121, 24 S.Ct., at 801. The Court went on to make plain that this definition of finality of judgments of acquittal was inconsistent with our Double Jeopardy Clause. Thus it wrote that "[t]he court of first instance, having jurisdiction to try the question of the guilt or innocence of the accused, found Kepner not guilty; to try him again upon the merits, even in an appellate court, is to put him a second time in jeopardy for the same offense, if Congress used the terms as construed by this court in passing upon their meaning." Id., at 133, 24 S.Ct., at 806. 8 Thus, for example, a State might provide that in all bench trials, a judgment of acquittal does not become "final" for a certain amount of time in which an appellate court may review it. While this is an unlikely eventuality, it points up the fallacy in the Court's reasoning. Fortunately, the damage done by the Court's holding today is limited in its application by the Sixth Amendment right to a jury trial. Not only would it offend the Double Jeopardy Clause for a jury's verdict of acquittal to be set aside (whether or not a judgment were entered on the verdict), see United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445 (1892), cited in Kepner v. United States, 195 U.S., at 130, 24 S.Ct., at 804, but it would also dilute the constitutional right to a jury trial in criminal cases. The jury trial right has been held inapplicable to juvenile proceedings, however. See McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). 9 Brief of State Public Defender of California as Amicus Curiae. 10 Although the Court does not reach this issue, cf. Dandridge v. Williams, 397 U.S. 471, 475-476, n. 6, 90 S.Ct. 1153, 1157, 25 L.Ed.2d 491 (1970) (when "attention has been focused on other issues," remand may be appropriate), I believe it would be within its power to do so. See Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 157, 82 L.Ed. 224 (1937) (Brandeis, J.). Affirming the judgment below on this ground would not have the effect of expanding the relief granted: an injunction against the State's taking of exceptions. See United States v. New York Telephone Co., 434 U.S. 159, 166 n. 8, 98 S.Ct. 364, 369, 54 L.Ed.2d 376 (1977). While the due process claim was not raised in appellees' complaints, it was argued in substance to the District Court in opposition to appellants' motion to dismiss the complaint. See Plaintiffs' Memorandum in Response to Motion to Dismiss 9 n. 29, 2 Record Exhibit 19; Plaintiffs' Memorandum in Opposition to Motion to Dismiss, 2 Record Exhibit 29. Moreover, appellees' brief here makes the following argument: "It is only logical to assume that if a case is tried before enough judicial officers, one of them will eventually conclude that the defendant is guilty beyond a reasonable doubt. . . . [S]uch a process would emasculate this Court's decision in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)." Brief for Appellees 86. While this is not identical to the due process argument urged by amicus, it illustrates the intimate relationship between the double jeopardy and due process problems inherent in the Maryland scheme. 11 Brief for State Public Defender of California as Amicus Curiae 26.

12

438 U.S. 1 98 S.Ct. 2588 57 L.Ed.2d 553 Thomas L. HOUCHINS, Sheriff of the County of Alameda, California, Petitioner,v.KQED, INC., et al. No. 76-1310. Argued Nov. 29, 1977. Decided June 26, 1978. Syllabus After respondent broadcasting company, KQED, had been refused permission to inspect and take photographs at a portion (Little Greystone) of a county jail where a prisoner's suicide reportedly had occurred and where conditions were assertedly responsible for prisoners' problems, respondents brought this action under 42 U.S.C. § 1983 against petitioner, who supervised the jail, claiming deprivation of their First Amendment rights. Thereafter petitioner announced a program of regular monthly tours open to the public, including media reporters, of parts of the jail (but not including Little Greystone). Cameras or tape recorders were not llowed on the tours, nor were interviews with inmates. Persons, including members of the media, who knew a prisoner at the jail could visit him. The District Court preliminarily enjoined petitioner from denying KQED news personnel and responsible news media representatives reasonable access to the jail, including Little Greystone, and from preventing their using photographic or sound equipment or from conducting inmate interviews. The Court of Appeals affirmed. Held : The judgment is reversed and the case is remanded. Pp. 6-16; 16-19. 546 F.2d 284, reversed and remanded. 1 The Chief Justice, joined by Mr. Justice WHITE and Mr. Justice REHNQUIST, concluded that neither the First Amendment nor the Fourteenth Amendment provides a right of access to government information or sources of information within the government's control. The news media have no constitutional right of access to the county jail, over and above that of other persons, to interview inmates and make sound recordings, films, and photographs for publication and broadcasting by newspapers, radio, and television. Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495; Saxbe v. Washington Post, 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514. Pp. 8-16. 2 (a) The public importance of conditions in penal facilities and the media's role of providing information afford no basis for reading into the Constitution a right of the public or the media to enter those institutions, gather information, and take pictures for broadcast purposes. The First Amendment does not guarantee a right of access to sources of information within government control. Grosjean v. American Press, 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660, Mills v. Alabama, 384 U.S. 214, and other cases relied upon by respondents, concerned the freedom of the press to communicate information already obtained, but neither Grosjean nor Mills indicated that the Constitution compels the government to provide the press with information. Pp. 8-12. 3 (b) Whether the government should open penal institutions in the manner sought by respondents is a matter for legislative, not judicial, resolution. Pp. 12-16. 4 Mr. Justice STEWART, while agreeing that the Constitution does no more than assure the public and the press equal access to information generated or controlled by the government once the government has opened its doors, concluded that terms of access that are reasonably imposed on individual members of the public may—if they impede effective reporting without sufficient justification—be unreasonable as applied to journalists who are at a jail to convey to the general public what the visitors see. KQED was thus clearly entitled to some preliminary relief from the District Court, but not to an order requiring petitioner to permit reporters into the Little Greystone facility and requiring him to let them interview randomly encountered inmates. In those respects the injunction gave the press access to areas and sources of information from which persons on the public tours had been excluded, thus enlarging the scope of what had been opened to public view. Pp. 16-19. 5 Kelvin H. Booty, Jr., Oakland, Cal., for petitioner. 6 William Bennett Turner, San Francisco, Cal., for respondents. 7 Mr. Chief Justice BURGER announced the judgment of the Court and delivered an opinion, in which Mr. Justice WHITE and Mr. Justice REHNQUIST joined. 8 The question presented is whether the news media have a constitutional right of access to a county jail, over and above that of other persons, to interview inmates and make sound recordings, films, and photographs for publication and broadcasting by newspapers, radio, and television. 9 * Petitioner Houchins, as Sheriff of Alameda County, Cal., controls all access to the Alameda County Jail at Santa Rita. Respondent KQED operates licensed television and radio broadcasting stations which have frequently reported newsworthy events r lating to penal institutions in the San Francisco Bay Area. On March 31, 1975, KQED reported the suicide of a prisoner in the Greystone portion of the Santa Rita jail. The report included a statement by a psychiatrist that the conditions at the Greystone facility were responsible for the illnesses of his patient-prisoners there, and a statement from petitioner denying that prison conditions were responsible for the prisoners' illnesses. 10 KQED requested permission to inspect and take pictures within the Greystone facility. After permission was refused, KQED and the Alameda and Oakland branches of the National Association for the Advancement of Colored People (NAACP) filed suit under 42 U.S.C. § 1983. They alleged that petitioner had violated the First Amendment by refusing to permit media access and failing to provide any effective means by which the public could be informed of conditions prevailing in the Greystone facility or learn of the prisoners' grievances. Public access to such information was essential, they asserted, in order for NAACP members to participate in the public debate on jail conditions in Alameda County. They further asserted that television coverage of the conditions in the cells and facilities was the most effective way of informing the public of prison conditions. 11 The complaint requested a preliminary and permanent injunction to prevent petitioner from "excluding KQED news personnel from the Greystone cells and Santa Rita facilities and generally preventing full and accurate news coverage of the conditions prevailing therein." On June 17, 1975, when the complaint was filed, there appears to have been no formal policy regarding public access to the Santa Rita jail. However, according to petitioner, he had been in the process of planning a program of regular monthly tours since he took office six months earlier. On July 8, 1975, he announced the program and invited all interested persons to make arrangements for the regular public tours. News media were given notice in advance of the public and presumably could have made early reservations. 12 Six monthly tours were planned and funded by the county at an estimated cost of $1,800. The first six scheduled tours were filled within a week after the July 8 announcement.1 A KQED reporter and several other reporters were on the first tour on July 14, 1975. 13 Each tour was limited to 25 persons and permitted only limited access to the jail. The tours did not include the disciplinary cells or the portions of the jail known as "Little Greystone," the scene of alleged rapes, beatings, and adverse physical conditions. Photographs of some parts of the jail were made available, but no cameras or tape recorders were allowed on the tours. Those on the tours were not permitted to interview inmates, and inmates were generally removed from view. 14 In support of the request for a preliminary injunction, respondents presented testimony and affidavits stating that other penal complexes had permitted media interviews of inmates and substantial media access without experiencing significant security or administrative problems. They contended that the monthly public tours at Santa Rita failed to provide adequate access to the jail for two reasons: (a) once the scheduled tours had been filled, media representatives who had not signed up for them had no access and were unable to cover newsworthy events at the jail; (b) the prohibition on photography and tape recordings, the exclusion of portions of the jail from the tours, and the practice of keeping inmates generally removed from view substantially reduced the usefulness of the tours to the media. 15 In response, petitioner admitted that Santa Rita had never experimented with permitting media access beyond that already allowed; he did not claim that disruption had been caused by media access to other institutions. He asserted, however, that unregulated access by the media would infringe inmate privacy,2 and tend to create "jail celebrities," who in turn tend to generate internal problems and undermine jail security. He also contended that unscheduled media tours would disrupt jail operations. 16 Petitioner filed an affidavit noting the various means by which information concerning the jail could reach the public. Attached to the affidavit were the current prison mail, visitation, and phone call regulations. The regulations allowed inmates to send an unlimited number of letters to judges, attorneys, elected officials, the Attorney General, petitioner, jail officials, or probation officers, all of which could be sealed prior to mailing. Other letters were subject to inspection for contraband but the regulations provided that no inmate mail would be read. 17 With few exceptions,3 all persons, including representatives of the media, who knew a prisoner could visit him. Media reporters could interview inmates awaiting trial with the consent of the inmate, his attorney, the district attorney, and the court. Social services officers were permitted to contact "relatives, community agencies, employers, etc.," by phone to assist in counseling inmates with vocational, educational, or personal problems. Maximum-security inmates were free to make unmonitored collect telephone calls from designated areas of the jail without limit. 18 After considering the testimony, affidavits, and documentary evidence presented by the parties, the District Court preliminarily enjoined petitioner from denying KQED news personnel and "responsible representatives" of the news media access to the Santa Rita facilities, including Greystone, "at reasonable times and hours" and "from preventing KQED news personnel and responsible representatives of the news media from utilizing photographic and sound equipment or from utilizing inmate interviews in providing full and accurate coverage of the Santa Rita facilities." The District Court rejected petitioner's contention that the media policy then in effect was necessary to protect inmate privacy or minimize security and administrative problems. It found that the testimony of officials involved with other jails indicated that a "more flexible press policy at Santa Rita [was] both desirable and attainable." The District Court concluded that the respondents had "demonstrated irreparable injury, absence of an adequate remedy at law, probability of success on the merits, a favorable public interest, and a balance of hardships" in their favor. 19 On interlocutory appeal from the District Court's order, petitioner invoked Pell v. Procunier, 417 U.S. 817, 834, 94 S.Ct. 2800, 2810, 41 L.Ed.2d 495 (1974), where this Court held that "newsmen have no constitutional right of access to prisons or their inmates beyond that afforded to the general public." He contended that the District Court had departed from Pell and abused its discretion because it had ordered that he give the media greater access to the jail than he gave to the general public. The Court of Appeals rejected petitioner's argument that Pell and Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974), were controlling. It concluded, albeit in three separate opinions,4 that the public and the media had a First and Fourteenth Amendment right of access to prisons and jails, and sustained the District Court's order. II 20 Notwithstanding our holding in Pell v. Procunier, supra, respondents assert that the right recognized by the Court of Appeals flows logically from our decisions construing the First Amendment. They argue that there is a constitutionally guaranteed right to gather news under Pell v. Procunier, supra, 417 U.S., at 835, 94 S.Ct., at 2810, and Branzburg v. Hayes, 408 U.S. 665, 681, 707, 92 S.Ct. 2646, 2656-2669, 33 L.Ed.2d 626 (1972). From the right to gather news and the right to receive information, they argue for an implied special right of access to government-controlled sources of information. This right, they contend, compels access as a constitutional matter. Respondents suggest further support for this implicit First Amendment right in the language of Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660 (1936), and Mills v. Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966), which notes the importance of an informed public as a safeguard against "misgovernment" and the crucial role of the media in providing information. Respondents contend that public access to penal institutions is necessary to prevent officials from concealing prison conditions from the voters and impairing the public's right to discuss and criticize the prison system and its administration. III 21 We can agree with many of the respondents' generalized assertions; conditions in jails and prisons are clearly matters "of great public importance." Pell v. Procunier, supra, 417 U.S., at 830 n. 7, 94 S.Ct., at 2808 n. 7. Penal facilities are public institutions which require large amounts of public funds, and their mission is crucial in our criminal justice system. Each person placed in prison becomes, in effect, a ward of the state for whom society assumes broad responsibility. It is equally true that with greater information, the public can more intelligently form opinions about prison conditions. Beyond question, the role of the media is important; acting as the "eyes and ears" of the public, they can be a powerful and constructive force, contributing to remedial action in the conduct of public business. They have served that function since the beginning of the Republic, but like all other components of our society media representatives are subject to limits. 22 The media are not a substitute for or an adjunct of government and, like the courts, they are "ill equipped" to deal with problems of prison administration. Cf. Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). We must not confuse the role of the media with that of government; each has special, crucial functions, each complementing—and sometimes conflicting with—the other. 23 The public importance of conditions in penal facilities and the media's role of providing information afford no basis for reading into the Constitution a right of the public or the media to enter these institutions, with camera equipment, and take moving and still pictures of inmates for broadcast purposes. This Court has never intimated a First Amendment guarantee of a right of access to all sources of information within government control. Nor does the rationale of the decisions upon which respondents rely lead to the implication of such a right. 24 Grosjean v. American Press Co., supra, and Mills v. Alabama, supra, emphasized the importance of informed public opinion and the traditional role of a free press as a source of public information. But an analysis of those cases reveals that the Court was concerned with the freedom of the media to communicate information once it is obtained; neith r case intimated that the Constitution compels the government to provide the media with information or access to it on demand. Grosjean involved a challenge to a state tax on advertising revenues of newspapers, the "plain purpose" of which was to penalize the publishers and curtail the publication of a selected group of newspapers. 297 U.S., at 251, 56 S.Ct., at 449. The Court summarized the familiar but important history of the attempts to prevent criticism of the Crown in England by the infamous licensing requirements and special taxes on the press, id., at 245-247, 56 S.Ct., at 447 and concluded that the First Amendment had been designed to prevent similar restrictions or any other "form of previous restraint upon printed publications, or their circulation." Id., at 249, 56 S.Ct., at 449.5 25 In discussing the importance of an "untrammeled press," the Court in Grosjean readily acknowledged the need for "informed public opinion" as a restraint upon misgovernment. 297 U.S., at 250, 56 S.Ct., at 449. It also criticized the tax at issue because it limited "the circulation of information to which the public [was] entitled." Ibid. But nothing in the Court's holding implied a special privilege of access to information as distinguished from a right to publish information which has been obtained; Grosjean dealt only with government attempts to burden and restrain a newspaper's communication with the public. The reference to a public entitlement to information meant no more than that the government cannot restrain communication of whatever information the media acquire—and which they elect to reveal. Cf. Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 838, 98 S.Ct. 1535, 1541, 56 L.Ed.2d 1 (1978). 26 Mills involved a statute making it a crime to publish an editorial about election issues on election day. In striking down the statute, the Court noted that "a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs," 384 U.S., at 218, 86 S.Ct., at 1437. The Court also discussed the role of the media "as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve." Id., at 219, 86 S.Ct., at 1437. As in Grosjean, however, the Court did not remotely imply a constitutional right guaranteeing anyone access to government information beyond that open to the public generally. 27 Branzburg v. Hayes, supra, offers even less support for the respondents' position. Its observation, in dictum, that "news gathering is not without its First Amendment protections," 408 U.S., at 707, 92 S.Ct., at 2670, in no sense implied a constitutional right of access to news sources. That observation must be read in context; it was in response to the contention that forcing a reporter to disclose to a grand jury information received in confidence would violate the First Amendment by deterring news sources from communicating information. Id., at 680, 92 S.Ct., at 633. There is an undoubted right to gather news "from any source by means within the law," id., at 681-682, 92 S.Ct., at 2657, but that affords no basis for the claim that the First Amendment compels others—private persons or governments—to supply information. 28 That the Court assumed in Branzburg that there is no First Amendment right of access to information is manifest from its tatements that 29 "the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally," id., at 684, 92 S.Ct., at 2658. 30 and that 31 "[n]ewsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded," id., at 684-685, 92 S.Ct., at 2658. 32 Pell v. Procunier, and Saxbe v. Washington Post Co., also assumed that there is no constitutional right of access such as the Court of Appeals conceived. In those cases the Court declared, explicitly and without reservation, that the media have "no constitutional right of access to prisons or their inmates beyond that afforded the general public," Pell, 417 U.S., at 834, 94 S.Ct., at 2810, Saxbe, 417 U.S., at 850, 94 S.Ct., at 2815, and on that premise the Court sustained prison regulations that prevented media interviews with inmates. 33 The fact that the Court relied upon Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), in both Branzburg, 408 U.S., at 684 n. 22, 92 S.Ct., at 2658, n. 22, and Pell, supra, 417 U.S., at 834 n. 9, 94 S.Ct., at 2810, n. 9, further negates any notion that the First Amendment confers a right of access to news sources. The appellant in Zemel made essentially the same argument that respondents advance here. He contended that the ban on travel to Cuba, then in effect, interfered with his First Amendment right to acquaint himself with the effects of our Government's foreign and domestic policies and the conditions in Cuba that might affect those policies. Mr. Chief Justice Warren, writing for the Court, flatly rejected the contention that, there was a First Amendment right at stake, stating: 34 "There are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen's opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right. The right to speak and publish does not carry with it the unrestrained right to gather information." 381 U.S., at 16-17, 85 S.Ct., at 1281. (Emphasis added.) 35 The right to receive ideas and information is not the issue in this case. See, e. g., Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Procunier v. Martinez, 416 U.S., at 408-409, 94 S.Ct., at 1808, 1809; Kleindienst v. Mandel, 408 U.S. 753, 762-763, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683 (1972). The issue is a claimed special privilege of access which the Court rejected in Pell and Saxbe, a right which is not essential to guarantee the freedom to communicate or publish. IV 36 The respondents' argument is flawed, not only because it lacks precedential support and is contrary to statements in this Court's opinions, but also because it invites the Court to involve itself in what is clearly a legislative task which the Constitution has left to the political processes. Whether the government should open penal institutions in the manner sought by respondents is a question of policy which a legislative body might appropriately resolve one way or the other. 37 A number of alternatives are available to prevent problems in penal facilities from escaping public attention. The early penal reform movements in this country and England gained impetus as a result of reports from citizens and visiting committees who volunteered or received commissions to visit penal institutions and make reports. See T. Eriksson, The Reformers 32-42, 69 (Djurklou translation 1976); W. Crawford, Report on the Penitentiaries of the United States vii-viii, xiii-xv, 10-11, App. 9 (1969 ed.); B. McKelvey, American Prisons 52-56, 193 (1936). Citizen task forces and prison v sitation committees continue to play an important role in keeping the public informed on deficiencies of prison systems and need for reforms.6 Grand juries, with the potent subpoena power—not available to the media traditionally concern themselves with conditions in public institutions; a prosecutor or judge may initiate similar inquiries, and the legislative power embraces an arsenal of weapons for inquiry relating to tax-supported institutions. In each case, these public bodies are generally compelled to publish their findings and, if they default, the power of the media is always available to generate public pressure for disclosure. But the choice as to the most effective and appropriate method is a policy decision to be resolved by legislative decision.7 We must not confuse what is "good," "desirable," or "expedient" with what is constitutionally commanded by the First Amendment. To do so is to trivialize constitutional adjudication. 38 Unarticulated but implicit in the assertion that media access to the jail is essential for informed public debate on jail conditions is the assumption that media personnel are the best qualified persons for the task of discovering malfeasance in public institutions. But that assumption finds no support in the decisions of this Court or the First Amendment. Editors and newsmen who inspect a jail may decide to publish or not to publish what information they acquire. Cf. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 124, 93 S.Ct. 2080, 2097, 36 L.Ed.2d 772 (1973); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 41 L.Ed.2d 730, 94 S.Ct. 2831 (1974); Note, The Rights of the Public and the Press To Gather Information, 87 Harv.L.Rev. 1505, 1508, 1513 (1974). Public bodies and public officers, on the other hand, may be coerced by public opinion to disclose what they might prefer to conceal. No comparable pressures are available to anyone to compel publication by the media of what they might prefer not to make known. 39 There is no discernible basis for a constitutional duty to disclose, or for standards governing disclosure of or access to information. Because the Constitution affords no guidelines, absent statutory standards, hundreds of judges would, under the Court of Appeals' approach, be at large to fashion ad hoc standards, in individual cases, according to their own ideas of what seems "desirable" or expedient." We, therefore, reject the Court of Appeals' conclusory assertion that the public and the media have a First Amendment right to government information regarding the conditions of jails and their inmates and presumably all other public facilities such as hospitals and mental institutions. 40 "There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. [Citing Pell v. Procunier, supra.] The public's interest in knowing about its government is protected by the quarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act. 41 "The Constitution, in other words, establishes the contest, not its resolution. Congress may provide a resolution, at least in some instances, through carefully drawn legislation. For the rest, we must rely, as so often in our system we must, on the tug and pull of the political forces in American society." Stewart, "Or of the Press," 26 Hastings L.J. 631, 636 (1975). 42 Petitioner cannot prevent respondents from learning about jail conditions in a variety of ways, albeit not as conveniently as they might prefer. Respondents have a First Amendment right to receive letters from inmates criticizing jail officials and reporting on conditions. See Procunier v. Martinez, 416 U.S., at 413-418, 94 S.Ct., at 1811. Respondents are free to interview those who render the legal assistance to which inmates are entitled. See id., at 419, 94 S.Ct., at 1814. They are also free to seek out former inmates, visitors to the prison, public officials, and institutional personnel, as they sought out the complaining psychiatrist here. 43 Moreover, California statutes currently provide for a prison Board of Corrections that has the authority to inspect jails and prisons and must provide a public report at regular intervals. Cal. Penal Code Ann. §§ 6031-6031.2 (West Supp. 1978). Health inspectors are required to inspect prisons and provide reports to a number of officials, including the State Attorney General and the Board of Corrections. Cal. Health & Safety Code Ann. § 459 (West 1970). Fire officials are also required to inspect prisons. 15 Cal.Admin.Code § 1025 (1976). Following the reports of the suicide at the jail involved here, the County Board of Supervisors called for a report from the County Administrator; held a public hearing on the report, which was open to the media; and called for further reports when the initial report failed to describe the conditions in the cells in the Greystone portion of the jail. 44 Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control. Under our holdings in Pell v. Procunier, supra, and Saxbe v. Washing- ton Post Co., supra, until the political branches decree otherwise, as they are free to do, the media have no special right of access to the Alameda County Jail different from or greater than that accorded the public generally. 45 The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings. 46 Reversed and remanded. 47 Mr. Justice MARSHALL and Mr. Justice BLACKMUN took no part in the consideration or decision of this case. 48 Mr. Justice STEWART, concurring in the judgment. 49 I agree that the preliminary injunction issued against the petitioner was unwarranted, and therefore concur in the judgment. In my view, however, KQED was entitled to injunctive relief of more limited scope. 50 The First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by government, nor do they guarantee the press any basic right of access superior to that of the public generally. The Constitution does no more than assure the public and the press equal access once government has opened its doors.* Accordingly, I agree substantially with what the opinion of The Chief Justice has to say on that score. 51 We part company, however, in applying these abstractions to the facts of this case. Whereas he appears to view "equal access" as meaning access that is identical in all respects, I believe that the concept of equal access must be accorded more flexibility in order to accommodate the practical distinctions between the press and the general public. 52 When on assignment, a journalist does not tour a jail simply for his own edification. He is there to gather information to b passed on to others, and his mission is protected by the Constitution for very specific reasons. "Enlightened choice by an informed citizenry is the basic ideal upon which an open society is premised . . . ." Branzburg v. Hayes, 408 U.S. 665, 726, 92 S.Ct. 2646, 2672, 33 L.Ed.2d 626 (dissenting opinion). Our society depends heavily on the press for that enlightenment. Though not without its lapses, the press "has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences . . . ." Estes v. Texas, 381 U.S. 532, 539, 85 S.Ct. 1628, 1631, 14 L.Ed.2d 543. See Mills v. Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484. Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660. 53 That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively. A person touring Santa Rita jail can grasp its reality with his own eyes and ears. But if a television reporter is to convey the jail's sights and sounds to those who cannot personally visit the place, he must use cameras and sound equipment. In short, terms of access that are reasonably imposed on individual members of the public may, if they impede effective reporting without sufficient justification, be unreasonable as applied to journalists who are there to convey to the general public what the visitors see. 54 Under these principles, KQED was clearly entitled to some form of preliminary injunctive relief. At the time of the District Court's decision, members of the public were permitted to visit most parts of the Santa Rita jail, and the First and Fourteenth Amendments required the Sheriff to give members of the press effective access to the same areas. The Sheriff evidently assumed that he could fulfill this obligation simply by allowing reporters to sign up for tours on the same terms as the public. I think he was mistaken in this assumption, as a matter of constitutional law. 55 The District Court found that the press required access to the jail on a more flexible and frequent basis than scheduled monthly tours if it was to keep the public informed. By leaving the "specific methods of implementing such a policy . . . [to] Sheriff Houchins," the court concluded that the press could be allowed access to the jail "at reasonable times and hours" without causing undue disruption. The District Court also found that the media required cameras and recording equipment for effective presentation to the viewing public of the conditions at the jail seen by individual visitors, and that their use could be kept consistent with institutional needs. These elements of the court's order were both sanctioned by the Constitution and amply supported by the record. 56 In two respects, however, the District Court's preliminary injunction was overbroad. It ordered the Sheriff to permit reporters into the Little Greystone facility and it required him to let them interview randomly encountered inmates. In both these respects, the injunction gave the press access to areas and sources of information from which persons on the public tours had been excluded, and thus enlarged the scope of what the Sheriff and Supervisors had opened to public view. The District Court erred in concluding that the First and Fourteenth Amendments compelled this broader access for the press. 57 Because the preliminary injunction exceeded the requirements of the Constitution in these respects. I agree that the judgment of the Court of Appeals affirming the District Court's order must be reversed. But I would not foreclose the possibility of further relief for KQED on remand. In my vie , the availability and scope of future permanent injunctive relief must depend upon the extent of access then permitted the public, and the decree must be framed to accommodate equitably the constitutional role of the press and the institutional requirements of the jail. 58 Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice POWELL join, dissenting. 59 The Court holds that the scope of press access to the Santa Rita jail required by the preliminary injunction issued against petitioner is inconsistent with the holding in Pell v. Procunier, 417 U.S. 817, 834, 94 S.Ct. 2800, 2810, 41 L.Ed.2d 495, that "newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public" and therefore the injunction was an abuse of the District Court's discretion. I respectfully disagree. 60 Respondent KQED, Inc., has televised a number of programs about prison conditions and prison inmates, and its reporters have been granted access to various correctional facilities in the San Francisco Bay area, including San Quentin State Prison, Soledad Prison, and the San Francisco County Jails at San Bruno and San Francisco, to prepare program material. They have taken their cameras and recording equipment inside the walls of those institutions and interviewed inmates. No disturbances or other problems have occurred on those occasions. 61 KQED has also reported newsworthy events involving the Alameda County Jail in Santa Rita, including a 1972 newscast reporting a decision of the United States District Court finding that the "shocking and debasing conditions which prevailed [at Santa Rita] constituted cruel and unusual punishment for man or beast as a matter of law."1 On March 31, 1975, KQED reported the suicide of a prisoner in the Greystone portion of the Santa Rita jail. That program also carried a statement by a psychiatrist assigned to Santa Rita to the effect that conditions in the Greystone facility were responsible for illnesses of inmates.2 Petitioner's disagreement with that conclusion was reported on the same newscast. 62 KQED requested permission to visit and photograph the area of the jail where the suicide occurred. Petitioner refused, advising KQED that it was his policy not to permit any access to the jail by the news media. This policy was also invoked by petitioner to deny subsequent requests for access to the jail in order to cover news stories about conditions and alleged incidents within the facility.3 Except for a carefully supervised tour in 1972, the news media were completely excluded from the inner portions of the Santa Rita jail until after this action was commenced.4 Moreover, the prison rules provided that all outgoing mail, except letters to judges and lawyers, would be inspected; the rules also prohibited any mention in outgoing correspondence of the names or actions of any correctional officers. 63 Respondents KQED, and the Alameda and Oakland branches of the National Association for the Advancement of Colored People,5 filed their complaint for equitable relief on June 17, 1975. The complaint alleged that petitioner had provided no "means by which the public may be informed of conditions prevailing in Greystone or by which priso ers' grievances may reach the public." It further alleged that petitioner's policy of "denying KQED and the public" access to the jail facility violated the First and Fourteenth Amendments to the Constitution and requested the court to enjoin petitioner "from excluding KQED news personnel from the Greystone cells and Santa Rita facilities and generally preventing full and accurate news coverage of the conditions prevailing therein." App. 6-7. With the complaint, respondents filed a motion for a preliminary injunction, supported by affidavits of representatives of the news media, the Sheriff of San Francisco County, and the attorney for respondents. The affidavits of the news media representatives and the Sheriff described the news coverage in other penal institutions and uniformly expressed the opinion that such coverage had no harmful consequences and in fact served a significant public purpose.6 64 In a letter to the County Board of Supervisors dated two days after this suit was instituted, petitioner proposed a pilot public tour program. He suggested monthly tours for 25 persons, with the first tentatively scheduled for July 14. The tours, however, would not include the cell portions of Greystone and would not allow any use of cameras or communication with inmates. The Board approved six such tours. Petitioner then filed his answer and supporting affidavit explaining why he had refused KQED access to the jail and identifying the recent changes in policy regarding access to the jail and communication between inmates and persons on the outside. Petitioner stated that if KQED's request had been granted, he would have felt obligated to honor similar requests from other representatives of the press and this could have disrupted mealtimes, exercise times, visiting times, and court appearances of inmates.7 He pointed out that the mail regulations had recently been amended to delete a prohibition against mentioning the names or actions of any correctional officers. With respect to the scope of the proposed tours, petitioner explained that the use of cameras would be prohibited because it would not be possible to prevent 25 persons with cameras from photographing inmates and security operations. Moreover, communication with inmates would not be permitted because of excessive time consumption, "problems with control" of inmates and visitors, and a belief "that interviewing would be excessively unwieldy."8 65 An evidentiary hearing on the motion for a preliminary injunction was held after the first four guided tours had taken place. The evidence revealed the inadequacy of the tours as a means of obtaining information about the inmates and their conditions of confinement for transmission to the public. The tours failed to enter certain areas of the jail.9 They afforded no opportunity to photograph conditions within the facility, and the photographs which the county offered for sale to tour visitors omitted certain jail characteristics, such as catwalks above the cells from which guards can observe the inmates.10 The tours provided no opportunity to question randomly encountered inmates about jail conditions. Indeed, to the extent possible, inmates were kept out of sight during the tour, preventing the tour visitors from obtaining a realistic picture of the conditions of confinement within the jail. In addition, the fixed scheduling of the tours prevented coverage of newsworthy events at the jail. 66 Of most importance, all of the remaining tours were completely booked, and there was no assurance that any tour would be conducted after December 1975. The District Court found that KQED had no access to the jail and that the broad restraints on access were not required by legitimate penological interests.11 67 The District Court thereafter issued a preliminary injunction, enjoining petitioner "from denying KQED news personnel and responsible representatives of the news media access to the Santa Rita facilities, including Greystone, at reasonable times and hours," r from preventing such representatives "from utilizing photographic and sound equipment or from utilizing inmate interviews in providing full and accurate coverage of the Santa Rita facilities." The court, however, recognized that petitioner should determine the specific means of implementing the order and, in any event, should retain the right to deny access when jail tensions or other special circumstances require exclusion. 68 The United States Court of Appeals for the Ninth Circuit affirmed, holding that the District Court did not abuse its discretion in framing the preliminary injunction under review.12 Mr. Justice REHNQUIST, acting as Circuit Justice, stayed the mandate and in his opinion on the stay application fairly stated the legal issue we subsequently granted certiorari to decide: 69 "The legal issue to be raised by applicant's petition for certiorari seems quite clear. If the 'no greater access' doctrine of Pell [v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495,] and Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514,] applies to this case, the Court of Appeals and the District Court were wrong, and the injunction was an abuse of discretion. If, on the other hand, the holding in Pell is to be viewed as impliedly limited to the situation where there already existed substantial press and public access to the prison, then Pell and Saxbe are not necessarily dispositive, and review by this Court of the propriety of the injunction, in light of those cases, would be appropriate, although not necessary." 429 U.S. 1341, 1344, 97 S.Ct. 773, 775, 50 L.Ed.2d 733. 70 For two reasons, which will be discussed separately, the decisions in Pell and Saxbe do not control the propriety of the District Court's preliminary injunction. First, the unconstitutionality of petitioner's policies which gave rise to this litigation does not rest on the premise that the press has a greater right of access to information regarding prison conditions than do other members of the public. Second, relief tailored to the needs of the press may properly be awarded to a representative of the press which is successful in proving that it has been harmed by a constitutional violation and need not await the grant of relief to members of the general public who may also have been injured by petitioner's unconstitutional access policy but have not yet sought to vindicate their rights. 71 * This litigation grew out of petitioner's refusal to allow representatives of the press access to the inner portions of the Santa Rita facility. Following those refusals and the institution of this suit, certain remedial action was taken by petitioner. The mail censorship was relaxed and an experimental tour program was initiated. As a preliminary matter, therefore, it is necessary to consider the relevance of the actions after March 31, 1975, to the question whether a constitutional violation had occurred. 72 It is well settled that a defendant's corrective action in anticipation of litigation or following commencement of suit does not deprive the court of power to decide whether the previous course of conduct was unlawful. See United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 897, 97 L.Ed. 1303, and cases cited.13 The propriety of the court's exercise of that power in this case is apparent. When this suit was filed, there were no public tours. Petitioner enforced a policy of virtually total exclusion of both the public and the press from those areas within the Santa Rita jail where the inmates were confined. At that time petitioner also enforced a policy of reading all inmate correspondence addressed to persons other than lawyers and judges and censoring those portions that related to the conduct of the guards who controlled their daily existence. Prison policy as well as prison walls significantly abridged the opportunities for communication of information about the onditions of confinement in the Santa Rita facility to the public.14 Therefore, even if there would not have been any constitutional violation had the access policies adopted by petitioner following commencement of this litigation been in effect all along, it was appropriate for the District Court to decide whether the restrictive rules in effect when KQED first requested access were constitutional. 73 In Pell v. Procunier, 417 U.S., at 834, 94 S.Ct., at 2810, the Court stated that "newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public." But the Court has never intimated that a nondiscriminatory policy of excluding entirely both the public and the press from access to information about prison conditions would avoid constitutional scrutiny.15 Indeed, Pell itself strongly suggests the contrar . 74 In that case, representatives of the press claimed the right to interview specifically designated inmates. In evaluating this claim, the Court did not simply inquire whether prison officials allowed members of the general public to conduct such interviews. Rather, it canvassed the opportunities already available for both the public and the press to acquire information regarding the prison and its inmates. And the Court found that the policy of prohibiting interviews with inmates specifically designated by the press was "not part of an attempt by the State to conceal the conditions in its prisons." Id., at 830, 94 S.Ct., at 2808. The challenged restriction on access, which was imposed only after experience revealed that such interviews posed disciplinary problems, was an isolated limitation on the efforts of the press to gather information about those conditions. It was against the background of a record which demonstrated that both the press and the general public were "accorded full opportunities to observe prison conditions,"16 that the Court considered the constitutionality of the single restraint on access challenged in Pell. 75 The decision in Pell, therefore, does not imply that a state policy of concealing prison conditions from the press, or a policy denying the press any opportunity to observe those conditions, could have been justified simply by pointing to like concealment from, and denial to, the general public. If that were not true, there would have been no need to emphasize the substantial press and public access reflected in the record of that case.17 What Pell does indicate is that the question whether respondents established a probability of prevailing on their constitutional claim is inseparable from the question whether petitioner's policies unduly restricted the opportunities of the general public to learn about the conditions of confinement in Santa Rita jail. As in Pell, in assessing its adequacy, the total access of the public and the press must be considered. 76 Here, the broad restraints on access to information regarding operation of the jail that prevailed on the date this suit was instituted are plainly disclosed by the record. The public and the press had consistently been denied any access to those portions of the Santa Rita facility where inmates were confined and there had been excessive censorship of inmate correspondence. Petitioner's no-access policy, modified only in the wake of respondents' resort to the courts, could survive constitutional scrutiny only if the Constitution affords no protection to the public's right to be informed about conditions within those public institutions where some of its members are confined because they have been charged with or found guilty of criminal offenses. II 77 The preservation of a full and free flow of information to the general public has long been recognized as a core objective of the First Amendment to the Constitution.18 It is for this reason that the First Amendment protects not only the dissemination but also the receipt of information and ideas. See,e. g., Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 756, 96 S.Ct. 1817, 1822, 48 L.Ed.2d 346; Procunier v. Martinez, 416 U.S. 396, 408-409, 94 S.Ct. 1800, 1808-1809, 40 L.Ed.2d 224; Kleindienst v. Mandel, 408 U.S. 753, 762-763, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683.19 Thus, in Procunier v. Martinez, supra, the Court invalidated prison regulations authorizing excessive censorship of outgoing inmate correspondence because such censorship abridged the rights of the intended recipients. See also Morales v. Schmidt, 489 F.2d 1335, 1346 n. 8 (CA7 1973). So here, petitioner's prelitigation prohibition on mentioning the conduct of jail officers in outgoing correspondence must be considered an impingement on the noninmate correspondent's interest in receiving the intended communication. 78 In addition to safeguarding the right of one individual to receive what another elects to communicate, the First Amendment serves an essential societal function.20 Our system of self-government assumes the existence of an informed citizenry.21 As Madison wrote: 79 "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives." 9 Writings of James Madison 103 (G. Hunt ed. 1910). 80 It is not sufficient, therefore, that the channels of communication be free of governmental restraints. Without some protection for the acquisition of information about the operation of public institutions such as prisons by the public at large, the process of self-governance contemplated by the Framers would be stripped of its substance.22 81 For that reason information gathering is entitled to some measure of constitutional protection. See, e. g., Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626; Pell v. Procunier, 417 U.S., at 833, 94 S.Ct. at 2809.23 As this Court's decisions clearly indicate, however, this protection is not for the private benefit of those who might qualif as representatives of the "press" but to insure that the citizens are fully informed regarding matters of public interest and importance. 82 In Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 representatives of the "press" challenged a state tax on the advertising revenues of newspapers. In the Court's words, the issue raised by the tax went "to the heart of the natural right of the members of an organized society, united for their common good, to impart and acquire information about their common interests." Id., at 243, 56 S.Ct., at 446. The opinion described the long struggle in England against the stamp tax and tax on advertisements—the so-called "taxes on knowledge": 83 "[I]n the adoption of the [taxes] the dominant and controlling aim was to prevent, or curtail the opportunity for, the acquisition of knowledge by the people in respect of their governmental affairs. . . . The aim of the struggle [against those taxes] was . . . to establish and preserve the right of the English people to full information in respect of the doings or misdoings of their government. Upon the correctness of this conclusion the very characterization of the exactions as 'taxes on knowledge' sheds a flood of corroborative light. In the ultimate, an informed and enlightened public opinion was the thing at stake." Id., at 247, 56 S.Ct. at 448. 84 Noting the familiarity of the Framers with this struggle, the Court held: 85 "[S]ince informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern. The tax here involved is bad . . . because, in light of its history and of its present setting, it is seen to be a deliberate and calculated device . . . to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties." Id., at 250, 56 S.Ct., at 449. 86 A recognition that the "underlying right is the right of the public generally"24 is also implicit in the doctrine that "newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public." Pell v. Procunier, supra, 417 U.S., at 834, 94 S.Ct., at 2810. In Pell it was unnecessary to consider the extent of the public's right of access to information regarding the prison and its inmates in order to adjudicate the press claim to a particular form of access, since the record demonstrated that the flow of information to the public, both directly and through the press, was adequate to survive constitutional challenge; institutional considerations justified denying the single, additional mode of access sought by the press in that case. 87 Here, in contrast, the restrictions on access to the inner portions of the Santa Rita jail that existed on the date this litigation commenced concealed from the general public the conditions of confinement within the facility. The question is whether petitioner's policies, which cut off the flow of information at its source, abridged the public's right to be informed about those conditions. 88 The answer to that question does not depend upon the degree of public disclosure which should attend the operation of most governmental activity. Such matters involve questions of policy which generally must be resolved by the political branches f government.25 Moreover, there are unquestionably occasions when governmental activity may properly be carried on in complete secrecy. For example, the public and the press are commonly excluded from "grand jury proceedings, our own conferences [and] the meetings of other official bodies gathered in executive session . . . ." Branzburg v. Hayes, 408 U.S., at 684, 92 S.Ct., at 2658; Pell v. Procunier, 417 U.S., at 834, 94 S.Ct., at 2810.26 In addition, some functions of government—essential to the protection of the public and indeed our country's vital interests—necessarily require a large measure of secrecy, subject to appropriate legislative oversight.27 In such situations the reasons for withholding information from the public are both apparent and legitimate. 89 In this case, however, "[r]espondents do not assert a right to force disclosure of confidential information or to invade in any way the decisionmaking processes of governmental officials."28 They simply seek an end to petitioner's policy of concealing prison conditions from the public. Those conditions are wholly without claim to confidentiality. While prison officials have an interest in the time and manner of public acquisition of information about the institutions they administer, there is no legitimate penological justification for concealing from citizens the conditions in which their fellow citizens are being confined.29 90 The reasons which militate in favor of providing special protection to the flow of information to the public about prisons relate to the unique function they perform in a democratic society. Not only are they public institutions, financed with public funds and administered by public servants,30 they are an integral component of the criminal justice system. The citizens confined therein are temporarily, and sometimes permanently, deprived of their liberty as a result of a trial which must conform to the dictates of the Constitution. By express command of the Sixth Amendment the proceeding must be a "public trial."31 It is important not only that the trial itself be fair, but also that the community at large have confidence in the integrity of the proceeding.32 That public interest survives the judgment of conviction and appropriately carries over to an interest in how the convicted person is treated during his period of punishment and hoped-for rehabilitation. While a ward of the State and subject to its stern discipline, he retains constitutional protections against cruel and unusual punishment, see, e. g., Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, a protection which may derive more practical support from access to information about prisons by the public than by occasional litigation in a busy court.33 91 Some inmates—in Santa Rita, a substantial number—are pretrial detainees. Though confined pending trial, they have not been convicted of an offense against society and are entitled to the presumption of innocence. Certain penological objectives, i. e., punishment, deterrence, and rehabilitation, whi h are legitimate in regard to convicted prisoners, are inapplicable to pretrial detainees.34 Society has a special interest in ensuring that unconvicted citizens are treated in accord with their status. 92 In this case, the record demonstrates that both the public and the press had been consistently denied any access to the inner portions of the Santa Rita jail, that there had been excessive censorship of inmate correspondence, and that there was no valid justification for these broad restraints on the flow of information. An affirmative answer to the question whether respondents established a likelihood of prevailing on the merits did not depend, in final analysis, on any right of the press to special treatment beyond that accorded the public at large. Rather, the probable existence of a constitutional violation rested upon the special importance of allowing a democratic community access to knowledge about how its servants were treating some of its members who have been committed to their custody. An official prison policy of concealing such knowledge from the public by arbitrarily cutting off the flow of information at its source abridges the freedom of speech and of the press protected by the First and Fourteenth Amendments to the Constitution.35 III 93 The preliminary injunction entered by the District Court granted relief to KQED without providing any specific remedy for other members of the public. Moreover it imposed duties on petitioner that may not be required by the Constitution itself. The injunction was not an abuse of discretion for either of these reasons. 94 If a litigant can prove that he has suffered specific harm from the application of an unconstitutional policy, it is entirely proper for a court to grant relief tailored to his needs without attempting to redress all the mischief that the policy may have worked on others. Though the public and the press have an equal right to receive information and ideas, different methods of remedying a violation of that right may sometimes be needed to accommodate the special concerns of the one or the other. Preliminary relief could therefore appropriately be awarded to KQED on the basis of its proof of how it was affected by the challenged policy without also granting specific relief to the general public. Indeed, since our adversary system contemplates the adjudication of specific controversies between specific litigants, it would have been improper for the District Court to attempt to provide a remedy to persons who have not requested separate relief. Accordingly, even though the Constitution provides the press with no greater right of access to information than that possessed by the public at large, a preliminary injunction is not invalid simply because it awards special relief to a successful litigant which is a representative of the press.36 95 Nor is there anything novel about injunctive relief which goes beyond a mere prohibition against repetition of previous unlawful conduct. In situations which are both numerous and varied the chancellor has required a wrongdoer to take affirmative steps to eliminate the effects of a violation of law even though the law itself imposes no duty to take the remedial action decreed by the court.37 It follows that if prison regulations and policies have unconstitutionally suppressed information and interfered with communication in violation of the First Amendment the District Court has the power to require at least temporarily that the channels of communication be opened more widely than the law would otherwise require in order to let relevant facts, which may have been concealed, come to light. Whether or not final relief along the lines of that preliminarily awarded in this case would be "aptly tailored to remedy the consequences of the constitutionalviolation,"Milliken v. Bradley, 433 U.S. 267, 287, 97 S.Ct. 2749, 2761, 53 L.Ed.2d 745, it is perfectly clear that the court had power to enter an injunction which was broader than a mere prohibition against illegal conduct. 96 The Court of Appeals found no reason to question the specific preliminary relief ordered by the District Court. Nor is it appropriate for this Court to review the scope of the order.38 The order was preliminary in character, and would have been subject to revision before the litigation reached a final conclusion. 97 I would affirm the judgment of the Court of Appeals. 1 According to petitioner, the initial public interest in the tours has now subsided and there is no longer a waiting list. 2 It is true that inmates lose many rights when they are lawfully confined, but they do not lose all civil rights. See, e. g., Wolff v. McDonnell, 418 U.S. 539, 555-556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974), and cases cited therein. Inmates in jails, prisons, or mental institutions retain certain fundamental rights of privacy; they are not like animals in a zoo to be filmed and photographed at will by the public or by media reporters, however "educational" the process may be for others. 3 Persons who were on parole or had been released from a state prison could not visit without the approval of the commanding officer. Persons released from the Santa Rita or the courthouse jail within a certain period of time were also required to obtain approval to visit from the commanding officer. 4 See 546 F.2d 284 (CA9 1976). 5 The Court relied upon Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-716, 51 S.Ct. 625, 630, 75 L.Ed. 1357 (1931). More recently in Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971), these concepts were reaffirmed. See also Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974). 6 See, e. g., Behind the Bars, ABA Report of Young Lawyers Section on Prison Visitation Program 1970-1975; Case, Citizen Participation: An Experiment in Prison-Community Relations, 30 Federal Probation 18, 19-21 (Dec. 1966); Final Report of the Ohio Citizens' Task Force on Corrections A28 (1971); Report of the Illinois Subcommittee on Penal Institutions of the Legislative Comm'n To Visit and Examine State Institutions (1969); Massachusetts, Governor's Task Force on Correctional Industries, Final Report (Sept. 1970); California Correctional System Study, Final Report, California Board of Corrections (July 1971). 7 The Freedom of Information Act, 5 U.S.C. § 552 (1976 ed.), for example, is the result of legislative decisions. * Forces and factors other than the Constitution must determine what government-held data are to be made available to the public. See, e. g., New York Times Co. v. United States, 403 U.S. 713, 728-730, 91 S.Ct. 2140, 29 L.Ed.2d 822 (concurring opinion). 1 See Brenneman v. Madigan, 343 F.Supp. 128, 132-133 (ND Cal.1972). Based on a personal visit to the facility, Judge Zirpoli reached the "inescapable conclusion . . . that Greystone should be razed to the ground." 2 The psychiatrist was discharged after the telecast. 3 Access was denied, for example, to cover stories of alleged gang rapes and poor physical conditions within the jail, Tr. 208, and of recent escapes from the jail, id., at 135-136. 4 A previous sheriff had conducted one "press tour" in 1972 attended by reporters and cameramen. But the facility had been "freshly scrubbed" for the tour and the reporters were forbidden to ask any questions of the inmates they encountered, App. 16-17. 5 The NAACP alleged a "special concern with conditions at . . . Santa Rita, because the prisoner population at the jail is disproportionately black [and the members of the NAACP] depend on the public media to keep them informed of such conditions so that they can meaningfully participate in the current public debate on jail conditions in Alameda County." Complaint, ¶ 3. Since no special relief was requested by or granted to the NAACP, the parties have focused on the claim of KQED. 6 The Sheriff had a master's degree in criminology from the University of California at Berkeley and 10 years' experience in law enforcement with the San Francisco Police Department. As Sheriff he had general supervision and control over the jail facilities in San Francisco. He expressed the "opinion, based on my education and experience in law enforcement and jail administration, that such programs make an important contribution to public understanding of jails and jail conditions. In my opinion jails are public institutions and the public has a right to know what is being done with their tax dollars being spent on jail facilities and programs." App. 15. 7 In contrast to the floodgate concerns expressed by petitioner, the Information Officer at San Quentin testified that after the liberalization of access rules at that institution media requests to enter the facility actually declined. Tr. 152. This testimony may suggest that the mere existence of inflexible access barriers generates a concern that conditions within the closed institution require especially close scrut ny. 8 App. 24. 9 The tour did not include Little Greystone, which was the subject of reports of beatings, rapes, and poor conditions, or the disciplinary cells. 10 There were also no photos of the women's cells, of the "safety cell," of the "disciplinary cells," or of the interior of Little Greystone. In addition, the photograph of the dayroom omits the television monitor that maintains continuous observation of the inmates and the open urinals. 11 "Sheriff Houchins admitted that because Santa Rita has never experimented with a more liberal press policy than that presently in existence, there is no record of press disturbances. Furthermore, the Sheriff has no recollection of hearing of any disruption caused by the media at other penal institutions. Nevertheless Sheriff Houchins stated that he feared that invasion of inmates' privacy, creation of jail 'celebrities,' and threats to jail security would result from a more liberal press policy. While such fears are not groundless, convincing testimony was offered that such fears can be substantially allayed. "As to the inmates' privacy, the media representatives commonly obtain written consent from those inmates who are interviewed and/or photographed, and coverage of inmates is never provided without their full agreement. As to pre-trial detainees who could be harmed by pre-trial publicity, consent can be obtained not only from such inmates but also from their counsel. Jail 'celebrities' are not likely to emerge as a result of a random interview policy. Regarding jail security, any cameras and equipment brought into the jail can be searched. While Sheriff Houchins expressed concern that photographs of electronic locking devices could be enlarged and studied in order to facilitate escape plans, he admitted that the inmates themselves can study and sketch the locking devices. Most importantly, there was substantial testimony to the effect that ground rules laid down by jail administrators, such as a ban on photographs of security devices, are consistently respected by the media. "Thus upon reviewing the evidence concerning the present media policy at Santa Rita, the Court finds the plaintiffs have demonstrated irreparable injury, absence of an adequate remedy at law, probability of success on the merits, a favorable public interest, and a balance of hardships which must be struck in plaintiffs' favor." App. 69. 12 546 F.2d 284 (1976). 13 Moreover, along with the power to decide the merits, the court's power to grant injunctive relief survives the discontinuance of illegal conduct. "It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption." United States v. Oregon Medical Soc., 343 U.S. 326, 333, 72 S.Ct. 690, 96 L.Ed. 978. When the District Court issued the preliminary injunction, there was no assurance that the experimental public tours would continue beyond the next month. Thus, it would certainly have been reasonable for the court to assume that, absent injunctive relief, the access to the inner portions of the Santa Rita facility would soon be reduced to its prelitigation level. 14 Thus, when this suit was filed, there existed no opportunity for outsiders to observe the living conditions of the inmates at Santa Rita. And the mail regulations prohibited statements about the character of the treatment of prisoners by correctional officers. I cannot agree with petitioner that the inmates' visitation and telephone privileges were reasonable alternative means of informing the public at large about conditions within Santa Rita. Neither offered an opportunity to observe those conditions. Even if a member of the general public or a representative of the press were fortunate enough to obtain the name of an inmate to visit, access to the facility would not have included the inmate's place of confinement. The jail regulations do not indicate that an inmate in the minimum-security portion of the jail may enlist the aid of Social Service officers to telephone the press or members of the general public to complain of the conditions of confinement. App. 38. Even if a maximum-security inmate may make collect telephone calls, it is unlikely that a member of the general public or representative of the press would accept the charges, especially without prior knowledge of the call's communicative purpose. Although sentenced prisoners may not be interviewed under any circumstances, pretrial detainees may, according to petitioner, be interviewed with the consent of the inmate, defense counsel, and prosecutor, and with an order from the court. Not only would such an interview take place outside the confines of the jail, but the requirement of a court order makes this a patently inadequate means of keeping the public informed about the jail and its inmates. Finally, petitioner suggests his willingness to provide the press with information regarding the release of prisoners which, according to petitioner, would permit interviews of former prisoners regarding the conditions of their recent confinement. This informal offer was apparently only made in response to respondents' lawsuit. Moreover, it too fails to afford the public any opportunity to observe the conditions of confinement. Hence, the means available at the time this suit was instituted for informing the general public about conditions in the Santa Rita jail were, as a practical matter, nonexistent. 15 In Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 1281, 14 L.Ed.2d 179, the Court said: "The right to speak and publish does not carry with it the unrestrained right to gather information." (Emphasis added.) And in Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626: "We do not question the significance of free speech, press, or assembly to the country's welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated." Both statements imply that there is a right to acquire knowledge that derives protection from the First Amendment. See id., at 728 n. 4, 92 S.Ct., at 2650 n. 4 (STEWART, J., dissenting). 16 "The Department of Corrections regularly conducts public tours through the prisons for the benefit of interested citizens. In addition, newsmen are permitted to visit both the maximum security and minimum security sections of the institutions and to stop and speak about any subject to any inmates whom they might encounter. If security considerations permit, corrections personnel will step aside to permit such interviews to be confidential. Apart from general access to all parts of the institutions, newsmen are also permitted to enter the prisons to interview inmates selected at random by the corrections officials. By the same token, if a newsman wishes to write a story on a particular prison program, he is permitted to sit in on group meetings and to interview the inmate participants." 417 U.S., at 830, 94 S.Ct., at 2808. 17 Nor would it have been necessary to note, as the Pell opinion did, the fact that the First Amendment protects the free flow of information to the public: "The constitutional guarantee of a free press 'assures the maintenance of our political system and an open society,' Time, Inc. v. Hill, 385 U.S. 374, 389, 87 S.Ct. 534, 543, 17 L.Ed.2d 456 (1967), and secures 'the paramount public interest in a free flow of information to the people concerning public officials,' Garrison v. Louisiana, 379 U.S. 64, 77, 85 S.Ct. 209, 217, 13 L.Ed.2d 125 (1964). See also New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). By the same token, ' "[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." ' New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971); Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Correlatively, the First and Fourteenth Amendments also protect the right of the public to receive such information and ideas as are published. Kleindienst v. Mandel, 408 U.S., at 762-763, 92 S.Ct., at 2581-2582; Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969). "In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the Court went further and acknowledged that 'news gathering is not without its First Amendment protections,' id., at 707, 92 S.Ct., at 2670, for 'without some protection for seeking out the news, freedom of the press could be eviscerated,' id., at 681, 92 S.Ct., at 2656." Id., at 832-833, 94 S.Ct., at 2809. 18 See, e. g., Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 764-765, 96 S.Ct. 1817, 1827, 48 L.Ed.2d 346; Garrison v. Louisiana, 379 U.S. 64, 77, 85 S.Ct. 209, 217, 13 L.Ed.2d 125; New York Times Co. v. Sullivan, 376 U.S. 254, 266-270, 84 S.Ct. 710, 718-720, 11 L.Ed.2d 686; Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 89 L.Ed. 2013; Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660. See also Branzburg v. Hay s, 408 U.S. 665, 726 n. 2, 92 S.Ct. 2646, 2672, 33 L.Ed.2d 626 (STEWART, J., dissenting.) 19 See also Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398; Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 1806, 23 L.Ed.2d 371; Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542; Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265. 20 "What is at stake here is the societal function of the First Amendment in preserving free public discussion of governmental affairs. No aspect of that constitutional guarantee is more rightly treasured than its protection of the ability of our people through free and open debate to consider and resolve their own destiny. . . . It embodies our Nation's commitment to popular self-determination and our abiding faith that the surest course for developing sound national policy lies in a free exchange of views on public issues. And public debate must not only be unfettered; it must also be informed. For that reason this Court has repeatedly stated that First Amendment concerns encompass the receipt of information and ideas as well as the right of free expression." Saxbe v. Washington Post Co., 417 U.S. 843, 862-863, 94 S.Ct. 2811, 2821 (POWELL, J., dissenting). 21 See A. Meiklejohn, Free Speech and Its Relation to Self-Government 26 (1948): "Just so far as . . . the citizens who are to decide an issue are denied acquaintance with information or opinion or doubt or disbelief or criticism which is relevant to that issue, just so far the result must be ill-considered, ill-balanced planning, for the general good. It is that mutilation of the thinking process of the community against which the First Amendment to the Constitution is directed." 22 Admittedly, the right to receive or acquire information is not specifically mentioned in the Constitution. But "the protection of the Bill of Rights goes beyond the specific guarantees to protect from . . . abridgement those equally fundamental personal rights necessary to make the express guarantees fully meaningful. . . . The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers." Lamont v. Postmaster General, 381 U.S., at 308, 85 S.Ct., at 1497 (BRENNAN, J., concurring). It would be an even more barren marketplace that had willing buyers and sellers and no meaningful information to exchange. 23 See also Branzburg v. Hayes, supra, 408 U.S., at 728, 92 S.Ct., at 2673 (STEWART, J., dissenting): "No less important to the news dissemination process is the gathering of information. News must not be unnecessarily cut off at its source, for without freedom to acquire information the right to publish would be impermissibly compromised. Accordingly, a right to gather news, of some dimensions, must exist." 24 Saxbe v. Washington Post Co., supra, 417 U.S., at 864, 94 S.Ct., at 2822 (POWELL, J., dissenting). 25 In United States v. Nixon, 418 U.S. 683, 705 n. 15, 94 S.Ct. 3090, 3106, n. 15, 41 L.Ed.2d 1039, we pointed out that the Founders themselves followed a policy of confidentiality: "There is nothing novel about governmental confidentiality. The meetings of the Constitutional Convention in 1787 were conducted in complete privacy. 1 M. Farrand, The Records of the Federal Convention of 1787, pp. xi-xxv (1911). Moreover, all records of those meetings were sealed for more than 30 years after the Convention. See 3 Stat. 475, 15th Cong., 1st Sess., Res. 8 (1818). Most of the Framers acknowledged that without secrecy no constitution of the kind that was developed could have been written. C. Warren, The Making of the Constitution 134-139 (1937)." 26 In the case of grand jury proceedings, for example, the secrecy rule has been justified on several grounds: " '(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.' " United States v. Procter & Gamble Co., 356 U.S. 677, 681-682, n. 6, 78 S.Ct. 983, 986 n. 6, 2 L.Ed.2d 1077, quoting United States v. Rose, 215 F.2d 617, 628-629 (CA3 1959). 27 In United States v. Nixon, supra, we also recognized the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties, explaining that "the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process." 418 U.S., at 705, 94 S.Ct., at 3106. 28 Saxbe v. Washington Post Co., 417 U.S., at 861, 94 S.Ct., at 2820 (POWELL, J., dissenting). 29 The Court in Saxbe noted that " 'prisons are institutions where public access is generally limited.' " Id.% , at 849, 94 S.Ct. 2814, (citation omitted). This truism reflects the fact that there are legitimate penological interests served by regulating access, e. g., security and confinement. But concealing prison conditions from the public is not one of those legitimate objectives. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570, decided this Term, does not suggest a contrary conclusion. The effect of the Court's decision in that case was to limit the access by the electronic media to the Nixon tapes to that enjoyed by the press and the public at the time of the trial. That case presented "no question of a truncated flow of information to the public." Id., at 609, 98 S.Ct., at 1308. 30 "The administration of these institutions, the effectiveness of their rehabilitative programs, the conditions of confinement that they maintain, and the experiences of the individuals incarcerated therein are all matters of legitimate societal interest and concern." Saxbe v. Washington Post Co., supra, at 861, 94 S.Ct., at 2820 (POWELL, J., dissenting). 31 "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation . . . ." U.S.Const., Amdt. 6. 32 "The right to a public trial is not only to protect the accused but to protect as much the public's right to know what goes on when men's lives and liberty are at stake . . . ." Lewis v. Peyton, 352 F.2d 791, 792 (CA4 1965). See also In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 506, 92 L.Ed. 682: "The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power." 33 In fact, conditions within the Greystone portion of the Santa Rita facility had been found to constitute cruel and unusual punishment. Brenneman v. Madigan, 343 F.Supp., at 132-133. The public's interest in ensuring that these conditions have been remedied is apparent. For, in final analysis, it is the citizens who bear responsibility for the treatment accorded those confined within penal institutions. 34 "Incarceration after conviction is imposed to punish, to deter, and to rehabilitate the convict. . . . Some freedom to accomplish these ends must of necessity be afforded prison personnel. Conversely, where incarceration is imposed prior to conviction, deterrence, punishment, and retribution are not legitimate functions of the incarcerating officials. Their role is but a temporary holding operation, and their necessary freedom of action is concomitantly diminished. . . . Punitive measures in such a context are out of harmony with the presumption of innocence." Anderson v. Nosser, 438 F.2d 183, 190 (CA5 1971). 35 When fundamental freedoms of citizens have been at stake, the Court has recognized that an abridgment of those freedoms may follow from a wide variety of governmental policies. See, e. g., American Communications Assn. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925; NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660. 36 Moreover the relief granted to KQED will redound to the benefit of members of the public interested in obtaining information about conditions in the Santa Rita jail. The press may have no greater constitutional right to information about prisons than that possessed by the general public. But when the press does acquire information and disseminate it to the public it performs an important societal function. "In seeking out the news the press therefore acts as an agent of the public at large. It is the means by which the people receive that free flow of information and ideas essential to intelligent self-government. By enabling the public to assert meaningful control over the political process the press performs a crucial function in effecting the societal purpose of the First Amendment." Saxbe v. Washington Post Co., 417 U.S., at 863-864, 94 S.Ct., at 2821 (POWELL, J., dissenting). See also Branzburg v. Hayes, 408 U.S., at 726-727, 92 S.Ct., at 2672 (STEWART, J., dissenting). In the context of fashioning a remedy for a violation of rights protected by the First Amendment, consideration of the role of the press in our society is appropriate. 37 For an extensive discussion of this practice in the context of desegregation decrees, see the Court's opinion last Term in Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745. 38 It should be noted, however, that the District Court was presented with substantial evidence indicating that the use of cameras and interviews with randomly selected inmates neither jeopardized security nor threatened legitimate penological interests in other prisons where such access was permitted. See Procunier v. Martinez, 416 U.S. 396, 414 n. 14, 94 S.Ct. 1800, 1812 n. 14, 40 L.Ed.2d 224.

23

438 U.S. 234 98 S.Ct. 2716 57 L.Ed.2d 727 ALLIED STRUCTURAL STEEL COMPANY, Appellant,v.Warren SPANNAUS et al. No. 77-747. Argued April 25, 1978. Decided June 28, 1978. Rehearing Denied Oct. 2, 1978. See 439 U.S. 886, 99 S.Ct. 233. Syllabus Appellant, an Illinois corporation, maintained an office in Minnesota with 30 employees. Under appellant's pension plan, adopted in 1963 and qualified under § 401 of the Internal Revenue Code, employees were entitled to retire and receive a pension at age 65 regardless of length of service, and an employee's pension right became vested if he satisfied certain conditions as to length of service and age. Appellant was the sole contributor to the pension trust fund, and each year made contributions to the fund based on actuarial predictions of eventual payout needs. But the plan neither required appellant to make specific contributions nor imposed any sanction on it for failing to make adequate contributions, and appellant retained a right not only to amend the plan but also to terminate it at any time and for any reason. In 1974, Minnesota enacted the Private Pension Benefits Protection Act (Act), under which a private employer of 100 employees or more (at least one of whom was a Minnesota resident) who provided pension benefits under a plan meeting the qualifications of § 401 of the Internal Revenue Code, was subject to a "pension funding charge" if he terminated the plan or closed a Minnesota office. The charge was assessed if the pension funds were insufficient to cover full pensions for all employees who had worked at least 10 years, and periods of employment prior to the effective date of the Act were to be included in the 10-year employment criterion. Shortly thereafter, in a move planned before passage of the Act, appellant closed its Minnesota office, and several of its employees, who were then discharged, had no vested pension rights under appellant's plan but had worked for appellant for 10 years or more, thus qualifying as pension obligees under the Act. Subsequently, the State notified appellant that it owed a pension funding charge of $185,000 under the Act. Appellant then brought suit in Federal District Court for injunctive and declaratory relief, claiming that the Act unconstitutionally impaired its contractual obligations to its employees under its pension plan, but the court upheld the Act as applied to appellant. Held : The application of the Act to appellant violates the Contract Clause of the Constitution, which provides that "[n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts." Pp. 240-251. (a) While the Contract Clause does not operate to obliterate the police power of the States, it does impose some limits upon the power of a State to abridge existing contractual relationships, even in the exercise of its otherwise legitimate police power. "Legislation adjusting the rights and responsibilities of contracting parties must be upon reasonable conditions and of a character appropriate to the public purpose justifying its adoption." United States Trust Co. v. New Jersey, 431 U.S. 1, 22, 97 S.Ct. 1505, 1518, 52 L.Ed.2d 92. Pp. 242-244. (b) The impact of the Act upon appellant's contractual obligations was both substantial and severe. Not only did the Act retroactively modify the compensation that appellant had agreed to pay its employees from 1963 to 1974, but it did so by changing appellant's obligations in an area where the element of reliance was vital—the funding of a pension plan. Moreover, the retroactive state-imposed vesting requirement was applied only to those employers who terminated their pension plans or who, like appellant, closed their Minnesota offices, thus forcing the employer to make all the retroactive changes in its contractual obligations at one time. Pp. 244-247. (c) The Act does not possess the attributes of those state laws that have survived challenge under the Contract Clause. It was not even purportedly enacted to deal with a broad, generalized economic or social problem, cf. Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 445, 54 S.Ct. 231, 78 L.Ed. 413, but has an extremely narrow focus and enters an area never before subject to regulation by the State. Pp. 247-250. 449 F.Supp. 644, reversed. George B. Christensen, Chicago, Ill., for appellant. Byron E. Starns, St. Paul, Minn., for appellees. Mr. Justice STEWART delivered the opinion of the Court. 1 The issue in this case is whether the application of Minnesota's Private Pension Benefits Protection Act1 to the appellant violates the Contract Clause of the United States Constitution. 2 * In 1974 a pellant Allied Structural Steel Co. (company), a corporation with its principal place of business in Illinois, maintained an office in Minnesota with 30 employees. Under the company's general pension plan, adopted in 1963 and qualified as a single-employer plan under § 401 of the Internal Revenue Code, 26 U.S.C. § 401 (1976 ed.),2 salaried employees were covered as follows: At age 65 an employee was entitled to retire and receive a monthly pension generally computed by multiplying 1% of his average monthly earnings by the total number of his years of employment with the company.3 Thus, an employee aged 65 or more could retire without satisfying any particular length-of-service requirement, but the size of his pension would reflect the length of his service with the company.4 An employee could also become entitled to receive a pension, payable in full at age 65, if he met any one of the following requirements: (1) he had worked 15 years for the company and reached the age of 60; or (2) he was at least 55 years old and the sum of his age and his years of service with the company was at least 75; or (3) he was less than 55 years old but the sum of his age and his years of service with the company was at least 80. Once an employee satisfied any one of these conditions, his pension right became vested in the sense that any subsequent termination of employment would not affect his right to receive a monthly pension when he reached 65. Those employees who quit or were discharged before age 65 without fulfilling one of the other three conditions did not acquire any pension rights. 3 The company was the sole contributor to the pension trust fund, and each year it made contributions to the fund based on actuarial predictions of eventual payout needs. Although those contributions once made were irrevocable, in the sense that they remained part of the pension trust fund, the plan neither required the company to make specific contributions nor imposed any sanction on it for failing to contribute adequately to the fund. 4 The company not only retained a virtually unrestricted right to amend the plan in whole or in part, but was also free to terminate the plan and distribute the trust assets at any time and for any reason. In the event of a termination, the assets of the fund were to go, first, to meet the plan's obligation to those employees already retired and receiving pensions; second, to those eligible for retirement; and finally, if any balance remained, to the other employees covered under the plan whose pension rights had not yet vested.5 Employees within each of these categories were assured payment only to the extent of the pension assets. The plan expressly stated: 5 "No employee shall have any right to, or interest in, any part of the Trust's assets upon termination of his employment or otherwise, except as provided from time to time under this Plan, and then only to the extent of the benefits payable to such employee out of the assets of the Trust. All payments of benefits as provided for in this Plan shall be made solely out of the assets of the Trust and neither the employer, the trustee, nor any member of the Committee shall be liable therefor in any manner." 6 The plan also specifically advised employees that neither its existence nor any of its terms were to be understood as implying any assurance that employees cou d not be dismissed from their employment with the company at any time. 7 In sum, an employee who did not die, did not quit, and was not discharged before meeting one of the requirements of the plan would receive a fixed pension at age 65 if the company remained in business and elected to continue the pension plan in essentially its existing form. 8 On April 9, 1974, Minnesota enacted the law here in question, the Private Pension Benefits Protection Act, Minn.Stat. §§ 181B.01-181B.17. Under the Act, a private employer of 100 employees or more—at least one of whom was a Minnesota resident who provided pension benefits under a plan meeting the qualifications of § 401 of the Internal Revenue Code, was subject to a "pension funding charge" if he either terminated the plan or closed a Minnesota office.6 The charge was assessed if the pension funds were not sufficient to cover full pensions for all employees who had worked at least 10 years. The Act required the employer to satisfy the deficiency by purchasing deferred annuities, payable to the employees at their normal retirement age. A separate provision specified that periods of employment prior to the effective date of the Act were to be included in the 10-year employment criterion.7 9 During the summer of 1974 the company began closing its Minnesota office. On July 31, it discharged 11 of its 30 Minnesota employees, and the following month it notified the Minnesota Commissioner of Labor and Industry, as required by the Act, that it was terminating an office in the State.8 At least nine of the discharged employees did not have any vested pension rights under the company's plan, but had worked for the company for 10 years or more and thus qualified as pension obligees of the company under the law that Minnesota had enacted a few months earlier. On August 18, the State notified the company that it owed a pension funding charge of approximately $185,000 under the provisions of the Private Pension Benefits Protection Act. 10 The company brought suit in a Federal District Court asking for injunctive and declaratory relief. It claimed that the Act unconstitutionally impaired its contractual obligations to its employees under its pension agreement. The three-judge court upheld the constitutional validity of the Act as applied to the company, Fleck v. Spannaus, 449 F.Supp. 644, and an appeal was brought to this Court under 28 U.S.C. § 1253 (1976 ed.).9 We noted probable jurisdiction. 434 U.S. 1045, 98 S.Ct. 88 , 54 L.Ed.2d 795. II A. 11 There can be no question of the impact of the Minnesota Private Pension Benefits Protection Act upon the company's contractual relationships with its employees. The Act substantially altered those relationships by superimposing pension obligations upon the company conspicuously beyond those that it had voluntarily agreed to undertake. But it does not inexorably follow that the Act, as applied to the company, violates the Contract Clause of the Constitution. 12 The language of the Contract Clause appears unambiguously absolute: "No State shall . . . pass any . . . Law impairing the Obligation of Contracts." U.S.Const., Art. I, § 10. The Clause is not, however, the Draconian provision that its words might seem to imply. As the Court has recognized, "literalism in the construction of the contract clause . . . would make it destructive of the public interest by depriving the State of its prerogative of self-protection." W. B. Worthen Co. v. Thomas, 292 U.S. 426, 433, 54 S.Ct. 816, 818, 78 L.Ed. 1344.10 13 Although it was perhaps the strongest single constitutional check on state legislation during our early years as a Nation,11 the Contract Clause receded into comparative desuetude with the adoption of the Fourteenth Amendment, and particularly with the development of the large body of jurisprudence under the Due Process Clause of that Amendment in modern constitutional history.12 Nonetheless, the Contract Clause remains part of the Constitution. It is not a dead letter. And its basic contours are brought into focus by several of this Court's 20th-century decisions. 14 First of all, it is to be accepted as a commonplace that the Contract Clause does not operate to obliterate the police power of the States. "It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power, which, in its various ramifications, is known as the police power, is an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contracts between individuals." Manigault v. Springs, 199 U.S. 473, 480, 26 S.Ct. 127, 130, 50 L.Ed. 274. As Mr. Justice Holmes succinctly put the matter in his opinion for the Court in Hudson Water Co. v. McCarter, 209 U.S. 349, 357, 28 S.Ct. 529, 531, 52 L.Ed. 828, "One whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the State by making a contract about them. The contract will carry with it the infirmity of the subject-matter." B 15 If the Contract Clause is to retain any meaning at all, however, it must be understood to impose some limits upon the power of a State o abridge existing contractual relationships, even in the exercise of its otherwise legitimate police power. The existence and nature of those limits were clearly indicated in a series of cases in this Court arising from the efforts of the States to deal with the unprecedented emergencies brought on by the severe economic depression of the early 1930's. 16 In Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, the Court upheld against a Contract Clause attack a mortgage moratorium law that Minnesota had enacted to provide relief for homeowners threatened with foreclosure. Although the legislation conflicted directly with lenders' contractual foreclosure rights, the Court there acknowledged that, despite the Contract Clause, the States retain residual authority to enact laws "to safeguard the vital interests of [their] people." Id., at 434, 54 S.Ct. at 239. In upholding the state mortgage moratorium law, the Court found five factors significant. First, the state legislature had declared in the Act itself that an emergency need for the protection of homeowners existed. Id., at 444, 54 S.Ct., at 242. Second, the state law was enacted to protect a basic societal interest, not a favored group. Id., at 445, 54 S.Ct., at 242. Third, the relief was appropriately tailored to the emergency that it was designed to meet. Ibid. Fourth, the imposed conditions were reasonable. Id., at 445-447, 54 S.Ct., at 242-243. And, finally, the legislation was limited to the duration of the emergency. Id., at 447, 54 S.Ct., at 243. 17 The Blaisdell opinion thus clearly implied that if the Minnesota moratorium legislation had not possessed the characteristics attributed to it by the Court, it would have been invalid under the Contract Clause of the Constitution.13 These implications were given concrete force in three cases that followed closely in Blaisdell § wake. 18 In W. B. Worthen Co. v. Thomas, 292 U.S. 426, 54 S.Ct. 816, 78 L.Ed. 1344, the Court dealt with an Arkansas law that exempted the proceeds of a life insurance policy from collection by the beneficiary's judgment creditors. Stressing the retroactive effect of the state law, the Court held that it as invalid under the Contract Clause, since it was not precisely and reasonably designed to meet a grave temporary emergency in the interest of the general welfare. In W. B. Worthen Co. v. Kavanaugh, 295 U.S. 56, 55 S.Ct. 555, 79 L.Ed. 1298, the Court was confronted with another Arkansas law that diluted the rights and remedies of mortgage bondholders. The Court held the law invalid under the Contract Clause. "Even when the public welfare is invoked as an excuse," Mr. Justice Cardozo wrote for the Court, the security of a mortgage cannot be cut down "without moderation or reason or in a spirit of oppression." Id., at 60, 55 S.Ct., at 557. And finally, in Treigle v. Acme Homestead Assn., 297 U.S. 189, 56 S.Ct. 408, 80 L.Ed. 575, the Court held invalid under the Contract Clause a Louisiana law that modified the existing withdrawal rights of the members of a building and loan association. "Such an interference with the right of contract," said the Court, "cannot be justified by saying that in the public interest the operations of building associations may be controlled and regulated, or that in the same interest their charters may be amended." Id., at 196, 56 S.Ct., at 411. 19 The most recent Contract Clause case in this Court was United States Trust Co. v. New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92.14 In that case the Court again recognized that although the absolute language of the Clause must leave room for "the 'essential attributes of sovereign power,' . . . necessarily reserved by the States to safeguard the welfare of their citizens," id., at 21, 97 S.Ct., at 1517, that power has limits when its exercise effects substantial modifications of private contracts. Despite the customary deference courts give to state laws directed to social and economic problems, "[l]egislation adjusting the rights and responsibilities of contracting parties must be upon reasonable conditions and of a character appropriate to the public purpose justifying its adoption." Id., at 22, 97 S.Ct., at 1518. Evaluating with particular scrutiny a modification of a contract to which the State itself was a party, the Court in that case held that legislative alteration of the rights and remedies of Port Authority bondholders violated the Contract Clause because the legislation was neither necessary nor reasonable.15 III 20 In applying these principles to the present case, the first inquiry must be whether the state law has, in fact, operated as a substantial impairment of a contractual relationship.16 The severity of the impairment measures the height of the hurdle the state legislation must clear. Minimal alteration of contractual obligations may end the inquiry at its first stage.17 Severe impairment, on the other hand, will push the inquiry to a careful examination of the nature and purpose of the state legislation. 21 The severity of an impairment of contractual obligations can be measured by the factors that reflect the high value the Framers placed on the protection of private contracts. Contracts enable individuals to order their personal and business affairs according to their particular needs and interests. Once arranged, those rights and obligations are binding under the law, and the parties are entitled to rely on them. 22 Here, the company's contracts of employment with its employees included as a fringe benefit or additional form of compensation, the pension plan. The company's maximum obligation was to set aside each year an amount based on the plan's requirements for vesting. The plan satisfied the current federal income tax code and was subject to no other legislative requirements. And, of course, the company was free to amend or terminate the pension plan at any time. The company thus had no reason to anticipate that its employees' pension rights could become vested except in accordance with the terms of the plan. It relied heavily, and reasonably, on this legitimate contractual expectation in calculating its annual contributions to the pension fund. 23 The effect of Minnesota's Private Pension Benefits Protection Act on this contractual obligation was severe. The company was required in 1974 to have made its contributions throughout the pre-1974 life of its plan as if employees' pension rights had vested after 10 years, instead of vesting in accord with the terms of the plan. Thus a basic term of the pension contract—one on which the company had relied for 10 years—was substantially modified. The result was that, although the company's past contributions were adequate when made, they were not adequate when computed under the 10-year statutory vesting requirement. The Act thus forced a current recalculation of the past 10 years' contributions based on the new, unanticipated 10-year vesting requirement. 24 Not only did the state law thus retroactively modify the compensation that the company had agreed to pay its employees from 1963 to 1974, but also it did so by changing the company's obligations in an area where the element of reliance was vital—the funding of a pension plan.18 As the Court has recently recognized: 25 "These [pension] plans, like other forms of insurance, depend on the accumulation of large sums to cover contingencies. The amounts set aside are determined by a painstaking assessment of the insurer's likely liability. Risks that the insurer foresees will be included in the calculation of liability, and the rates or contributions charged will reflect that calculation. The occurrence of major unforeseen contingencies, however, jeopardizes the insurer's solvency and, ultimately, the insureds' benefits. Drastic changes in the legal rules governing pension and insurance funds, like other unforeseen events, can have this effect." Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 721, 98 S.Ct. 1370, 1382, 55 L.Ed.2d 657. 26 Moreover, the retroactive state-imposed vesting requirement was applied only to those employers who terminat d their pension plans or who, like the company, closed their Minnesota offices. The company was thus forced to make all the retroactive changes in its contractual obligations at one time. By simply proceeding to close its office in Minnesota, a move that had been planned before the passage of the Act, the company was assessed an immediate pension funding charge of approximately $185,000. 27 Thus, the statute in question here nullifies express terms of the company's contractual obligations and imposes a completely unexpected liability in potentially disabling amounts. There is not even any provision for gradual applicability or grace periods. Cf. the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1061(b)(2), 1086(b), and 1144 (1976 ed.). See n. 23, infra. Yet there is no showing in the record before us that this severe disruption of contractual expectations was necessary to meet an important general social problem. The presumption favoring "legislative judgment as to the necessity and reasonableness of a particular measure," United States Trust Co., 431 U.S., at 23, 97 S.Ct., at 1518, simply cannot stand in this case. 28 The only indication of legislative intent in the record before us is to be found in a statement in the District Court's opinion: 29 "It seems clear that the problem of plant closure and pension plan termination was brought to the attention of the Minnesota legislature when the Minneapolis-Moline Division of White Motor Corporation closed one of its Minnesota plants and attempted to terminate its pension plan." 449 F.Supp., at 651.19 30 But whether or not the legislation was aimed largely at a single employer,20 it clearly has an extremely narrow focus. It applies only to private employers who have at least 100 employees, at least one of whom works in Minnesota, and who have established voluntary private pension plans, qualified under § 401 of the Internal Revenue Code. And it applies only when such an employer closes his Minnesota office or terminates his pension plan.21 Thus, this law can hardly be characterized, like the law at issue in the Blaisdell case, as one enacted to protect a broad societal interest rather than a narrow class.22 31 Moreover, in at least one other important respect the Act does not resemble the mortgage moratorium legislation whose constitutionality was upheld in the Blaisdell case. This legislation, imposing a sudden, totally unanticipated, and substantial retroactive obligation upon the company to its employees,23 was not enacted to deal with a situation remotely approaching the broad and desperate emergency economic conditions of the early 1930's—conditions of which the Court in Blaisdell took judicial notice.24 32 Entering a field it had never before sought to regulate, the Minnesota Legislature grossly distorted the company's existing contractual relationships with its employees by superimposing retroactive obligations upon the company substantially beyond the terms of its employment contracts. And that burden was imposed upon the company only because it closed its office in the State. 33 This Minnesota law simply does not possess the attributes of those state laws that in the past have survived challenge under the Contract Clause of the Constitution. The law was not even purportedly enacted to deal with a broad, generalized economic or social problem. Cf. Home Building & Loan Assn. v. Blaisdell, 290 U.S., at 445, 54 S.Ct., at 242. It did not operate in an area already subject to state regulation at the time the company's contractual obligations were originally undertaken, but invaded an area never before subject to regulation by the State. Cf. Veix v. Sixth Ward Building & Loan Assn., 310 U.S. 32, 38, 60 S.Ct. 792, 794, 84 L.Ed. 1061.25 It did not effect simply a temporary alteration of the contractual relationships of those within its coverage, but worked a severe, permanent, and immediate change in those relationships—irrevocably and retroactively. Cf. United States Trust Co. v. New Jersey, 431 U.S., at 22, 97 S.Ct., at 1517. And its narrow aim was leveled, not at every Minnesota employer, not even at every Minnesota employer who left the State, but only at those who had in the past been sufficiently enlightened as voluntarily to agree to establish pension plans for their employees. 34 "Not Blaisdell's case, but Worthen's (W. B. Worthen Co. v. Thomas, [292 U.S. 426, 54 S.Ct. 816, 78 L.Ed. 1344]) supplies the applicable rule" here. W. B. Worthen Co. v. Kavanaugh, 295 U.S., at 63, 55 S.Ct., at 558. It is not necessary to hold that the Minnesota law impaired the obligation of the company's employment contracts "without moderation or reason or in a spirit o oppression." Id., at 60, 55 S.Ct., at 557.26 But we do hold that if the Contract Clause means anything at all, it means that Minnesota could not constitutionally do what it tried to do to the company in this case. 35 The judgment of the District Court is reversed. 36 It is so ordered. 37 Mr. Justice BLACKMUN took no part in the consideration or decision of this case. 38 Mr. Justice BRENNAN, with whom Mr. Justice WHITE and Mr. Justice MARSHALL join, dissenting. 39 In cases involving state legislation affecting private contracts, this Court's decisions over the past half century, consistently with both the constitutional text and its original understanding, have interpreted the Contract Clause as prohibiting state legislative Acts which, "[w]ith studied indifference to the interests of the [contracting party] or to his appropriate protection," effectively diminished or nullified the obligation due him under the terms of a contract. W. B. Worthen Co. v. Kavanaugh, 295 U.S. 56, 60, 55 S.Ct. 555, 557, 79 L.Ed. 1298 (1935). But the Contract Clause has not, during this period, been applied to state legislation that, while creating new duties, in nowise diminished the efficacy of any contractual obligation owed the constitutional claimant. Cf. Goldblatt v. Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962). The constitutionality of such legislation has, rather, been determined solely by reference to other provisions of the Constitution, e. g., the Due Process Clause, insofar as they operate to protect existing economic values. 40 Today's decision greatly expands the reach of the Clause. The Minnesota Private Pension Benefits Protection Act (Act) does not abrogate or dilute any obligation due a party to a private contract; rather, like all positive social legislation, the Act imposes new, additional obligations on a particular class of persons. In my view, any constitutional infirmity in the law must therefore derive, not from the Contract Clause, but from the Due Process Clause of the Fourteenth Amendment. I perceive nothing in the Act that works a denial of due process and therefore I dissent. 41 * I begin with an assessment of the operation and effect of the Minnesota statute. Although the Court disclaims knowledge of the purposes of the law, both the terms of the Act and the opinion of the State Supreme Court disclose that it was designed to remedy a serious social problem arising from the operation of private pension plans. As the Minnesota Supreme Court indicated, see Fleck v. Spannaus, 312 Minn. 223, 231, 251 N.W.2d 334, 338 (1977), the impetus for the law must have been a legislative belief—shared by Congress, see generally Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. (1976 ed.)—that private pension plans often were grossly unfair to covered employees. Not only would employers often neglect to furnish their employees with adequate information concerning their rights under the plans, leading to erroneous expectations, but also because employers often failed to make contributions to the pension funds large enough adequately to fund their plans, employees often ultimately received only a small amount of those benefits they reasonably anticipated. See Fleck v. Spannaus, supra, at 231, 251 N.W.2d, at 338. Acting against this background, Minnesota, prior to the enactment of ERISA, adopted the Act to remedy, inter alia, what was viewed as a related serious social problem: the frustration of expectation interests that can occur when an employer closes a single plant and terminates the employees who work there.1 42 Pension plans normally do not make provision to protect the interests of employees—even those within only a few months of the "vesting" of their rights under the plan—who are terminated because an employer closes one of his plants. See generally Bernstein, Employee Pension Rights When Plants Shut Down: Problems and Some Proposals, 76 Harv.L.Rev. 952 (1963). Even assuming—contrary to common experience—that an employer adequately informs his employees that a termination for any reason prior to vesting will result in forfeiture of accrued pension credits, denial of all pension benefits not because of job-related failings, but only because the employees are unfortunate enough to be employed at a plant that closes for purely economic reasons, is harsh indeed. For unlike discharges for inadequate job performance, which may reasonably be foreseen, the closing of a plant is a contingency outside the range of normal expectations of both the employer and the employee—as is made clear by the fact that Allied did not rely upon the possibility of a plant's closing in calculating the amount of its contributions to its pension plan fund.2 43 The Minnesota Act addresses this problem by selecting a period—10 years of employment—after which this generally unforeseen contingency may not be the basis for depriving employees of their accumulated pension fund credits, and by establishing a mechanism to provide the employees with the equivalent of the earned pension plan credits. Although the Court glides over this fact, it should be apparent that the Act will impose only minor economic burdens on employers whose pension plans have been adequately funded. For, where, as was true here and as will generally be true, the possibility of a plant's closing was not relied upon by actuaries in calculating the amount of the employer's contributions to the plan, an adequate pension plan fund would include contributions on behalf of terminated employees of 10 or more years' service whose rights had not vested. Indeed, without the Act, the closing of the plant would create a windfall for the employer, because, due to the resulting surplus in the fund, his future contributions would be reduced. In denying the windfall, the Act requires that the employer use the money he will save in the future to purchase annuities for the terminated employees.3 Of course, the consequence for the employer may be a slightly higher pension expense; the greater outlay might arise, in part, because the past contributions to the plan would have reflected the actuarial possibility that some of the employees who had served 10 years might not ultimately satisfy the plan's vesting requirement. 44 I emphasize, contrary to the repeated protestations of the Court, that the Act does not impose "sudden and unanticipated" burdens. The features of the Act involved in this case come into play only when an employer, after the effective date of the Act, closes a plant. The existence of the Act's duties—which are similar to a legislatively imposed requirement of severance pay measured by the length of the discharged employees' service—is simply one of a number of factors that the employer considers in making the business decision whether to close a plant and terminate the employees who work there. In no sense, therefore, are the Act's requirements unanticipated. While the extent of the employer's obligation depends on pre-enactment conduct, the requirements are triggered solely by the closing of a plant subsequent to enactment.4 II 45 The primary question in this case is whether the Contract Clause is violated by state legislation enacted to protect employees covered by a pension plan by requiring an employer to make outlays—which, although not in this case, will largely be offset against future savings—to provide terminated employees with the equivalent of benefits reasonably to be expected under the plan. The Act does not relieve either the employer or his employees of any existing contract obligation. Rather, the Act simply creates an additional, supplemental duty of the employer, no different in kind from myriad duties created by a wide variety of legislative measures which defeat settled expectations but which have nonetheless been sustained by this Court. See, e. g., Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976); Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915). For this reason, the Minnesota Act, in my view, does not implicate the Contract Clause in any way. The basic fallacy of today's decision is its mistaken view that the Contract Clause protects all contract-based expectations, including that of an employer that his obligations to his employees will not be legislatively enlarged beyond those explicitly provided in his pension plan. 46 * Historically, it is crystal clear that the Contract Clause was not intended to embody a broad constitutional policy of protecting all reliance interests grounded in private contracts. It was made part of the Constitution to remedy a particular social evil—the state legislative practice of enacting laws to relieve individuals of their obligations under certain contracts—and thus was intended to prohibit States from adopting "as [their] policy the repudiation of debts or the destruction of contracts or the denial of means to enforce them," Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 439, 54 S.Ct. 231, 240, 78 L.Ed. 413 (1934). But the Framers never contemplated that the Clause would limit the legislative power of States to enact laws creating duties that might burden some individuals in order to benefit others. 47 The widespread dissatisfaction with the Articles of Confederation and, thus, the adoption of our Constitution, was largely a result of the mass of legislation enacted by various States during our earlier national period to relieve debtors from the obligation to perform contracts with their creditors. The economic depression that followed the Revolutionary War witnessed "an ignoble array of [such state] legislative schemes." Id., at 427, 54 S.Ct., at 236. P rhaps the most common of these were laws providing for the emission of paper currency, making it legal tender for the payment of debts. In addition, there were "installment laws," authorizing the payment of overdue obligations in several installments over a period of months or even years, rather than in a single lump sum as provided for in a contract; "stay laws," statutes staying or postponing the payment of private debts or temporarily closing the courts; and "commodity payment laws," permitting payments in certain enumerated commodities at a proportion, often three-fourths or four-fifths, of actual value. See id., at 454-459, 54 S.Ct., at 246-248 (Sutherland, J., dissenting); Sturges v. Crowninshield, 4 Wheat. 122, 204, 4 L.Ed. 529 (1819); see also B. Wright, The Contract Clause of the Constitution 4 (1938); Hale, The Supreme Court and the Contract Clause, 57 Harv.L.Rev. 512-513 (1944). 48 Thus, the several provisions of Art. I, § 10, of the Constitution—"No State shall . . . coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; [or] pass any . . . Law impairing the Obligation of Contracts . . . ."—were targeted directly at this wide variety of debtor relief measures. Although the debates in the Constitutional Convention and the subsequent public discussion of the Constitution are not particularly enlightening in determining the scope of the Clause, they support the view that the sole evil at which the Contract Clause was directed was the theretofore rampant state legislative interference with the ability of creditors to obtain the payment or security provided for by contract. The Framers regarded the Contract Clause as simply an adjunct to the currency provisions of Art. I, § 10, which operated primarily to bar legislation depriving creditors of the payment of the full value of their loans. See Wright, supra, at 5-16. The Clause was thus intended by the Framers to be applicable only to laws which altered the obligations of contracts by effectively relieving one party of the obligation to perform a contract duty.5 B 49 The terms of the Contract Clause negate any basis for its interpretation as protecting all contract-based expectations from unjustifiable interference. It applies, as confirmed by consistent judicial interpretations, only to state legislative Acts. See generally Tidal Oil Co. v. Flanagan, 263 U.S. 444, 44 S.Ct. 197, 68 L.Ed. 382 (1924). Its inapplicability to impairments by state judicial acts or by national legislation belies interpretation of the Clause as intended broadly to make all contract expectations inviolable. Rather, the only possible interpretation of its terms, especially in view of its history, is as a limited prohibition directed at a particular, narrow social evil, likely to occur only through state legislative action. This evil is identified with admirable precision: "Law[s] impairing the Obligation of Contracts." (Emphasis supplied.) It is nothing less than an abuse of the English language to interpret, as does the Court, the term "impairing" as including laws which create new duties. While such laws may be conceptualized as "enlarging" the obligation of a contract when they add to the burdens that had previously been imposed by a private agreement, such laws cannot be prohibited by the Clause because they do not dilute or nullify a duty a person had previously obligated himself to perform. 50 Early judicial interpretations of the Clause explicitly rejected the argument that the Clause applies to state legislative enactments that enlarge the obligations of contracts Satterlee v. Matthewson, 2 Pet. 380, 7 L.Ed. 458 (1829), is the leading case. There, this Court rejected a claim that a state legislative Act which gave validity to a contract which the state court had held, before the enactment of the statute, to be invalid at common law could be said to have "impaired the obligation of a contract." It reasoned that "all would admit the retrospective character of [the particular state] enactment, and that the effect of it was to create a contract between parties where none had previously existed. But it surely cannot be contended, that to create a contract, and to destroy or impair one, mean the same thing." Id., at 412-413.6 Since creating an obligation where none had existed previously is not an impairment of contract, it of course should follow necessarily that legislation increasing the obligation of an existing contract is not an impairment.7 See Hale, supra, at 514-516. C 51 The Court seems to attempt to justify its distortion of the meaning of the Contract Clause on the ground that imposing new duties on one party to a contract can upset his contract-based expectations as much as can laws that effectively relieve the other party of any duty to perform. But it is no more anomalous to give effect to the term "impairment" and deny a claimant protection under the Contract Clause when new duties are created than it is to give effect to the Clause's inapplicability to acts of the National Government and deny a Contract Clause remedy when an Act of Congress denies a creditor the ability to enforce a contract right to payment. Both results are simply consequences of the fact that the clause does not protect all contract-based expectations. 52 More fundamentally, the Court's distortion of the meaning of the Contract Clause creates anomalies of its own and threatens to undermine the jurisprudence of property rights developed over the last 40 years. The Contract Clause, of course, is but one of several clauses in the Constitution that protect existing economic values from governmental interference. The Fifth Amendment's command that "private property [shall not] be taken for public use, without just compensation" is such a clause. A second is the Due Process Clause, which during the heyday of substantive due process, see Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), largely supplanted the Contract Clause in importance and operated as a potent limitation on government's ability to interfere with economic expectations. See G. Gunther, Cases and Materials on Constitutional Law 603-604 (9th ed. 1975); Hale, The Supreme Court and the Contract Clause: III, 57 Harv.L.Rev. 852, 890-891 (1944). Decisions over the past 50 years have developed a coherent, unified interpretation of all the constitutional provisions that may protect economic expectations and these decisions have recognized a broad latitude in States to effect even severe interference with existing economic values when reasonably necessary to promote the general welfare. See Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631; Pittsburgh v. Alco Parking Corp., 417 U.S. 369, 94 S.Ct. 2291, 41 L.Ed.2d 132 (1974); Goldblatt v. Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167 (1932); Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). At the same time the prohibition of the Contract Clause, consistently with its wording and historic purposes, has been limited in application to state laws that diluted, with utter indifference to the legitimate interests of the beneficiary of a contract duty, the existing contract obligation, W. B. Worthen Co. v. Kavanaugh, 295 U.S. 56, 55 S.Ct. 555, 79 L.Ed. 1298 (1935); see United States Trust Co. v. New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977); cf. El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446 (1965); Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934). 53 Today's conversion of the Contract Clause into a limitation on the power of States to enact laws that impose duties additional to obligations assumed under private contracts must inevitably produce results difficult to square with any rational conception of a constitutional order. Under the Court's opinion, any law that may be characterized as "superimposing" new obligations on those provided for by contract is to be regarded as creating "sudden, substantial, and unanticipated burdens" and then to be subjected to the most exacting scrutiny. The validity of such a law will turn upon whether judges see it as a law that deals with a generalized social problem, whether it is temporary (as few will be) or permanent, whether it operates in an area previously subject to regulation, and, finally, whether its duties apply to a broad class of persons. See ante, at 249-250. The necessary consequence of the extreme malleability of these rather vague criteria is to vest judges with broad subjective discretion to protect property interests that happen to appeal to them.8 54 To permit this level of scrutiny of laws that interfere with contract-based expectations is an anomaly. There is nothing sacrosanct about expectations rooted in contract that justify according them a constitutional immunity denied other property rights. Laws that interfere with settled expectations created by state property law (and which impose severe economic burdens) are uniformly held constitutional where reasonably related to the promotion of the general welfare. Hadacheck v. Sebastian, 39 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915) is illustrative. There a property owner had established on a particular parcel of land a perfectly lawful business of a brickyard, and, in reliance on the existing law, continued to operate that business for a number of years. However, a local ordinance was passed prohibiting the operation of brickyards in the particular locale and diminishing the value of the claimant's parcel and thus of his investment by nearly 90%. Notwithstanding the effect of the ordinance on the value of the investment, the ordinance was sustained against a taking claim. See also Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928) (statute required cutting down ornamental red cedar trees because they had cedar rust which would be harmful to apple trees in the vicinity). 55 There is no logical or rational basis for sustaining the duties created by the laws in Miller and Hadacheck, but invalidating the duty created by the Minnesota Act. Surely, the Act effects no greater interference with reasonable reliance interests than did these other laws. Moreover, the laws operate identically: They all create duties that burden one class of persons and benefit another. The only difference between the present case and Hadacheck or Miller is that here there was a prior contractual relationship between the members of the benefited and burdened classes. I simply cannot accept that this difference should possess constitutional significance. The only means of avoiding this anomaly is to construe the Contract Clause consistently with its terms and the original understanding and hold it is inapplicable to laws which create new duties. III 56 But my view that the Contract Clause has no applicability whatsoever to the Minnesota Act does not end the inquiry in this case. The Due Process Clause of the Fourteenth Amendment limits a State's power to enact such laws and I therefore address that related challenge to the Act's validity.9 I think that any claim based on due process has no merit. 57 My conclusion rests to a considerable extent upon Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). That case involved a federal statute that required the operators of coal mines to compensate employees who had contracted pneumoconiosis even though the employees had terminated their work in the coal-mining industry before the Act was passed. This federal statute imposed a new duty on operators based on past acts and applied even though the coal mine operators might not have known of the danger that their employees would contract pneumoconiosis at the time of the particular employees' service. Id., at 17, 96 S.Ct., at 2893; see also id., at 40 n.4, 96 S.Ct., at 2904 (POWELL, J., concurring in part). While indicating that the Due Process Clause may place greater limitations on the Government's power to legislate retrospectively than it does on the Government's ability to act prospectively, the statute was upheld on the ground that Congress had broad discretion to deal with the serious social problem of pneumoconiosis affecting former miners and that it was "a rational measure to spread the costs of the employees' disabilities to those who have profited from the fruits of their labor—the operators and the coal consumers." Id., at 18, 96 S.Ct., at 2893. 58 A similar analysis is appropriate here. The Act is an attempt to remedy a serious social problem: the utter frustration of an employee's expectations that can occur when he is terminated because his employer closes down his place of work. The burden on his employer is surely far less harsh than that saddled upon coal operators by the federal statute. Too, a large part of the employer's outlay that the Act requires will be offset against future savings. To this extent the Act merely prevents the employer from obtaining a windfall, an effect which would immunize this aspect of the statutory requirement from attack even under the more stringent standards the Court reads into the Contract Clause. See El Paso v. Simmons, 379 U.S., at 515, 85 S.Ct., at 587 and cases cited. To the extent the Act does more than prevent a windfall, it is simply implementing a reasonable legislative judgment that the expectation interests of employees of more than 10 years' service in the receipt of a pension but who, as an actuarial matter, would not satisfy the vesting requirements of the pension plan, should not be frustrated by the generally unforeseen contingency of a plant's closing. 59 Significantly, also, the Minnesota Act, unlike the federal statute upheld in Turner Elkhorn Mining, is not wholly retrospective in its operation. The Act requires an outlay from an employer like appellant only if after the enactment date of the Act (thus when it may give full consideration to the economic consequences of its decision) the employer decides to close its plant. 60 Nor, finally, do I believe it relevant that the Act is limited in coverage to large employers. "In establishing a system of unemployment benefits the legislature is not bound to occupy the whole field. It may strike at the evil where it is most felt." Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 519-520, 57 S.Ct. 868, 877, 81 L.Ed. 1245 (1937). 61 In sum, in my view, the Contract Clause has no applicability whatsoever to the Act, and because I conclude the Act is consistent with the only relevant constitutional restriction—the Due Process Clause—I would affirm the judgment of the District Court. 1 Minn.Stat. § 181B.01 et seq. (1974). This is the same Act that was considered in Malone v. White Motor Corp., 435 U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443, a case presenting a quite different legal issue. 2 The plan was not the result of a collective-bargaining agreement, and no such agreement is at issue in this case. 3 The employee could elect to receive instead a lump-sum payment. 4 Thus, an employee whose average monthly earnings were $800 and who retired at 65 would receive eight dollars monthly if he had worked one year for the company and $320 monthly if he had worked for the company for 40 years. 5 Apart from termination of the fund and distribution of the trust assets, there was no other situation in which employees in this third category would receive anything from the pension fund. 6 Although the company had only 30 employees in Minnesota, it was subject to the Act because it had over 100 employees altogether. 7 Entitled "Nonvested Benefits Prior to Act," Minn.Stat. § 181B.04 provided: "Every employer who hereafter ceases to operate a place of employment or a pension plan within this state shall owe to his employees covered by sections 181B.01 to 181B.17 a pension funding charge which shall be equal to the present value of the total amount of nonvested pension benefits based upon service occurring before April 10, 1974 of such employees of the employer who have completed ten or more years of any covered service under the pension plan of the employer and whose nonvested pension benefits have been or will be forfeited because of the employer's ceasing to operate a place of employment or a pension plan, less the amount of such nonvested pension benefits which are compromised or settled to the satisfaction of the commissioner as provided in sections 181B.01 to 181B.17." 8 According to the stipulated facts, the closing of the company's Minnesota office resulted from a shift of that office's duties to the main company office in Illinois the previous December. The closing was not completed until February 1975, by which time the Minnesota Act had been pre-empted by federal law. See Malone v. White Motor Corp., 435 U.S., at 499, 98 S.Ct., at 1187. We deal here solely with the application of the Minnesota Act to the 11 employees discharged in July 1974. 9 The claims of Walter Fleck and the other two individual plaintiffs were dismissed by the District Court for lack of standing, Fleck v. Spannaus, 421 F.Supp. 20, leaving only the company as an appellant. Warren Spannaus, the Attorney General of Minnesota, is an appellee. 10 See generally B. Schwartz, A Commentary on the Constitution of the United States, Pt. 2, The Rights of Property 266-306 (1965); B. Wright, The Contract Clause of the Constitution (1938). 11 Perhaps the best known of all Contract Clause cases of that era was Dartmouth College v. Woodward, 4 Wheat. 518, 4 L.Ed. 629. 12 Indeed, at least one commentator has suggested that "the results might be the same if the contract clause were dropped out of the Constitution, and the challenged statutes all judged as reasonable or unreasonable deprivations of property." Hale, The Supreme Court and the Contract Clause: III, 57 Harv.L.Rev. 852, 890-891 (1944). 13 In Veix v. Sixth Ward Building & Loan Assn., 310 U.S. 32, 38, 60 S.Ct. 792, 795, 84 L.Ed. 1061, the Court took into account still another consideration in upholding a state law against a Contract Clause attack: the petitioner had "purchased into an enterprise already regulated in the particular to which he now objects." 14 See also El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446. There the Court held that a Texas law shortening the time within which a defaulted land claim could be reinstated did not violate the Contract Clause. "We do not believe that it can seriously be contended that the buyer was substantially induced to enter into these contracts on the basis of a defeasible right to reinstatement . . . or that he interpreted that right to be of everlasting effect. At the time the contract was entered into the State's policy was to sell the land as quickly as possible . . . ." Id., at 514, 85 S.Ct., at 587. In sum, "[t]he measure taken . . . was a mild one indeed, hardly burdensome to the purchaser . . . but nonetheless an important one to the State's interest." Id., at 516-517, 85 S.Ct., at 588. 15 The Court indicated that impairments of a State's own contracts would face more stringent examination under the Contract Clause than would laws regulating contractual relationships between private parties, 431 U.S., at 22-23, 97 S.Ct., at 1518, although it was careful to add that "private contracts are not subject to unlimited modification under the police power." Id., at 22, 97 S.Ct., at 1518. 16 The novel construction of the Contract Clause expressed in the dissenting opinion is wholly contrary to the decisions of this Court. The narrow view that the Clause forbids only state laws that diminish the duties of a contractual obligor and not laws that increase them, a view arguably suggested by Satterlee v. Matthewson, 2 Pet. 380, 7 L.Ed. 458, has since been expressly repudiated. Detroit United R. Co. v. Michigan, 242 U.S. 238, 37 S.Ct. 87, 61 L.Ed. 268; Georgia R. & Power Co. v. Decatur, 262 U.S. 432, 43 S.Ct. 613, 67 L.Ed. 1065. See also, e. g., Sherman v. Smith, 1 Black 587, 17 L.Ed. 163; Bernheimer v. Converse, 206 U.S. 516, 530, 27 S.Ct. 755, 759, 51 L.Ed. 1163; Henley v. Myers, 215 U.S. 373, 30 S.Ct. 148, 54 L.Ed. 240; National Surety Co. v. Architectural Decorating Co., 226 U.S. 276, 33 S.Ct. 17, 57 L.Ed. 221; Columbia R. Gas & Electric Co. v. South Carolina, 261 U.S. 236, 43 S.Ct. 306, 67 L.Ed. 629; Stockholders of Peoples Banking Co. v. Sterling, 300 U.S. 175, 57 S.Ct. 386, 81 L.Ed. 586. Moreover, in any bilateral contract the diminution of duties on one side effectively increases the duties on the other. The even narrower view that the Clause is limited in its application to state laws relieving deb ors of obligations to their creditors is, as the dissent recognizes, post, at 257, n. 5, completely at odds with this Court's decisions. See Dartmouth College v. Woodward, 4 Wheat. 518, 4 L.Ed. 629; Wood v. Lovett, 313 U.S. 362, 61 S.Ct. 983, 85 L.Ed. 1404; El Paso v. Simmons, supra. See generally Hale, The Supreme Court and the Contract Clause, 57 Harv.L.Rev. 512, 514-516 (1944). 17 See n. 14, supra. 18 In some situations the element of reliance may cut both ways. Here, the company had relied upon the funding obligation of the pension plan for more than a decade. There was no showing of reliance to the contrary by its employees. Indeed, Minnesota did not act to protect any employee reliance interest demonstrated on the record. Instead, it compelled the employer to exceed bargained-for expectations and nullified an express term of the pension plan. 19 The Minnesota Supreme Court, Fleck v. Spannaus, 312 Minn. 223, 251 N.W.2d 334, engaged in mere speculation as to the state legislature's purpose. 20 In Malone v. White Motor Corp., 435 U.S., at 501 n.5, 98 S.Ct., at 1188 n.5, the Court noted that the White Motor Corp., an employer of more than 1,000 Minnesota employees, had been prohibited from terminating its pension plan until the expiration date of its collective-bargaining agreement, May 1, 1974. International Union, UAW v. White Motor Corp., 505 F.2d 1193 (CA8). On April 9, 1974, the Minnesota Act was passed, to become effective the following day. When White Motor proceeded to terminate its collectively bargained pension plan at the earliest possible date, May 1, 1974, the State assessed a deficiency of more than $19 million, based upon the Act's 10-year vesting requirement. 21 Not only did the Act have an extremely narrow aim, but also its effective life was extremely short. The United States House of Representatives had passed a version of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (1976 ed.), on February 28, 1974, 120 Cong. Rec. 4781-4782 (1974), and the Senate on March 4, 1974, id., at 5011. Both versions expressly pre-empted state laws. That the Minnesota Legislature was aware of the impending federal legislation is reflected in the explicit provision of the Act that it will "become null and void upon the institution of a mandatory plan of termination insurance guaranteeing the payment of a substantial portion of an employee's vested pension benefits pursuant to any law of the United States." Minn.Stat. § 181B.17. ERISA itself, effective January 1, 1975, expressly pre-empts all state laws regulating covered plans. 29 U.S.C. § 1144 a) (1976 ed.). Thus, the Minnesota act was in force less than nine months, from April 10, 1974, until January 1, 1975. The company argues that the enactment of the law while ERISA was on the horizon totally belies the State's need for this pension legislation. 22 In upholding the constitutionality of the Act, the District Court referred to Minnesota's interest in protecting the economic welfare of its older citizens, as well as their surrounding economic communities. 449 F.Supp. 644. 23 Compare the gradual applicability of ERISA, which itself is not even mandatory. At the outset ERISA did not go into effect at all until four months after it was enacted. 29 U.S.C. § 1144 (1976 ed.). Funding and vesting requirements were delayed for an additional year. §§ 1086(b), 1061(b)(2) (1976 ed.). By contrast, the Minnesota Act became fully effective the day after its passage. The District Court rejected out of hand the argument that employers were constitutionally entitled to some grace period to adjust their pension planning. 449 F.Supp., at 651. 24 This is not to suggest that only an emergency of great magnitude can constitutionally justify a state law impairing the obligations of contracts. See, e. g., Veix v. Sixth Ward Building & Loan Assn., 310 U.S., at 39-40, 60 S.Ct., at 795-796; East New York Savings Bank v. Hahn, 326 U.S. 230, 66 S.Ct. 69, 90 L.Ed. 34; El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446. 25 See n. 13, supra. 26 As Mr. Justice Cardozo's opinion for the Court in the Kavanaugh case made clear, these criteria are "the outermost limits only." The opinion went on to stress the state law's "studied indifference to the interests" of creditors. 295 U.S., at 60, 55 S.Ct., at 556. 1 Since appellant's plan remains in force at its other plants, this case do § not involve a termination of a pension plan, and I will therefore not discuss the aspect of the statute that involves such contingencies except to observe that it, too, is a sensitive attempt to protect employees' expectation interests. 2 All parties to this case agree that Allied's actuarial assumptions in calculating its annual contributions to the pension plan did not include the possibility of a plant's closing. 3 Because appellant's pension plan was, at the time of the plant's closing, underfunded by in excess of $295,000, appellant's pension-funding charge—which the parties stipulate will be between $114,000 and $195,000—will not in fact be offset by future out-of-pocket savings. But this is incidental. What is critical is that appellant, like all covered employers, will be forced to assume an economic burden only a little greater than that inherent in its original undertaking to set up a pension plan for the benefit of its employees. Although the Court refers to the fact that, under the terms of the plan, no sanctions could be imposed on appellant for not adequately funding it, no substantial objection can be levied against the Act to the extent that it mandates funding sufficient to meet the employer's original undertaking. The plan in the present case can be interpreted as imposing a duty on the employer to fund it adequately, see App. to Brief for Appellant 10a (§ 10 of the plan), and the employees here surely would have understood it as imposing that requirement. There can be no serious objection to a measure that makes such a promise enforceable. 4 Although appellant here apparently decided to close its Minnesota plant prior to the Act's effective date, appellant had every opportunity to reconsider that decision after the Act was adopted and presumably reached its final decision after weighing the possible liabilities under the Act. 5 Of course, as our recent decisions make plain, the applicability of the Clause has not been confined to classic "debtor relief" laws, but has been regarded as implicated by any measure which dilutes or nullifies a duty created by a contract. See, e. g., El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446 (1965). 6 Satterlee, which was written by Mr. Justice Washington, necessarily rejected the contrary dictum of Green v. Biddle, 8 Wheat. 1, 84, 5 L.Ed. 547 (1823), another of Mr. Justice Washington's Court opinions. 7 In Georgia R. & Power Co. v. Decatur, 262 U.S. 432, 43 S.Ct. 613, 67 L.Ed. 1065 (1923), Detroit United R. Co. v. Michigan, 242 U.S. 238, 37 S.Ct. 87, 61 L.Ed. 268 (1916), and in dictum in other cases, see ante, at 244-245, n. 16, this Court embraced, without any careful analysis and without giving any consideration to Satterlee v. Matthewson, 2 Pet. 380, 7 L.Ed. 458 (1829), the contrary view that the impairment of a contract may consist in "adding to its burdens" as well as in diminishing its efficacy. Georgia Ry. & Power Co. v. Decatur, supra, 262 U.S., at 439, 43 S.Ct., at 616. These opinions reflect the then-prevailing philosophy of economic due process which has since been repudiated. See Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1936). In my view, the reasoning of Georgia R. Co. and Detroit Unified R. Co. is simply wrong. 8 With respect, the Court's application of these criteria illustrates this point. First, I find it difficult to understand how the Court can assert that the Act's attempt to protect the expectation interests of employees to pension plans does not deal with a "broad, generalized . . . social problem" but that the mortgage moratorium in Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934), did. The Court's suggestion that the Act has a "narrow aim" because it applies only to pension plans overlooks that it is the existence of the pension plan that creates the need for this legislation. Second, the assertion that Minnesota here "invaded an area never before subject to regulation" takes an exceedingly restrictive view of the subject matter of the Act. If it is regarded not as a private pension plan, but rather as the compensation afforded employees by large employers, then the statute operates in an area that has been extensively regulated. The only explanation for the Court's decision is that it subjectively values the interests of employers in pension plans more highly than it does the legitimate expectation interests of employees. 9 I recognize that the only question presented by appellant is whether the Minnesota Act violates the Contract Clause. See Jurisdictional Statement 2. However, I think that a due process claim is fairly subsumed by the question presented and, under the circumstances, elementary fairness requires that I address the due process claim. This reasoning does not apply to the other possible challenges to the Act—e. g., ones based on the "Taking" Clause or on the Commerce Clause—for these others involve rather different considerations from those involved in the Contract and Due Process Clause analyses.

78

438 U.S. 154 98 S.Ct. 2674 57 L.Ed.2d 667 Jerome FRANKS, Petitioner,v.State of DELAWARE. No. 77-5176. Argued Feb. 27, 1978. Decided June 26, 1978. Syllabus Prior to petitioner's Delaware state trial on rape and related charges and in connection with his motion to suppress on Fourth Amendment grounds items of clothing and a knife found in a search of his apartment, he challenged the truthfulness of certain factual statements made in the police affidavit supporting the warrant to search the apartment, and sought to call witnesses to prove the misstatements. The trial court sustained the State's objection to such proposed testimony and denied the motion to suppress, and the clothing and knife were admitted as evidence at the ensuing trial, at which petitioner was convicted. The Delaware Supreme Court affirmed, holding that a defendant under no circumstances may challenge the veracity of a sworn statement used by police to procure a search warrant. Held : Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment, as incorporated in the Fourteenth Amendment, requires that a hearing be held at the defendant's request. The trial court here therefore erred in refusing to examine the adequacy of petitioner's proffer of misrepresentation in the warrant affidavit. Pp. 155-156, 164-172. (a) To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. The allegation of deliberate falsehood or of reckless disregard must point out specifically with supporting reasons the portion of the warrant affidavit that is claimed to be false. It also must be accompanied by an offer of proof, including affidavits or sworn or otherwise reliable statements of witnesses, or a satisfactory explanation of their absence. P. 171. (b) If these requirements as to allegations and offer of proof are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required, but if the remaining content is insufficient, the defendant is entitled under the Fourth and Fourteenth Amendments to a hearing. Pp. 171-172. (c) If, after a hearing, a defendant establishes by a preponderance of the evidence that the false statement was included in the affidavit by the affiant knowingly and intentionally, or with reckless disregard for the truth, and the false statement was necessary to the finding of probable cause, then the search warrant must be voided and the fruits of the search excluded from the trial to the same extent as if probable cause was lacking on the face of the affidavit. Pp. 155-156. 373 A.2d 578, reversed and remanded. Argued by Donald W. Huntley, Wilmington, Del., for petitioner. Harrison F. Turner, Smyrna, Del., for respondent. Mr. Justice BLACKMUN delivered the opinion of the Court. 1 This case presents an important and longstanding issue of Fourth Amendment law. Does a defendant in a criminal proceeding ever have the right, under the Fourth and Fourteenth Amendments, subsequent to the ex parte issuance of a search warrant, to challenge the truthfulness of factual statements made in an affidavit supporting the warrant? 2 In the present case the Supreme Court of Delaware held, as a matter of first impression for it, that a defendant under no circumstances may so challenge the veracity of a sworn statement used by police to procure a search warrant. We reverse, and we hold that, where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. 3 * The controversy over the veracity of the search warrant affidavit in this case arose in connection with petitioner Jerome Franks' state conviction for rape, kidnaping, and burglary. On Friday, March 5, 1976, Mrs. Cynthia Bailey told police in Dover, Del., that she had been confronted in her home earlier that morning by a man with a knife, and that he had sexually assaulted her. She described her assailant's age, race, height, build, and facial hair, and gave a detailed description of his clothing as consisting of a white thermal undershirt, black pants with a silver or gold buckle, a brown leather three-quarter-length coat, and a dark knit cap that he wore pulled down around his eyes. 4 That same day, petitioner Franks coincidentally was taken into custody for an assault involving a 15-year-old girl, Brenda B. ______, six days earlier. After his formal arrest, and while awaiting a bail hearing in Family Court, petitioner allegedly stated to Robert McClements, the youth officer accompanying him, that he was surprised the bail hearing was "about Brenda B. ______. I know her. I thought you said Bailey. I don't know her." Tr. 175, 186. At the time of this statement, the police allegedly had not yet recited to petitioner his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 5 On the following Monday, March 8, Officer McClements happened to mention the courthouse incident to a detective, Ronald R. Brooks, who was working on the Bailey case. Tr. 186, 190-191. On March 9, Detective Brooks and Detective Larry D. Gray submitted a sworn affidavit to a Justice of the Peace in Dover, in support of a warrant to search petitioner's apartment.1 In paragraph 8 of the affidavit's "probable cause page" mention was made of petitioner's statement to McClements. In paragraph 10, it was noted that the description of the assailant given to the police by Mrs. Bailey included the above-mentioned clothing. Finally, the affidavit also described the attempt made by police to confirm that petitioner's typical outfit matched that of the assailant. Paragraph 15 recited: "On Tuesday, 3/9/76, your affiant contacted Mr. James Williams and Mr. Wesley Lucas of the Delaware Youth Center where Jerome Franks is employed and did have personal conversation with both these people." Paragraphs 16 and 17 respectively stated: "Mr. James Williams revealed to your affiant that the normal dress of Jerome Franks does consist of a white knit thermal undershirt and a brown leather jacket," and "Mr. Wesley Lucas revealed to your affiant that in addition to the thermal undershirt and jacket, Jerome Franks often wears a dark green knit hat." 6 The warrant was issued on the basis of this affidavit. App. 9. Pursuant to the warrant, police searched petitioner's apartment and found a white thermal undershirt, a knit hat, dark pants, and a leather jacket, and, on petitioner's kitchen table, a single-blade knife. All these ultimately were introduced in evidence at trial. 7 Prior to the trial, however, petitioner's counsel filed a written motion to suppress the clothing and the knife found in the search; this motion alleged that the warrant on its face did not show probable cause and that the search and seizure were in violation of the Fourth and Fourteenth Amendments. Id., at 11-12. At the hearing on the motion to suppress, defense counsel orally amended the challenge to include an attack on the veracity of the warrant affidavit; he also specifically requested the right to call as witnesses Detective Brooks, Wesley Lucas of the Youth Center, and James D. Morrison, formerly of the Youth Center.2 Id., at 14-17. Counsel asserted that Lucas and Morrison would testify that neither had been personally interviewed by the warrant affiants, and that, although they might have talked to another police officer, any information given by them to that officer was "somewhat different" from what was recited in the affidavit. Id., at 16. Defense counsel charged that the misstatements were included in the affidavit not inadvertently, but in "bad faith." Id., at 25. Counsel also sought permission to call Officer McClements and petitioner as witnesses, to seek to establish that petitioner's courthouse statement to police had been obtained in violation of petitioner's Miranda rights, and that the search warrant was thereby tainted as the fruit of an illegally obtained confession. Id., at 17, 27. 8 In rebuttal, the State's attorney argued in detail, App. 15-24, (a) that Del.Code Ann., Tit. 11, §§ 2306, 2307 (1974), contemplated that any challenge to a search warrant was to be limited to questions of sufficiency based on the face of the affidavit; (b) that, purportedly, a majority of the States whose practice was not dictated by statute observed such a rule;3 and (c) that federal cases on the issue were to be distinguished because of Fed.Rule Crim.Proc. 41(e).4 He also noted that this Court had reserved the general issue of subfacial challenge to veracity in Rugendorf v. United States, 376 U.S. 528, 531-532, 84 S.Ct. 825, 827-828, 11 L.Ed.2d 887 (1964), when it disposed of that case on the ground that, even if a veracity challenge were permitted, the alleged factual inaccuracies in that case's affidavit "were of only peripheral relevancy to the showing of probable cause, and, not being within the personal knowledge of the affiant, did not go to the integrity of the affidavit." Id., at 532, 84 S.Ct., at 828. The State objected to petitioner's "going behind [the warrant affidavit] in any way," and argued that the court must decide petitioner's motion "on the four corners" of the affidavit. App. 21. 9 The trial court sustained the State's objection to petitioner's proposed evidence. Id., at 25, 27. The motion to suppress was denied, and the clothing and knife were admitted as evidence at the ensuing trial. Tr. 192-196. Petitioner was convicted. In a written motion for judgment of acquittal and/or new trial, Record Doc. No. 23, petitioner repeated his objection to the admission of the evidence, stating that he "should have been allowed to impeach the Affidavit used in the Search Warrant to show purposeful misrepresentation of information contained therein." Id., at 2. The motion was denied, and petitioner was sentenced to two consecutive terms of 25 years each and an additional consecutive life sentence. 10 On appeal, the Supreme Court of Delaware affirmed. 373 A.2d 578 (1977). It agreed with what it deemed to be the "majority rule" that no attack upon the veracity of a warrant affidavit could be made: 11 "We agree with the majority rule for two reasons. First, it is the function of the issuing magistrate to determine the reliability of information and credibility of affiants in deciding whether the requirement of probable cause has been met. There has been no need demonstrated for interfering with this function. Second, neither the probable cause nor suppression hearings are adjudications of guilt or innocence; the matters asserted by defendant are more properly considered in a trial on the merits." Id., at 580. 12 Because of this resolution, the Delaware Supreme Court noted that there was no need to consider petitioner's "other contentions, relating to the evidence that would have been introduced for impeachment purposes." Ibid. 13 Franks' petition for certiorari presented only the issue whether the trial court had erred in refusing to consider his allegation of misrepresentation in the warrant affidavit.5 Because of the importance of the question, and because of the conflict among both state and federal courts, we granted certiorari. 434 U.S. 889, 98 S.Ct. 261, 54 L.Ed.2d 174 (1977). II 14 It may be well first to note how we are compelled to reach the Fourth Amendment issue proffered in this case. In particular, the State's proposals of an independent and adequate state ground and of harmless error do not dispose of the controversy. 15 Respondent argues that petitioner's trial counsel, who is not the attorney representing him in this Court, failed to include the challenge to the veracity of the warrant affidavit in the written motion to suppress filed before trial, contrary to the requirement of Del.Super.Ct.Rule Crim.Proc. 41(e) that a motion to suppress "shall state the grounds upon which it is made." The Supreme Court of Delaware, however, disposed of petitioner's Fourth Amendment claim on the merits. A ruling on the merits of a federal question by the highest state court leaves the federal question open to review in this Court. Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123, 134, 34 S.Ct. 874, 877, 58 L.Ed. 1245 (1914); Raley v. Ohio, 360 U.S. 423, 436-437, 79 S.Ct. 1257, 1265-1266, 3 L.Ed.2d 1344 (1959); Boykin v. Alabama, 395 U.S. 238, 241-242, 89 S.Ct. 1709, 1711-1712, 23 L.Ed.2d 274 (1969). 16 Respondent next suggests that any error here was harmless. Assuming, arguendo, respondent says, that petitioner's Fourth Amendment claim was valid, and that the warrant should have been tested for veracity and the evidence excluded, it is still clear beyond a reasonable doubt that the evidence complained of did not contribute to petitioner's onviction. Chambers v. Maroney, 399 U.S. 42, 52-53, 90 S.Ct. 1975, 1981-1982, 26 L.Ed.2d 419 (1970). This contention falls of its own weight. The sole issue at trial was that of consent. Petitioner admitted, App. 37, that he had engaged in sexual relations with Mrs. Bailey on the day in question. She testified, Tr. 50-51, 69-70, that she had not consented to this, and that petitioner, upon first encountering her in the house, had threatened her with a knife to force her to submit. Petitioner claimed that she had given full consent and that no knife had been present. Id., at 254, 271. To corroborate its contention that consent was lacking, the State introduced in evidence a stainless steel, wooden-handled kitchen knife found by the detectives on the kitchen table in petitioner's apartment four days after the alleged rape. Id., at 195-196; Magistrate's Return on the Search Warrant March 9, 1976, Record Doc. No. 23. Defense counsel objected to its admission, arguing that Mrs. Bailey had not given any detailed description of the knife alleged to be involved in the incident and had claimed to have seen the knife only in "pitch blackness." Tr. 195. The State obtained its admission, however, as a knife that matched the description contained in the search warrant, and Mrs. Bailey testified that the knife allegedly used was, like the knife in evidence, single-edged and not a pocket knife, and that the knife in evidence was the same length and thickness as the knife used in the crime. Id., at 69, 114-115. The State carefully elicited from Detective Brooks the fact that this was the only knife found in petitioner's apartment. Id., at 196. Although respondent argues that the knife was presented to the jury as "merely exemplary of the generic class of weapon testimonially described by the victim," Brief for Respondent 15-16, the State at trial clearly meant to suggest that this was the knife that had been used against Mrs. Bailey. Had the warrant been quashed, and the knife excluded from the trial as evidence, we cannot say with any assurance that the jury would have reached the same decision on the issue of consent, particularly since there was countervailing evidence on that issue. 17 We should note, in addition, why this case cannot be treated as was the situation in Rugendorf v. United States. There the Court held that no Fourth Amendment question was presented when the claimed misstatements in the search warrant affidavit "were of only peripheral relevancy to the showing of probable cause, and, not being within the personal knowledge of the affiant, did not go to the integrity of the affidavit." 376 U.S., at 532, 84 S.Ct., at 828 (emphasis added). Rugendorf emphasized that the "erroneous statements . . . were not those of the affiant" and thus "fail[ed] to show that the affiant was in bad faith or that he made any misrepresentations to the Commissioner in securing the warrant." Id., at 533, 84 S.Ct., at 828.6 Here, whatever the judgment may be as to the relevancy of the alleged misstatements, the integrity of the affidavit was directly placed in issue by petitioner in his allegation that the affiants did not, as claimed, speak directly to Lucas and Morrison. Whether such conversations took place is surely a matter "within the personal knowledge of the affiant[s]." We also might note that although respondent's brief puts forth that the alleged misrepresentations in the affidavit were of little importance in establishing probable cause, Brief for Respondent 16, respondent at oral argument appeared to disclaim any reliance on Rugendorf. Tr. of Oral Arg. 30. III 18 Whether the Fourth and Fourteenth Amendments, and the derivative exclusionary rule made applicable to the States under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), ever mandate that a defendant be permitted to attack the veracity of a warrant affidavit after the warrant has been issued and executed, is a question that encounters conflicting values. The bulwark of Fourth Amendment protection, of course, is the Warrant Clause, requiring that, absent certain exceptions, police obtain a warrant from a neutral and disinterested magistrate before embarking upon a search. In deciding today that, in certain circumstances, a challenge to a warrant's veracity must be permitted, we derive our ground from language of the Warrant Clause itself, which surely takes the affiant's good faith as its premise: "[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation . . . ." Judge Frankel, in United States v. Halsey, 257 F.Supp. 1002, 1005 (S.D.N.Y.1966), aff'd, Docket No. 31369 (CA2, June 12, 1967) (unreported), put the matter simply: "[W]hen the Fourth Amendment demands a factual showing sufficient to comprise 'probable cause,' the obvious assumption is that there will be a truthful showing" (emphasis in original). This does not mean "truthful" in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that sometimes must be garnered hastily. But surely it is to be "truthful" in the sense that the information put forth is believed or appropriately accepted by the affiant as true. It is established law, see Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 13, 78 L.Ed. 159 (1933); Giordenello v. United States, 357 U.S. 480, 485-486, 78 S.Ct. 1245, 1249-1250, 2 L.Ed.2d 1503 (1958); Aguilar v. Texas, 378 U.S. 108, 114-115, 84 S.Ct. 1509, 1513-1514, 12 L.Ed.2d 723 (1964), that a warrant affidavit must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter. If an informant's tip is the source of information, the affidavit must recite "some of the underlying circumstances from which the informant concluded" that relevant evidence might be discovered, and "some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . . . was 'credible' or his information 'reliable.' " Id., at 114, 84 S.Ct., at 1514. Because it is the magistrate who must determine independently whether there is probable cause, Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-369, 92 L.Ed. 436 (1948); Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725, 735-736, 4 L.Ed.2d 697 (1960), it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliber tely or reckless false statement, were to stand beyond impeachment. 19 In saying this, however, one must give cognizance to competing values that lead us to impose limitations. They perhaps can best be addressed by noting the arguments of respondent and others against allowing veracity challenges. The arguments are several: 20 First, respondent argues that the exclusionary rule, created in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), is not a personal constitutional right, but only a judicially created remedy extended where its benefit as a deterrent promises to outweigh the societal cost of its use; that the Court has declined to apply the exclusionary rule when illegally seized evidence is used to impeach the credibility of a defendant's testimony, Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), is used in a grand jury proceeding, United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), or is used in a civil trial, United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976); and that the Court similarly has restricted application of the Fourth Amendment exclusionary rule in federal habeas corpus review of a state conviction. See Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Respondent argues that applying the exclusionary rule to another situation—the deterrence of deliberate or reckless untruthfulness in a warrant affidavit—is not justified for many of the same reasons that led to the above restrictions; interfering with a criminal conviction in order to deter official misconduct is a burden too great to impose on society. 21 Second, respondent argues that a citizen's privacy interests are adequately protected by a requirement that applicants for a warrant submit a sworn affidavit and by the magistrate's independent determination of sufficiency based on the face of the affidavit. Applying the exclusionary rule to attacks upon veracity would weed out a minimal number of perjurious government statements, says respondent, but would overlap unnecessarily with existing penalties against perjury, including criminal prosecutions, departmental discipline for misconduct, contempt of court, and civil actions. 22 Third, it is argued that the magistrate already is equipped to conduct a fairly vigorous inquiry into the accuracy of the factual affidavit supporting a warrant application. He may question the affiant, or summon other persons to give testimony at the warrant proceeding. The incremental gain from a post-search adversary proceeding, it is said, would not be great. 23 Fourth, it is argued that it would unwisely diminish the solemnity and moment of the magistrate's proceeding to make his inquiry into probable cause reviewable in regard to veracity. The less final, and less deference paid to, the magistrate's determination of veracity, the less initiative will he use in that task. Denigration of the magistrate's function would be imprudent insofar as his scrutiny is the last bulwark preventing any particular invasion of privacy before it happens. 24 Fifth, it is argued that permitting a post-search evidentiary hearing on issues of veracity would confuse the pressing issue of guilt or innocence with the collateral question as to whether there had been official misconduct in the drafting of the affidavit. The weight of criminal dockets, and the need to prevent diversion of attention from the main issue of guilt or innocence, militate against such an added burden on the trial courts. And if such hearings were conducted routinely, it is said, they would be misused by defendants as a convenient source of discovery. Defendants might even use the hearings in an attempt to force revelation of the identity of informants. 25 Sixth and finally, it is argued that a post-search veracity challenge is inappropriate because the accuracy of an affidavit in large part is beyond the control of the affiant. An affidavit may properly be based n hearsay, on fleeting observations, and on tips received from unnamed informants whose identity often will be properly protected from revelation under McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). 26 None of these considerations is trivial. Indeed, because of them, the rule announced today has a limited scope, both in regard to when exclusion of the seized evidence is mandated, and when a hearing on allegations of misstatements must be accorded. But neither do the considerations cited by respondent and others have a fully controlling weight; we conclude that they are insufficient to justify an absolute ban on post-search impeachment of veracity. On this side of the balance, also, there are pressing considerations: First, a flat ban on impeachment of veracity could denude the probable-cause requirement of all real meaning. The requirement that a warrant not issue "but upon probable cause, supported by Oath or affirmation," would be reduced to a nullity if a police officer was able to use deliberately falsified allegations to demonstrate probable cause, and, having misled the magistrate, then was able to remain confident that the ploy was worthwhile. It is this specter of intentional falsification that, we think, has evoked such widespread opposition to the flat nonimpeachment rule from the commentators,7 from the American Law Institute in its Model Code of Pre-Arraignment Procedure, § SS290.3(1) (Prop. Off. Draft 1975), from the federal courts of appeals, and from state courts. On occasion, of course, an instance of deliberate falsity will be exposed and confirmed without a special inquiry either at trial, seeUnited States ex rel. Petillo v. New Jersey, 400 F.Supp. 1152, 1171-1172 (NJ 1975), vacated and remanded by order sub nom. Albanese v. Yeager, 541 F.2d 275 (CA3 1976), or at a hearing on the sufficiency of the affidavit, cf. United States v. Upshaw, 448 F.2d 1218, 1221-1222 (CA5 1971), cert. denied, 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d 810 (1972). A flat nonimpeachment rule would bar re-examination of the warrant even in these cases. 27 Second, the hearing before the magistrate not always will suffice to discourage lawless or reckless misconduct. The pre-search proceeding is necessarily ex parte, since the subject of the search cannot be tipped off to the application for a warrant lest he destroy or remove evidence. The usual reliance of our legal system on adversary proceedings itself should be an indication that an ex parte inquiry is likely to be less vigorous. The magistrate has no acquaintance with the information that may contradict the good faith and reasonable basis of the affiant's allegations. The pre-search proceeding will frequently be marked by haste, because of the understandable desire to act before the evidenc disappears; this urgency will not always permit the magistrate to make an extended independent examination of the affiant or other witnesses. 28 Third, the alternative sanctions of a perjury prosecution, administrative discipline, contempt, or a civil suit are not likely to fill the gap. Mapp v. Ohio, implicitly rejected the adequacy of these alternatives. Mr. Justice Douglas noted this in his concurrence in Mapp, 367 U.S., at 670, 81 S.Ct., at 1699, where he quoted from Wolf v. Colorado, 338 U.S. 25, 42, 69 S.Ct. 1359, 1369, 93 L.Ed. 1782 (1949): " 'Self-scrutiny is a lofty ideal, but its exaltation reaches new heights if we expect a District Attorney to prosecute himself or his associates for well-meaning violations of the search and seizure clause during a raid the District Attorney or his associates have ordered.' " 29 Fourth, allowing an evidentiary hearing, after a suitable preliminary proffer of material falsity, would not diminish the importance and solemnity of the warrant-issuing process. It is the ex parte nature of the initial hearing, rather than the magistrate's capacity, that is the reason for the review. A magistrate's determination is presently subject to review before trial as to sufficiency without any undue interference with the dignity of the magistrate's function. Our reluctance today to extend the rule of exclusion beyond instances of deliberate misstatements, and those of reckless disregard, leaves a broad field where the magistrate is the sole protection of a citizen's Fourth Amendment rights, namely, in instances where police have been merely negligent in checking or recording the facts relevant to a probable-cause determination. 30 Fifth, the claim that a post-search hearing will confuse the issue of the defendant's guilt with the issue of the State's possible misbehavior is footless. The hearing will not be in the presence of the jury. An issue extraneous to guilt already is examined in any probable-cause determination or review of probable cause. Nor, if a sensible threshold showing is required and sensible substantive requirements for suppression are maintained, need there be any new large-scale commitment of judicial resources; many claims will wash out at an early stage, and the more substantial ones in any event would require judicial resources for vindication if the suggested alternative sanctions were truly to be effective. The requirement of a substantial preliminary showing would suffice to prevent the misuse of a veracity hearing for purposes of discovery or obstruction. And because we are faced today with only the question of the integrity of the affiant's representations as to his own activities, we need not decide, and we in no way predetermine, the difficult question whether a reviewing court must ever require the revelation of the identity of an informant once a substantial preliminary showing of falsity has been made. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), the Court's earlier disquisition in this area, concluded only that the Due Process Clause of the Fourteenth Amendment did not require the State to expose an informant's identity routinely, upon a defendant's mere demand, when there was ample evidence in the probable-cause hearing to show that the informant was reliable and his information credible. 31 Sixth and finally, as to the argument that the exclusionary rule should not be extended to a "new" area, we cannot regard any such extension really to be at issue here. Despite the deep skepticism of Members of this Court as to the wisdom of extending the exclusionary rule to collateral areas, such as civil or grand jury proceedings, the Court has not questioned, in the absence of a more efficacious sanction, the continued application of the rule to suppress evidence from the State's case where a Fourth Amendment violation has been substantial and deliberate. See Brewer v. Williams, 430 U.S. 387, 422, 97 S.Ct. 1232, 1251, 51 L.Ed.2d 423 (1977) (BURGER, C. J., dissenting); Stone v. Powell, 428 U.S., at 538, 96 S.Ct., at 3072 (WHITE, J., dissenting). We see no principled basis for distinguishing between the question of the sufficiency of an affidavit, which also is subject to a post-search re-examination, and the question of its integrity. IV 32 In sum, and to repeat with some embellishment what we stated at the beginning of this opinion: There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.8 On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue. 33 Because of Delaware's absolute rule, its courts did not have occasion to consider the proffer put forward by petitioner Franks. Since the framing of suitable rules to govern proffers is a matter properly left to the States, we decline ourselves to pass on petitioner's proffer. The judgment of the Supreme Court of Delaware is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. 34 It is so ordered. APPENDIX A TO OPINION OF THE COURT J. P. Court #7 35 IN THE MATTER OF: Jerome Franks, B/M, DOB: 10/9/54 and 222 S. Governors Ave., Apt. # 3, Dover, Delaware. A two room apartment located on the South side, second floor, of a white block building on the west side of S. Governors Avenue, Between Loockerman Street and North Street, in the City of Dover. The ground floor of this building houses Wayman's Barber Shop. STATE OF DELAWARE) ss: COUNTY OF KENT ) 36 Be it remembered that on this 9th day of March A. D. 1976 before me John Green, personally appeared Det. Ronald R. Brooks and Det. Larry Gray of the Dover Police Department who being by me duly sworn depose and say: 37 That they have reason to believe and do believe that in the 222 S. Governors Avenue, Apartment # 3, Dover, Delaware. A two room apartment located on the south side second floor of a white block building on the west side of S. Governors Avenue between Loockerman Street and North Street in the City of Dover. The ground floor of this building houses Wayman's Barber Shop the occupant of which is Jerome Franks there has been and/or there is now located and/or concealed certain property in said house, place, conveyance and/or on the person or persons of the occupants thereof, consisting of property, papers, articles, or things which are the instruments of criminal offense, and/or obtained in the commissio of a crime, and/or designated to be used in the commission of a crime, and not reasonably calculated to be used for any other purpose and/or the possession of which is unlawful, papers, articles, or things which are of an evidentiary nature pertaining to the commission of a crime or crimes specified therein and in particular, a white knit thermal undershirt; a brown 3/4 length leather jacket with a tie-belt; a pair of black mens pants; a dark colored knit hat; a long thin bladed knife or other instruments or items relating to the crime. 38 Articles, or things were, are, or will be possessed and/or used in violation of Title 11, Sub-Chapter D, Section 763, Delaware Code in that [see attached probable-cause page]. 39 Wherefore, affiants pray that a search warrant may be issued authorizing a search of the aforesaid 222 S. Governors Avenue, Apartment # 3, Dover, Delaware. A two room apartment located on the south side second floor of a white block building on the west side of S. Governors Avenue between Loockerman St. and North Street, in the City of Dover in the manner provided by law. 40 /s/ Det. Ronald R. Brooks Affiant 41 /s/ Det. Larry D. Gray Affiant 42 SWORN to (or affirmed) and subscribed before me this 9th day of March A. D. 1976. 43 /s/ John [illegible] Green Judge Ct 7 44 The facts tending to establish probable cause for the issuance of this search warrant are: 45 1. On Saturday, 2/28/76, Brenda L. B. ______, W/F/15, reported to the Dover Police Department that she had been kidnapped and raped. 46 2. An investigation of this complaint was conducted by Det. Boyce Failing of the Dover Police Department. 47 3. Investigation of the aforementioned complaint revealed that Brenda B. ______, while under the influence of drugs, was taken to 222 S. Governors Avenue, Apartment 3, Dover, Delaware. 48 4. Investigation of the aforementioned complaint revealed that 222 S. Governors Avenue, Apartment # 3, Dover, Delaware, is the residence of Jerome Franks, B/M DOB: 10/9/54. 49 5. Investigation of the aforementioned complaint revealed that on Saturday, 2/2[8]/76, Jerome Franks did have sexual contact with Brenda B. ______ without her consent. 50 6. On Thursday, 3/4/76 at the Dover Police Department, Brenda B. ______ revealed to Det. Boyce Failing that Jerome Franks was the person who committed the Sexual Assault against her. 51 7. On Friday, 3/5/76, Jerome Franks was placed under arrest by Cpl. Robert McClements of the Dover Police Department, and charged with Sexual Misconduct. 52 8. On 3/5/76 at Family Court in Dover, Delaware, Jerome Franks did, after being arrested on the charge of Sexual Misconduct, ma[k]e a statement to Cpl. Robert McClements, that he thought the charge was concerning Cynthia Bailey not Brenda B. ______. 53 9. On Friday, 3/5/76, Cynthia C. Bailey, W/F/21 of 132 North Street, Dover, Delaware, did report to Dover Police Department that she had been raped at her residence during the night. 54 10. Investigation conducted by your affiant on Friday, 3/5/76, revealed the perpetrator of the crime to be an unknown black male, approximately 5'7", 150 lbs., dark complexion, wearing white thermal undershirt, black pants with a belt having a silver or gold buckle, a brown leather 3/4 length coat with a tie belt in the front, and a dark knit cap pulled around the eyes. 55 11. Your affiant can state, that during the commission of this crime, Cynthia Bailey was forced at knife point and with the threat of death to engage in sexual intercourse with the perpetrator of the crime. 56 12. Your affiant can state that entry was gained to the residence of Cynthia Bailey through a window located on the east side of the residence. 57 13. Your affiant can state that the residence of Jerome Franks is within a very short distance and direct sight of the residence of Cynthia Bailey. 58 14. Your affiant can state that the description given by Cynthia Bailey of the unknown black male does coincide with the description of Jerome Franks. 59 15. On Tuesday, 3/9/76, your affiant contacted Mr. James Williams and Mr. Wesley Lucas of the Delaware Youth Center where Jerome Franks is employed and did have personal conversation with both these people. 60 16. On Tuesday, 3/9/76, Mr. James Williams revealed to your affiant that the normal dress of Jerome Franks does consist of a white knit thermal undershirt and a brown leather jacket. 61 17. On Tuesday, 3/9/76, Mr. Wesley Lucas revealed to your affiant that in addition to the thermal undershirt and jacket, Jerome Franks often wears a dark green knit hat. 62 18. Your affiant can state that a check of official records reveals that in 1971 Jerome Franks was arrested for the crime of rape and subsequently convicted with Assault with intent to Rape. APPENDIX B TO OPINION OF THE COURT 63 States permitting veracity challenges include: 64 Alabama: McConnell v. State, 48 Ala.App. 523, 65 526-528,266 So.2d 328,330-333 (Crim. App.), cert. denied, 289 Ala. 746, 266 66 So.2d 334 (1972). 67 Alaska: Davenport v. State. 515 P.2d 377, 380 68 (1973). 69 Arizona: State v. Payne, 25 Ariz.App. 454, 70 456, 544 P.2d 671, 673 (1976); cf. 71 State v. Pike, 113 Ariz. 511, 513-514, 557 P.2d 1068, 1070-1071 (1976) (en 72 banc). 73 Colorado: People v. Arnold, 186 Colo. 372, 377- 378, 527 P.2d 806, 809 (1974) (en 74 banc). 75 Iowa: State v. Boyd, 224 N.W.2d 609, 616 76 (1974) (en banc). 77 Louisiana: State v. Melson, 284 So.2d 873, 874- 78 875 (1973), limiting State v. Anselmo, 260 La. 306, 313-322, 256 So.2d 98, 101-104 (1971), cert. denied, 407 U.S. 911, 92 S.CT. 2438, 32 L.Ed.2d 79 685 (1972). 80 Massachusetts: Commonwealth v. Reynolds, 374 Mass. 81 142, 149 151, 370 N.E.2d 1375, 1379- 82 1380 (1977). 83 Minnesota: State v. Luciow, 308 Minn. 6, 10-13, 240 N.W.2d 833, 837-838 (1976) (en 84 banc). 85 Montana: State v. Nanoff, 160 Mont. 344, 348, 502 P.2d 1138, 1140 (1972), sub silentio 86 overruling State v. English, 71 87 Mont. 343, 350, 229 P. 727, 729, (1924). 88 New Hampshire: State v. Spero, 117 N.H. 199, 204- 205, 371 A.2d 1155, 1158 (1977) 89 (based on State Constitution). 90 Pennsylvania: Commonwealth v. Hall, 451 Pa. 201, 91 204, 302 A.2d 342, 344 (1973). 92 South Carolina: State v. Sachs, 264 S.C. 541, 556,216 93 S.E.2d 501, 509 (1975). 94 Vermont: State v. Dupaw, 134 Vt. 451, 452-453, 95 365 A.2d 967, 968 (1976). 96 Washington: State v. Lehman, 8 Wash.App. 408, 97 414, 506 P.2d 1316, 1321 (1973) (Div. 98 3); State v. Goodlow, 11 Wash. App. 533, 535, 523 P.2d 1204, 1206 99 (1974) (Div. 1); cf. State v. Manly, 100 85 Wash.2d 120, 125, 530 P.2d 306, 101 309 (en banc), cert. denied, 423 U.S. 855, 96 S.Ct. 104, 46 L.Ed.2d 81 102 (1975). 103 Five States, whose practice is dictated or may be dictated by statute, also permit veracity challenges: 104 California: Theodor v. Superior Court, 8 Cal.3d 105 77,90,100-101, 104 Cal.Rptr.226, 235, 243,501 P.2d 234, 243, 251 (1972)(en 106 banc); see Cal.Penal Code Ann. §§ 1538.5, 1539, 1540 (West 1970 and 107 Supp.1978). 108 New York: People v. Alfinito, 16 N.Y.2d 181, 185-186, 264 N.Y.S.2d 243, 245, 211 109 N.E.2d 644, 646 (1965); People v. Slaughter, 37 N.Y.2d 596, 600, 376 N.Y.S.2d 114, 116, 338 N.E.2d 622, 624 110 (1975); See N.Y.Code Crim.Proc. §§ 111 813-c, 813-d, 813-e (McKinney Supp. 112 1970-1971), superseded by N.Y.Crim. Proc. Law, Art. 710 (McKinney 113 Supp. 114 1977-1978). 115 Oregon: State v. Wright, 266 Or. 163, 168-169, 116 n. 3, 511 P.2d 1223, 1225-1226, n. 3 117 (1973) (en banc); see Or.Rev.Stat. 118 § 133.693 (1977). 119 Utah: State V. Bankhead, 30 Utah 2d 135, 1 8, 514 P.2d 800, 802 (1973); see 120 Utah Code Ann. §§ 77-54-17, 77-54- 121 18 (1953). 122 Two other States are more doubtful, but seem to allow veracity challenges: 123 Michigan: People v. Burt, 236 Mich. 62, 74, 210 124 N.W. 97, 101 (1926). 125 New Mexico: State V. Baca, 84 N.M. 513, 515, 505 126 P.2d 856, 858 (1973) (dictum). 127 The following States have disposed of particular veracity challenges on the ground the affidavits were in fact not false, or that any misstatements were immaterial or unintentional or were not by the affiant himself: 128 Florida: McDougall v. State, 316 So.2d 624, 129 625 (Dist.Ct.App.1975). 130 Georgia: Williams v. State, 232 Ga. 213, 213- 214, 205 S.E.2d 859, 860 (1974); Lee 131 v. State, 239 Ga. 769, 773-774, 238 132 S.E.2d 852, 856 (1977); Birge v. 133 State, 143 Ga.App. 632, 633, 239 S.E. 134 2d 395, 397 (1977). 135 Indiana: Moore v. State, 159 Ind.App. 381, 136 385-386, 307 N.E.2d 92, 94-95 (1974); 137 Grzesiowski v. State, 168 Ind.App. 138 318, 328, 343 N.E.2d 305, 312 (1976); 139 but see Seager v. State, 200 Ind. 579, 140 582, 164 N.E. 274, 275 (1928). 141 Ohio: State v. Dodson, 43 Ohio App.2d 31, 35-36, 332 N.E.2d 371, 374-375 142 (1974). 143 Wisconsin: Scott v. State, 73 Wis.2d 504, 511- 144 512, 243 N.W.2d 215, 219 (1976). 145 Cf. Maine: State v. Koucoules, Me., 343 A.2d 146 860, 865 n. 3 (1974). 147 Eleven States flatly prohibit veracity challenges: 148 Arkansas: Liberto v. State, 248 Ark. 350, 356-357, 451 S.W.2d 149 464, 468 (1970) (alternative holding); cf. Powell 150 v. State, 260 Ark. 381, 383, 540 S.W.2d 1, 2 (1976). 151 Connecticut: State v. Williams, 169 Conn.322,327-329,363 A.2d 152 72 76-77 (1975). 153 Illinois: People v. Bak, 45 Ill.2d 140, 144-146, 258 N.E.2d 154 343-344, cert. denied, 400 U.S. 882, 91 S.Ct. 117, 27 155 L.Ed.2d 121 (1970); People v. Stansberry, 47 Ill.2d 156 541, 544, 268 N.E.2d 431, 433, cert. denied, 404 157 U.S. 873, 92 S.Ct. 121, 30 L.Ed.2d 116 (1971). 158 Kansas: State v. Lamb, 209 Kan. 453, 467-468, 497 P.2d 275, 159 287 (1972); State v. Sanders, 222 Kan. 189, 194-196, 160 563 P.2d 461, 466-467 (alternative holding), cert. 161 denied, 434 U.S. 833, 98 S.Ct. 648, 54 L.Ed.2d 499 162 (1977). 163 Kentucky: Caslin v. Commonwealth, 491 S.W.2d 832, 834 (1973). 164 Maryland: Smith v. State, 191 Md. 329, 334-336, 62 A.2d 287, 165 289-290 (1948), cert. denied, 336 U.S. 925, 69 S.Ct. 166 656, 93 L.Ed. 1087 (1949); Tucker v. State, 244 Md. 167 488, 499-500, 224 A.2d 111, 117-118 (1966), cert. 168 denied, 386 U.S. 1024, 87 S.Ct. 1381, 18 L.Ed.2d 463 169 (1967); Dawson v. State, 11 Md.App. 694, 713-715, 276 170 A.2d 680, 690-691 (1971). 171 Mississippi: Wood v. State, 322 So.2d 462, 465 (1975). 172 New Jersey: State v. Petillo, 61 N.J. 165, 173-179, 293 A.2d 173 649, 653-656 (1972), cert. denied, 410 U.S. 945, 174 93 S.Ct. 1393, 35 L.Ed.2d 611 (1973); but see 61 175 N.J., at 178 N. 1, 293 A.2d, at 656 n. 1. 176 Oklahoma: Brown v. State, 565 P.2d 697 (Crim.App.1977), 177 overruling McCaskey v. State, 534 P.2d 1309,1311-1312 178 (Crim.App.1975), and Henderson v. State, 490 P.2d 179 786, 789 (Crim.App.1971), and reaffirming Gaddis v. 180 State, 447 P.2d 42 (Crim.App.1968). 181 Tennessee: Owens v. State, 217 Tenn. 544, 553, 399 S.W.2d 507, 182 511 (1965): Poole v. State, 4 Tenn.Cr.App. 41, 53-54, 183 467 S.W.2d 826, 832, cert. denied, ibid. (1971). 184 Texas: Phenix v. State, 488 S.W.2d 759, 765 (Crim.App.1972); 185 Oubre v. State, 542 S.W.2d 875, 877 (Crim.App.1976). 186 Two States have prohibited challenges that were directed seemingly against the conclusory nature of the affidavits, rather than their veracity. 187 Missouri: State v. Brugioni, 320 Mo. 202, 206, 7 S.W.2d 262, 188 263 (1928). 189 Rhode Island: State v. Seymour, 46 R.I. 257, 260, 126 A. 755, 756 190 (1924), partially overruled, State v. LeBlanc, 100 191 R.I 523, 528-529, 217 A.2d 471, 474 (1966); but see 192 State v. Cofone, 112 R.I. 760, 766-767, 315 A.2d 752, 193 755-756 (1974). 194 Mr. Justice REHNQUIST, with whom The Chief Justice joins, dissenting. 195 The Court's opinion in this case carefully identifies the factors which militate against the result which it reaches, and emphasizes their weight in attempting to limit the circumstances under which an affidavit supporting a search warrant may be impeached. I am not ultimately persuaded, however, that the Court is correct as a matter of constitutional law that the impeachment of such an affidavit must be permitted under the circumstances described by the Court, and I am thoroughly persuaded that the barriers which the Court believes that it is erecting against misuse of the impeachment process are frail indeed. 196 * The Court's reliance on Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), for the proposition that a determination by a neutral magistrate is a prerequisite to the sufficiency of an application for a warrant is obviously correct. In that case the Court said: 197 "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Id., at 13-14, 68 S.Ct., at 369. 198 The notion that there may be incorrect or even deliberately falsified information presented to a magistrate in the course of an effort to obtain a search warrant does not render the proceeding before a magistrate any different from any other factfinding procedure known to the law. The Court here says that "it would be an unthinkable imposition upon [the magistrate's] authority if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment." Ante, at 165. I do not believe that this flat statement survives careful analysis. 199 If the function of the warrant requirement is to obtain the determination of a neutral magistrate as to whether sufficient grounds have been urged to support the issuance of a warrant, that function is fulfilled at the time the magistrate concludes that the requirement has been met. Like any other determination of a magistrate, of a court, or of countless other factfinding tribunals, the decision may be incorrect as a matter of law. Even if correct, some inaccurate or falsified information may have gone into the making of the determination. But unless we are to exalt as the ne plus ultra of our system of criminal justice the absolute correctness of every factual determination made along the tortuous route from the filing of the complaint or the issuance of an indictment to the final determination that a judgment of conviction was properly obtained, we shall lose perspective as to the purposes of the system as well as of the warrant requirement of the Fourth and Fourteenth Amendments. Much of what Mr. Justice Harlan said in his separate opinion in Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971), with respect to collateral relief from a criminal conviction is likewise applicable to collateral impeachment of a search warrant: 200 "At some point, the criminal process, if it is to function at all, must turn its attention from whether a man ought properly to be incarcerated to how he is to be treated once convicted. If law, criminal or otherwise, is worth having and enforcing, it must at some time provide a definitive answer to the questions litigants present or else it never provides an answer at all. Surely it is an unpleasant task to strip a man of his freedom and subject him to institutional restraints. But this does not mean that in so doing, we should always be halting or tentative. No one, not criminal defendants, n t the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation on issues already resolved. 201 "A rule of law that fails to take account of these finality interests would do more than subvert the criminal process itself. It would also seriously distort the very limited resources society has allocated to the criminal process. While men languish in jail, not uncommonly for over a year, awaiting a first trial on their guilt or innocence, it is not easy to justify expending substantial quantities of the time and energies of judges, prosecutors, and defense lawyers litigating the validity under present law of criminal convictions that were perfectly free from error when made final. [Citation omitted.] This drain on society's resources is compounded by the fact that issuance of the habeas writ compels a State that wishes to continue enforcing its laws against the successful petitioner to relitigate facts buried in the remote past through presentation of witnesses whose memories of the relevant events often have dimmed. This very act of trying stale facts may well, ironically, produce a second trial no more reliable as a matter of getting at the truth than the first." Id., at 690-691, 91 S.Ct., at 1179. 202 I am quite confident that if our system of justice were not administered by judges who were once lawyers, it might well be less satisfactory than it now is. But I am equally confident that one improvement which would manifest itself as a result of such a change would be a willingness, reflected in almost all callings in our society except lawyers, to refrain from constant relitigation, whether in the form of collateral attack, appeal, retrial, or whatever, of issues that have originally been decided by a competent authority. 203 It would be extraordinary troubling in any system of criminal justice if a verdict or finding of guilt, later conclusively shown to be based on false testimony, were to result in the incarceration of the accused notwithstanding this fact. But the Court's reference to the "unthinkable imposition" of not allowing the impeachment of an affiant's testimony in support of a search warrant is a horse of quite another color. Particularly in view of the many hurdles which the prosecution must surmount to ultimately obtain and retain a finding of guilt in the light of the many constitutional safeguards which surround a criminal accused, it is essential to understand the role of a search warrant in the process which may lead to the conviction of such an accused. The warrant issued on impeachable testimony has, by hypothesis, turned up incriminating and admissible evidence to be considered by the jury at the trial. The fact that it was obtained by reason of an impeachable warrant bears not at all on the innocence or guilt of the accused. The only conceivable harm done by such evidence is to the accused's rights under the Fourth and Fourteenth Amendments, which have nothing to do with his guilt or innocence of the crime with which he is charged. 204 Given the definitive exposition of the warrant requirement quoted above from Johnson v. United States, 333 U.S., at 13-14, 68 S.Ct., at 369, it seems to me it would be quite reasonable for this Court, consistently with the Fourth and Fourteenth Amendments, to adopt any one of three positions with respect to the impeachability of a search warrant which had been in fact issued by a neutral magistrate who satisfied the requirements of Shadwick v. Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972). 205 First, it could decide that the warrant requirement was satisfied when such a magistrate had been persuaded, and allow no further collateral attack on the warrant. In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the Court in reliance on Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), a case concededly decided pursuant to Fed.Rule Crim.Proc. 4, nonetheless held that the determination by a magistrate that the affidavit submitted to him made out "probable cause" for purposes of the Fourth and Fourteenth Amendments was subject to later judicial review as to the sufficiency of the affidavit. This rule was later reaffirmed in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The Court has thus for more than a decade rejected the first possible stopping place in judicial re-examination of affidavits in support of warrants, and held that the legal determination as to probable cause was subject to collateral attack. While this conclusion does not seem to me to flow inexorably from the Fourth Amendment, I think that it makes a good deal of sense in light of the fact that a magistrate need not be a trained lawyer, see Shadwick, supra, and therefore may not be versed in the latest nuances of what is or what is not "probable cause" for purposes of the Fourth Amendment. 206 But to allow collateral examination of an affidavit in support of a warrant on a legal ground such as that is quite different from the rejection of the second possible stopping place as the Court does today. Magistrates need not be lawyers, but lawyers have no monopoly on determining whether or not an affiant who appears before them is or is not telling the truth. Indeed, a magistrate whose time may be principally spent in conducting preliminary hearings and trying petty offenses may have every bit as good a feel for the veracity of a particular witness as a judge of a court of general jurisdiction. 207 True, a warrant is issued ex parte, without an opportunity for the person whose effects are to be seized to impeach the testimony of the affiant. The proceeding leading to the issuance of a warrant is, therefore, obviously less reliable and less likely to be a searching inquiry into the truth of the affiant's statements than is a full-dress adversary proceeding. But it is at this point that I part company with the Court in its underlying assumption that somehow a full-dress adversary proceeding will virtually guarantee a truthful answer to the question of whether or not the affiant seeking the warrant falsified his testimony. A full-dress adversary proceeding is undoubtedly a better vehicle than an ex parte proceeding for arriving at the truth of any particular inquiry, but it is scarcely a guarantee of truth. Mr. Justice Jackson in his opinion concurring in the result in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), observed with respect to purely legal issues decided by this Court: 208 "However, reversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final." Id., at 540, 73 S.Ct., at 427. 209 The same is surely true of a judge's review of the factual determinations of a magistrate; a larger percentage of the judge's findings as to the truth of an affiant's statement may be objectively correct than the percentage of the magistrate's determinations which are, but neither one is going to be 100 percent. Since once the warrant is issued and the search is made, the privacy interest protected by the Fourth and Fourteenth Amendments is breached, a subsequent determination that it was wrongfully breached cannot possibly restore the privacy interest. See United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Since the evidence obtained pursuant to the warrant is by hypothesis relevant and admissible on the issue of guilt, the only purpose served by suppression of such evidence is deterrence of falsified testimony on the part of affiant in the future. Without attempting to summarize the many cases in which his Court has discussed the balance to be struck in such situations, see United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), I simply do not think the game is worth the candle in this situation. 210 As the Court's opinion points out, the other jurisdictions which have considered this question are divided, although a majority of them favor the result reached by the Court today. The signed articles and student law review notes which the Court refers to in its opinion are not there, I trust, to be considered en bloc or by some process of counting without weighing. Presumably, to the extent that their reasoning commends itself to the courts which are committed to decide these questions, that reasoning will find its way into the opinions of those courts; to the extent that the reasoning does not so commend itself, the piece containing the reasoning does not weigh in the scales of decision simply because it appeared in a periodical devoted to the discussion of legal questions. II 211 The Court has commendably, in my opinion, surrounded the right to impeach the affidavit relied upon to support the issuance of a warrant with numerous limitations. My fear, and I do not think it an unjustified one, is that these limitations will quickly be subverted in actual practice. The Court states: 212 "Nor, if a sensible threshold showing is required and sensible substantive requirements for suppression are maintained, need there be any new large-scale commitment of judicial resources; many claims will wash out at an early stage, and the more substantial ones in any event would require judicial resources for vindication if the suggested alternative sanctions were truly to be effective. The requirement of a substantial preliminary showing should suffice to prevent the misuse of a veracity hearing for purposes of discovery or obstruction." Ante, at 170. 213 I greatly fear that this generalized language will afford insufficient protection against the natural tendency of ingenious lawyers charged with representing their client's cause to ceaselessly undermine the limitations which the Court has placed on impeachment of the affidavit offered in support of a search warrant. I am sure that the Court is sincere in its expressed hope that the doctrine which it adopts will not lead to "any new large-scale commitment of judicial resources," but in the end I am led once more to echo the observation contained in another opinion of Mr. Justice Jackson: 214 "The case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron's reports, 'whispering "I will ne'er consent,"—consented.' " Everson v. Board of Education, 330 U.S. 1, 19, 67 S.Ct. 504, 513, 91 L.Ed. 711 (1947) (dissenting opinion). 215 Since I would not "consent" even to the extent that the Court does in its opinion, I dissent from that opinion and would affirm the judgment of the Supreme Court of Delaware. 1 The affidavit is reproduced as Appendix A to this opinion. Post, at 172. 2 The references in paragraphs 15 and 16 of the warrant affidavit's probable-cause page to "James Williams" appear to have been intended as references to James D. Morrison, who was petitioner's supervisor at the Youth Center. Tr. 269. This misapprehension on the part of the State continued until shortly before trial. Eleven days prior to trial, the prosecution requested the Clerk of the Kent County Superior Court to summon "James Williams, Delaware Youth Center," for petitioner's trial. In his return on the summons, Record Doc. No. 16, the Kent County Sheriff stated that he "[s]erved the within summons upon . . . James Wil iams (Morrison)." The summons actually delivered was made out in the name of James Morrison. 3 It appears this is no longer the majority rule among the States. Compare Comment, 7 Seton Hall L.Rev. 827, 844 (1976) (about half of the States have addressed the issue, and the weight of authority is "slightly in favor" of permitting veracity challenges), with North Carolina v. Wrenn, 417 U.S. 973, 94 S.Ct. 3180, 41 L.Ed.2d 1144 (1974) (WHITE, J., dissenting from denial of certiorari) (majority of state decisions prohibit subsequent impeachment of an affidavit). By our count, 19 States, and perhaps as many as 21, permit veracity challenges; 5 of these apparently rely on statutory provisions in so holding. Five States have disposed of particular veracity challenges on the ground there was no misstatement, or that any misstatement was immaterial or unintentional, without opining what would be done when there is a deliberate and material misrepresentation. There are now only 11 States that prohibit veracity challenges outright. Another two have barred impeachment challenges that seemed directed at the conclusory nature of affidavit allegations rather than at their veracity. The case law is detailed in Appendix B. Post, at 176. 4 This reasoning is misplaced. The Federal Courts of Appeals decisions allowing a defendant to challenge the veracity of a warrant affidavit rest on a constitutional footing. See United States v. Belculfine, 508 F.2d 58, 61, 63 (CA1 1974); United States v. Dunnings, 425 F.2d 836, 839-840 (CA2 1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412 (1970); United States v. Armocida, 515 F.2d 29, 41 (CA3), cert. denied sub nom. Gazal v. United States, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 84 (1975); United States v. Lee, 540 F.2d 1205, 1208-1209 (CA4), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976); United States v. Thomas, 489 F.2d 664, 668, 671 (CA5 1973), cert. denied, 423 U.S. 844, 96 S.Ct. 79, 46 L.Ed.2d 64 (1975); United States v. Luna, 525 F.2d 4, 8 (CA6 1975), cert. denied, 424 U.S. 965, 96 S.Ct. 1459, 47 L.Ed.2d 732 (1976); United States v. Carmichael, 489 F.2d 983, 988-989 (CA7 1973) (en banc); United States v. Marihart, 492 F.2d 897, 898 (CA8), cert. denied, 419 U.S. 827, 95 S.Ct. 46, 42 L.Ed.2d 51 (1974); United States v. Damitz, 495 F.2d 50, 54-56 (CA9 1974); United States v. Harwood, 470 F.2d 322, 324-325 (CA10 1972). Of all the Federal Courts of Appeals, only one now apparently refrains from permitting challenges to affidavit veracity. See United States v. Watts, 176 U.S.App.D.C. 314, 317-318 n. 5, 540 F.2d 1093, 1096-1097 n. 5 (1976); United States v. Branch, 178 U.S.App.D.C. 99, 102 n. 2, 545 F.2d 177, 180 n. (1976). 5 Franks did not raise in his petition the issue of his Miranda challenge to the courthouse statement given to police and the use of that statement in the warrant affidavit. The propriety of the trial court's refusal to hear testimony on that subject is therefore not before us. It also appears that Franks did not take that issue to the Supreme Court of Delaware. See Opening Brief for Appellant, No. 259, 1976 (Del.Sup.Ct.). 6 The Rugendorf affidavit, sworn to by FBI Special Agent Moore, contained two alleged inaccuracies: a double hearsay statement that petitioner Samuel Rugendorf was the manager of Rugendorf Brothers Meat Market, and a double hearsay statement that he was associated with his brother, Leo, in the meat business. As to the second, the af idavit stated that a confidential informant told FBI Special Agent McCormick about the Rugendorf brothers' association, and McCormick told affiant Moore. As to the first, the affidavit stated that the information was given by Chicago Police Officer Kelleher to Special Agent McCormick, who in turn relayed it to affiant Moore. Kelleher testified that he did not so inform McCormick, but the petitioner in Rugendorf had failed to pursue the discrepancy: He did not seek a deposition from McCormick, who was in the hospital at the time of trial, and did not seek a postponement to enable McCormick to be present. 376 U.S., at 533 n. 4, 85 S.Ct., at 828. In characterizing the affidavit in Rugendorf as raising no question of integrity, the Court took as its premise that police could not insulate one officer's deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity. 7 Mascolo, Impeaching the Credibility of Affidavits for Search Warrants: Piercing the Presumption of Validity, 44 Conn.Bar J. 9, 19, 25-28 (1970); Kipperman, Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 84 Harv.L.Rev. 825, 830-832 (1971); Grano, A Dilemma for Defense Counsel: Spinelli-Harris Search Warrants and the Possibility of Police Perjury, 1971 U.Ill.Law Forum 405, 456; Forkosh, The Constitutional Right to Challenge the Content of Affidavits in Warrants Issued Under the Fourth Amendment, 34 Ohio St.L.J. 297, 306, 308, 340 (1973); Sevilla, The Exclusionary Rule and Police Perjury, 11 San Diego L.Rev. 839, 869 (1974); Herman, Warrants for Arrest or Search: Impeaching the Allegations of a Facially Sufficient Affidavit, 36 Ohio St.L.J. 721, 738-739, 750 (1975); Note, 15 Buffalo L.Rev. 712, 716-717 (1966); Note, 51 Cornell L.Q. 822, 825-826 (1966); Note, 34 Ford.L.Rev. 740, 745 (1966); Note, 67 Colum.L.Rev. 1529, 1530-1531 (1967); Comment, 19 U.C.L.A. L.Rev. 96, 108, 146 (1971); Comment, 63 J.Crim.L., C.&P.S. 41, 48, 50 (1972); Note, 23 Drake L.Rev. 623, 638-639 (1974); Comment, 7 Seton Hall L.Rev. 827, 859-860 (1976). 8 Petitioner conceded that if what is left is sufficient to sustain probable cause, the inaccuracies are irrelevant. Tr. of Oral Arg. 3, 13. Petitioner also conceded that if the warrant affiant had no reason to believe the information was false, there was no violation of the Fourth Amendment. Id., at 16-17.

01

438 U.S. 190 98 S.Ct. 2692 57 L.Ed.2d 693 H. W. BERRY et al.v.J. D. DOLES, etc., et al. No. 76-1690. June 26, 1978. PER CURIAM. 1 This appeal presents a challenge to the scope of the remedy allowed by a three-judge District Court for the Middle District of Georgia for failure of appellees to comply with the approval provisions of § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S.C. § 1973c (1970 ed., Supp. V). 2 In 1968, the State of Georgia enacted a statute intended to stagger the terms of the three members of the Peach County Board of Commissioners of Roads and Revenues. The then-existing statute, adopted in 1964, provided that all three posts were to be filled at four-year intervals. By operation of the 1968 amendment, the single at-large member was to be elected to a two-year term in 1968 and to a four-year term at subsequent general elections. Appellees concede, and the three-judge court f und, that the 1968 statute constituted a change in voting procedures subject to the provisions of § 5 and that the change had been implemented without first having been submitted for approval either to the United States District Court for the District of Columbia or to the Attorney General as required by § 5. 3 Four days prior to the August 10, 1976, primary election for the two seats on the Board not including the at-large post, appellants filed this action to enforce the requirements of § 5. Appellants' requests for declaratory and injunctive relief were not acted upon until after the scheduled 1976 primary and general elections. 4 On February 28, 1977, the three-judge court, without a hearing, enjoined further enforcement of the 1968 statute until such time as appellees effected compliance with § 5. However, the District Court refused appellants' request to set aside the 1976 elections, noting "the rather technical changes made in the county's election law by the 1968 amendment and, more important, the apparent lack of any discriminatory purpose or effect surrounding the use of the law in the 1976 elections." In expressly limiting its order to prospective relief, the District Court also relied on our decision in Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). 5 On April 26, 1977, the three-judge court denied appellants' motion for reconsideration. 6 In this Court, appellants take the position that the relief awarded in this case is wholly inadequate in failing to remedy the existing § 5 violation. Appellants assert that by refusing either to set aside the 1976 election or to order that all three Board members be elected in 1978, the District Court, at least until the 1980 election, leaves undisturbed the effects of the § 5 violation, thereby acknowledging that, at least for a time, local officials may successfully disregard § 5 requirements. 7 Appellees urge us to affirm the District Court judgment on grounds that the 1976 election involved the two Board posts which were not mentioned in the 1968 statute. Accordingly, appellees argue, election to these posts is not subject to § 5. However, even assuming that the District Court had the power to effect one of the alternative remedies suggested by appellants, appellees believe that the court below was correct in refusing to do so. 8 At our request, the United States, as amicus curiae, has filed a brief in this case. The Government takes the view, espoused by appellants, that the 1976 election was affected by the voting change prescribed in the 1968 statute and that the District Court's failure to require prompt compliance with § 5 permits the violation to continue. It is the submission of the United States that the question whether the staggering of Board terms provided for by state statute in this case necessarily has a racially discriminatory effect should properly be promptly submitted to either the District Court for the District of Columbia or to the Attorney General in conformity with the approval procedures set forth in § 5. 9 In Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971), decided after Allen, supra, we had occasion to address the remedy issue which now confronts us. We indicated in that case that "[i]n certain circumstances . . . it might be appropriate to enter an order affording local officials an opportunity to seek federal approval and ordering a new election only if local officials fail to do so or if the required federal approval is not forthcoming." 400 U.S., at 396-397, 91 S.Ct., at 441. The circumstances present here make such a course appropriate. 10 In this case, appellees' undisputed obligation to submit the 1968 voting law change to a forum designated by Congress has not been discharged. We conclude that the requirement of federal scrutiny imposed by § 5 should be satisfied by appellees without further delay. Accordingly, we adopt the suggestion of the United States that the District Court shoul enter an order allowing appellees 30 days within which to apply for approval of the 1968 voting change under § 5. If approval is obtained, the matter will be at an end. If approval is denied, appellants are free to renew to the District Court their request for simultaneous election of all members of the Board at the 1978 general election. 11 The judgment of the District Court is affirmed insofar as it holds that appellees have violated the approval provisions of § 5 of the Voting Rights Act; the judgment is reversed insofar as it denies affirmative relief, and the case is remanded to the District Court with instructions to issue an order allowing appellees 30 days within which to apply for approval of the 1968 voting change under § 5, and for further proceedings consistent with this opinion. 12 It is so ordered. 13 Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, concurring. 14 I join the Court's opinion. The Court is surely correct that the District Court committed reversible error by not, at the very least, ordering the Peach County officials to seek preclearance of the voting change enforced in the 1976 election and affording appellants the opportunity, if prior approval is not granted, to seek an order that would cut short the terms of the two Commissioners elected in 1976 and require a new election under the pre-1968 law. The District Court manifestly erred in refusing to order such relief on the basis of its conclusion that the change was "rather technical" with no "apparent discriminatory purpose or effect." Nothing could be clearer than that a district court other, of course, than the District Court for the District of Columbia—has no jurisdiction to assess the purpose or effect of any voting change. See, e. g., United States v. Board of Supervisors, 429 U.S. 642, 97 S.Ct. 833, 51 L.Ed.2d 106 (1977); Perkins v. Matthews, 400 U.S. 379, 385, 91 S.Ct. 431, 435, 27 L.Ed.2d 476 (1971). 15 Although the Court does not reach this issue, I think it clear that, if the Peach County officials do not hereafter obtain federal preclearance for the 1968 change, the District Court must order a new election for all three posts at the earliest feasible time—that here being the regularly scheduled 1978 election. For if a designated federal entity cannot hereafter approve the 1968 voting change as racially neutral, it follows necessarily that there is a substantial probability that the 1976 election itself perpetrated racial discrimination in voting. To permit the results of the 1976 election to stand in the face of such a determination would be to do precisely what § 5 was designed to forbid: allow the burdens of litigation and delay to operate in favor of the perpetrators and against the victims of possibly racially discriminatory practices. See South Carolina v. Katzenbach, 383 U.S. 301, 335, 86 S.Ct. 803, 822, 15 L.Ed.2d 769 (1966). 16 However, while I, therefore, agree that the District Court committed reversible error, I am also of the view that, in the circumstances of this case, a strong argument can be made that, whether or not preclearance can be obtained, the only sufficient remedy is to set aside the 1976 election and order a new election under the pre-1968 law. Here, the Peach County officials could not have reasonably believed at the time of the 1976 election that the 1968 voting change could continue to be validly enforced without obtaining prior federal approval; thus the situation is quite different from that present in cases like Perkins v. Matthews, supra, where the scope of the § 5 duty had been unsettled at the time of the election that was under attack. 17 If, in cases like the present one, the remedy of ordering a new election is not to be required in all cases, the political units covered by § 5 may have a positive incentive flagrantly to disregard their clear obligations and not to seek preclearance of proposed voting changes. For covered jurisdictions will then know that a § 5 violation, if a suit is brough , can only result in their being denied the right to continue to enforce those voting changes that could not have received federal approval in the first place. As to all other voting changes, the sole effect of a suit for noncompliance with the approval provisions will be the limited sanction of requiring the political unit to obtain the federal approval which it should have received before any change was instituted. 18 The legislative background of § 5 strongly suggests to me that Congress expressly intended to preclude such a state of affairs. Section 5, of course, was intended to prevent those States which had a history of racial discrimination in voting from adhering to their long-established practices of continually contriving new laws to deprive blacks of any newly won voting rights. Congress sought to place the burden of inertia and litigation delay on the perpetrators of the discrimination by requiring affected States voluntarily to submit any new law affecting voting for federal approval before it became effective. The remedial theory the Court embraces today may retard, not further, the objective of having polities voluntarily comply with § 5, for a possible consequence may well be that a very large share of the burden of implementing federal policy will be placed on public and private enforcement. We ought to have the benefit of full briefing and oral argument to help indicate whether this will be the case. 19 I do not regard Perkins v. Matthews, supra, as necessarily supporting the Court's decision. While it is true that the Court there stated that there might be circumstances in which it would be appropriate to order a new election only if federal approval for the voting change were not procured within a specified time period, 400 U.S., at 396, 91 S.Ct., at 440, the context of this statement clearly suggests that it is intended to apply only to cases in which it had not been reasonably clear at the time of the election that the change was covered by § 5. Ibid.* 20 However, since there is no disposition on the part of my colleagues to note probable jurisdiction and set the case down for oral argument, I join the Court's opinion. 21 Mr. Justice POWELL, concurring in the judgment. 22 Although I believe that the wiser course would be simply to affirm the judgment below, I go along reluctantly with the Court's resolution of this case rather than bring it here for argument. I am willing to do this only because I consider it most unlikely that the Attorney General could find any reasoned basis for denying approval of the change at issue in this case. Thus, it is improbable that the court below ever will have to pass on the request to cut short the terms of the two Commissioners elected in 1976 which the Court allows appellants to "renew" if the change is not approved. Ante, at 193. I write to emphasize my view that the three-judge court cannot be faulted for its common-sense handling of this case. I do not understand the Court to disagree with this view. 23 * The facts and procedural posture of this case deserve a fuller treatment than the Court gives them. Under a state law enacted in 1964, the Board of Commissioners of Roads and Revenues for Peach County, Ga., is composed of three members, assigned to numbered posts. 1964 Ga.Laws No. 800, § 1, p. 2627. Posts 1 and 2 are filled by residents of designated districts, and Post 3 is elected at large. Until 1968, all three posts were elected simultaneously for four-year terms. In 1968, the Georgia Legislature enacted a statute providing for a partial staggering of the Commissio ers' terms. 1968 Ga.Laws No. 800, § 2A, p. 2473. Under the statute, Post 3, the at-large seat, was to be elected to a two-year term in 1968, and thereafter to four-year terms. No change was made in the terms of the other two Commissioners. The result is that the election for Post 3 no longer is held at the same time as the election for the other two posts.1 24 Elections were held under the amendment in 1968, 1970, 1972, and 1974 without challenge. It was only on August 6, 1976—four days before the 1976 primary election—that appellants filed this lawsuit seeking to enjoin that election and the general election on the ground that the amendment had not received the imprimatur of the Attorney General or the District Court for the District of Columbia as required by § 5 of the Voting Rights Act of 1965. A single judge of the District Court, acting promptly, ruled on appellants' motion for a preliminary injunction before the primary election was held. That judge, "seriously question[ing]" whether the change even was covered by § 5, and apparently in view of the tardiness of the suit—which to this day has not been explained sensibly refused to enjoin the election. App. to Jurisdictional Statement 7a. 25 After the 1976 primary and general elections for Posts 1 and 2 had been held, a three-judge District Court was convened. That court concluded that the 1968 amendment was subject to the preclearance requirements of § 5 after all, and it enjoined enforcement of the 1968 amendment until those requirements had been met. "Given the rather technical changes made in the county's election law by the 1968 amendment and, more important, the apparent lack of any discriminatory purpose or effect surrounding the use of the law in the 1976 elections," however, the court denied appellants' request to set aside those elections. Id., at 2a-3a, citing Allen v. State Board of Elections, 393 U.S. 544, 571-572, 89 S.Ct. 817, 835, 22 L.Ed.2d 1 (1969).2 The three-judge court thereupon "dissolve[d] itself and remand[ed] the case to the originating judge for such other and further proceedings consistent with this opinion as may be required." App. to Jurisdictional Statement 4a. 26 Appellants then filed a motion for reconsideration and modification of the three-judge court's order. In this motion appellants—for the first time—asked the three-judge court to order that all three posts stand for election in 1978 if the change was not approved by then, thus cutting short the terms of the two Commissioners elected in 1976. See Jurisdictional Statement 7 n. 1, 15-16; Brief for United States as Amicus Curiae 4. The three-judge court refused to consider this belated request, stating: "The problem of relief is a question for a single-judge court." App. to Jurisdictional Statement 5a. Appellants, however, did not accept this clear invitation to press their request before a single-judge court. 27 Instead, they brought the instant appeal, urging the Court either to set aside the 1976 elections, or to cut short the terms of the two Commissioners elected in 1976 by declaring all three posts open in 1978. The United States as amicus curiae does not support appellants' request that the 1976 election be set aside. Neither does it support appellants' request that the Court declare all three posts open in 1978. Instead, it seeks relief that appellants never have requested, either in the court below or in this Court. It asks the Court to enter an order directing the District Court to give appellees 30 days within which to seek § 5 preclearance. If preclearance is not sought or if the change is not approved, the United States then argues that the District Court should be directed to allow appellants "to renew their request for election of all three members at the same time." Brief for United States as Amicus Curiae 8. The United States, like the Court today, see n. 7, infra, carefully takes no position on whether the District Court should grant such further relief if this request is "renewed." 28 In my view, the Court would be fully justified in holding that the United States, which is not a party to this suit and did not participate in the court below, is barred from injecting a new issue into the case by requesting the Court to grant relief that appellants themselves never have sought. It would be equally justified in holding that appellants are barred from asking the Court to declare all three posts open in 1978 after the three-judge court declined to rule on this belated request and after appellants ignored that court's express invitation to press their request before a single-judge court. As a general rule, this Court does not and should not allow parties or amici to raise issues here that were not raised in or ruled upon by the lower courts. Neither should this Court encourage parties to bypass avenues of relief that are open to them in the lower courts. The facts that the case is a Voting Rights Act case, and that the amicus is the United States, provide no justification for departing from these salutary principles. II 29 Since the Court has chosen, without explanation, to depart from these principles, I briefly address the question of relief that is presented. Appellees do not challenge the three-judge court's holding that § 5, as it has been expanded by judicial decision since enactment of the 1968 amendment at issue here, requires preclearance of that amendment. Nor do they challenge that court's entry of an injunction against enforcing the amendment in future elections until the change is approved. All they ask is that if the change is not approved, such a ruling should not be applied retroactively to abrogate the result of elections already held. In my view, there is much force to their plea. 30 This case is a classic example of how § 5, enacted to further the exercise of an important constitutional right, has been judicially expanded to cover the most inconsequential change in any aspect of election procedure.3 Given this expansion, when courts are called upon to decide whether to grant retroactive relief, they should distinguish the minor or technical change from the substantive change that is likely to result in discrimination. In refusing to set aside the 1976 election, the three-judge court, much to its credit, did just this. Significantly, the Court today does not disturb that judgment, despite appellants' prayer that it do so.4 31 It must be remembered that the Voting Rights Act imposes restrictions unique in the history of our country on a limited number of selected States.5 The need to bring a measure of common sense to its application is underscored further by the fact that state and local officials now are supplicants for the Attorney General's dispensation of approval under § 5 "at the rate of over 1,000 per year, and this rate is by no means indicative of the number of submissions involved if all covered States and political units fully complied with the preclearance requirement, as interpreted by the Attorney General." United States v. Sheffield Board of Comm'rs, 435 U.S. 110, 147, 98 S.Ct. 965, 987, 55 L.Ed.2d 148 (1978) (STEVENS, J., dissenting) (footnote omitted). When a change is submitted, the Attorney General may block its implementation simply by stating, within 60 days, that he is unable to conclude that it does not have discriminatory purpose or effect. Georgia v. United States, 411 U.S. 526, 537, 93 S.Ct. 1702, 1709, 36 L.Ed.2d 472 (1973). As a result, "the State may be left more or less at sea," id., at 544, 93 S.Ct., at 1712 (WHITE, J., dissenting), unable to put into effect such routine and trivial changes as the movement of a polling place or a precinct boundary line.6 32 Thus, although I agree with the Court that the three-judge court did not err in refusing to set aside the 1976 elections, I remain dubious as to whether it would be any more proper for that court to order all three posts to stand for election in 1978 if the change is not approved. As the Court's order is framed, however, this question still is open in the District Court if the change is not approved.7 Perhaps that court will be able to perceive some distinction that is not apparent to me between setting aside the 1976 elections—the denial of which relief this Court upholds—and achieving essentially the same result by cutting short the terms of the two Commissioners elected in 1976 by ordering all three posts to stand for election in 1978. Because I consider it unlikely that the three-judge court ever will have to face this question, I acquiesce in the disposition of the Court remanding "with instructions to issue an order allowing appellees 30 days within which to apply for approval of the 1968 voting change under § 5, and for further proceedings consistent with [the Court's] opinion." Ante, at 193. 33 Mr. Justice REHNQUIST, with whom Mr. Justice STEVENS joins, dissenting. 34 No party to this case has requested this Court to issue an order requiring or allowing appellees to apply for approval of the 1968 voting change under § 5 of the Voting Rights Act of 1965. The United States, when requested by this Court to express its views, made such a request. But the United States is only an amicus curiae in this case, and it has no standing to request relief which has never been requested by the parties. The opinion of the Court goes not merely beyond the scope of any relief sought from the District Court, but also decides questions beyond those presented in the jurisdictional statement of appellants. In so doing, of course, the opinion is contrary to our Rule 15, which provides: "Only the questions set forth in the jurisdictional statement or fairly comprised therein will be considered by the court." 35 I would affirm the judgment of the District Court in its entirety. * I recognize that the case involves a voting change first implemented in 1968. This fact does not, however, necessarily support the Court's decision. Since the duty to comply with § 5 is a continuing one and applied to Peach County's enforcement of the 1968 change in the 1976 election, a strong argument can be made that the only relevant consideration should be that the § 5 duty was clear in 1976. 1 It should be noted that the amendment was enacted before this Court, by judicial interpretation, extended the coverage of the Voting Rights Act of 1965, in, e. g., Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), and Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971). Thus, when the amendment was enacted, there was no reason to suspect that § 5 preclearance was required. 2 In giving only prospective effect to its decision in Allen, the Court took into account the fact that "the discriminatory purpose or effect of [the challenged] statutes, if any, has not been determined by any court." 393 U.S., at 572, 89 S.Ct., at 835. 3 In Perkins v. Matthews, supra, the Court held that, "§ 5 requires prior submission of any changes in the location of polling places." Id., at 388, 91 S.Ct., at 437. There are thousands of precincts and polling places in the jurisdictions covered by the Act, and changes in precinct boundary lines and polling places are necessary at frequent intervals to accommodate inevitable population shifts. But under the Court's interpretation of the Act, a locality that moves a single precinct line or polling place half a block is required first to obtain permission from Washington. 4 The Court thus rejects Mr. Justice BRENNAN's suggestion, ante, at 193, that the District Court "erred in refusing to order [retroactive] relief on the basis of its conclusion that the change was 'rather technical' with no 'apparent discriminatory purpose or effect.' " See al o Allen v. State Board of Elections, 393 U.S., at 572, 89 S.Ct., at 835, 22 L.Ed.2d 1 (1969), quoted in n. 2, supra; Perkins v. Matthews, 400 U.S., at 396, 91 S.Ct., at 440. 5 As Mr. Justice STEVENS recently has written: "[The] so-called 'preclearance' requirement is one of the most extraordinary remedial provisions in an Act noted for its broad remedies. Even the Department of Justice has described it as a 'substantial departure . . . from ordinary concepts of our federal system'; its encroachment on state sovereignty is significant and undeniable." United States v. Sheffield Board of Comm'rs, 435 U.S. 110, 141, 98 S.Ct. 965, 984, 55 L.Ed.2d 148 (1978) (dissenting opinion) (footnote omitted). Mr. Justice Harlan made much the same point by describing § 5 as "a revolutionary innovation in American government" which applies only to "a handful of States." Allen v. State Board of Elections, supra, 393 U.S., at 585, 586, 89 S.Ct., at 841 (concurring in part and dissenting in part). 6 One would like to assume that the Attorney General exercises this unprecedented power to veto state and local legislation personally and with the most thoughtful deliberation. But, as previously noted, applications for his dispensation flow to Washington at a rate of over 1,000 per year—almost 4 per business day. Even if the Attorney General had no duties other than those imposed upon him by § 5, one might doubt whether it would be possible for him to pass judgment, with care and sensitivity, upon each change in election laws or procedure submitted for his approval. 7 The Court "adopt[s] the suggestion of the United States that the District Court should enter an order allowing appellees 30 days within which to apply for approval of the 1968 voting change under § 5. . . . If approval is denied, appellants are free to renew to the District Court their request for simultaneous election of all members of the Board at the 1978 general election." Ante, at 192-193. It then remands the case "to the District Court with instructions to issue an order allowing appellees 30 days within which to apply for approval of the 1968 voting change under § 5, and for further proceedings consistent with this opinion." Ante, at 193. But the Court does not direct the District Court to grant any "renewed" request that appellants may make. All that it orders is that the District Court allow appellees 30 days within which to seek preclearance and allow appellants to "renew" their request for simultaneous elections in 1978 if the change is not approved.

12

438 U.S. 189 98 S.Ct. 3116 57 L.Ed.2d 704 Herbert H. McADAMS, III, as Executor of the Estate of John L. McClellan, et al., Petitioners,v.Alan McSURELY et ux No. 76-1621 Supreme Court of the United States June 26, 1978 On writ of 1 certiorari to the United States Court of Appeals for the District of Columbia Circuit. 2 PER CURIAM. The writ of certiorari is dismissed as improvidently granted.

89

438 U.S. 41 98 S.Ct. 2610 57 L.Ed.2d 582 UNITED STATES, Petitioner,v.Ted R. GRAYSON. No. 76-1572. Argued Feb. 22, 1978. Decided June 26, 1978. Syllabus A sentencing judge, in fixing the sentence of a defendant within statutory limits, may consider the defendant's false testimony observed by the judge during the trial. Pp. 45-55. (a) A defenda t's truthfulness or mendacity while testifying on his own behalf is probative of his attitudes toward society and prospects for rehabilitation, and is thus a relevant factor in the sentencing process. Pp. 50-51. (b) Taking into account a defendant's false testimony does not constitute punishment for the crime of perjury for which the defendant has not been indicted, tried, or convicted by due process; rather, it is an attempt rationally to exercise judicial discretion by evaluating the defendant's personality and prospects for rehabilitation. To the extent that a sentencing judge is precluded from relying on relevant information concerning "every aspect of a defendant's life," Williams v. New York, 337 U.S. 241, 250, 69 S.Ct. 1079, 1084, 93 L.Ed. 1337, the effort to appraise character degenerates into a game of chance. Pp. 53-54. (c) Judicial consideration of the defendant's conduct during trial does not impermissibly "chill" his constitutional right to testify in his own behalf, for the right guaranteed to a defendant is the right to testify truthfully in accordance with his oath. A sentencing judge, however, is not required automatically to enhance the sentence of a defendant who falsely testifies but, rather, the judge is authorized where he determines that the testimony is willfully and materially false to assess the defendant's rehabilitation prospects in light of that and all the other knowledge gained about the defendant. Pp. 54-55. 550 F.2d 103, 3 Cir., reversed and remanded. Sol. Gen. Wade H. McCree, Jr., Washington, D.C., for petitioner. John M. Humphrey, Williamsport, Pa., for respondent. Mr. Chief Justice BURGER delivered the opinion of the Court. 1 We granted certiorari to review a holding of the Court of Appeals that it was improper for a sentencing judge, in fixing the sentence within the statutory limits, to give consideration to the defendant's false testimony observed by the judge during the trial. 2 * In August 1975, respondent Grayson was confined in a federal prison camp under a conviction for distributing a controlled substance. In October, he escaped but was apprehended two days later by FBI agents in New York City. He was indicted for prison escape in violation of 18 U.S.C. § 751(a) (1976 ed.). 3 During its case in chief, the United States proved the essential elements of the crime, including his lawful confinement and the unlawful escape. In addition, it presented the testimony of the arresting FBI agents that Grayson, upon being apprehended, denied his true identity. 4 Grayson testified in his own defense. He admitted leaving the camp but asserted that he did so out of fear: "I had just been threatened with a large stick with a nail protruding through it by an inmate that was serving time at Allenwood, and I was scared, and I just ran." He testified that the threat was made in the presence of many inmates by prisoner Barnes who sought to enforce collection of a gambling debt and followed other threats and physical assaults made for the same purpose. Grayson called one inmate, who testified: "I heard[Barnes] talk to Grayson in a loud voice one day, but that's all. I never seen no harm, no hands or no shuffling whatsoever." 5 Grayson's version of the facts was contradicted by the Government's rebuttal evidence and by cross-examination on crucial aspects of his story. For example, Grayson stated that after crossing the prison fence he left his prison jacket by the side of the road. On recross, he stated that he also left his prison shirt but not his trousers. Government testimony showed that on the morning after the escape, a shirt marked with Grayson's number, a jacket, and a pair of prison trousers were found outside a hole in the prison fence.1 Grayson also testified on cross-examination: "I do believe that I phrased the rhetorical question to Captain Kurd, who was in charge of [the prison], and I think I said something if an inmate was being threatened by some ody, what would . . . he do? First of all he said he would want to know who it was." On further cross-examination, however, Grayson modified his description of the conversation. Captain Kurd testified that Grayson had never mentioned in any fashion threats from other inmates. Finally, the alleged assailant, Barnes, by then no longer an inmate, testified that Grayson had never owed him any money and that he had never threatened or physically assaulted Grayson. 6 The jury returned a guilty verdict, whereupon the District Judge ordered the United States Probation Office to prepare a presentence report. At the sentencing hearing, the judge stated: 7 "I'm going to give my reasons for sentencing in this case with clarity, because one of the reasons may well be considered by a Court of Appeals to be impermissible; and although I could come into this Court Room and sentence this Defendant to a five-year prison term without any explanation at all, I think it is fair that I give the reasons so that if the Court of Appeals feels that one of the reasons which I am about to enunciate is an improper consideration for a trial judge, then the Court will be in a position to reverse this Court and send the case back for re-sentencing. 8 "In my view a prison sentence is indicated, and the sentence that the Court is going to impose is to deter you, Mr. Grayson, and others who are similarly situated. Secondly, it is my view that your defense was a complete fabrication without the slightest merit whatsoever. I feel it is proper for me to consider that fact in the sentencing, and I will do so." (Emphasis added.) 9 He then sentenced Grayson to a term of two years' imprisonment, consecutive to his unexpired sentence.2 10 On appeal, a divided panel of the Court of Appeals for the Third Circuit directed that Grayson's sentence be vacated and that he be resentenced by the District Court without consideration of false testimony. 550 F.2d 103 (1977). Two judges concluded that this result was mandated by language in a prior decision of the Third Circuit, Poteet v. Fauver, 517 F.2d 393, 395 (1975): "[T]he sentencing judge may not add a penalty because he believes the defendant lied." One judge, in a concurring opinion, suggested that the District Court's reliance on Grayson's false testimony in fixing the sentence "trenches upon a defendant's constitutional privilege to testify in his own behalf as well as his right to have criminal charges," such as one for perjury, formally adjudicated "pursuant to procedures required by due process." 550 F.2d 103, at 108. The dissenting judge challenged both the applicability of Poteet and the suggestion that the District Court's approach to Grayson's sentence was constitutionally impermissible. 11 We granted certiorari to resolve conflicts between holdings of the Courts of Appeals.3 434 U.S. 816, 98 S.Ct. 53, 54 L.Ed.2d 71 (1977). We reverse. II 12 In Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949), Mr. Justice Black observed that the "prevalent modern philosophy of penology [is] that the punishment should fit the offender and not merely the crime," and that, accordingly, sentences should be determined with an eye toward the "[r]eformation and rehabilitation of offenders." Id., at 248, 69 S.Ct., at 1084. But it has not always been so. In the early days of the Republic, when imprisonment had only recently emerged as an alternative to the death penalty, confinement in public stocks, or whipping in the town square, the period of incarceration was generally prescribed with specificity by the legislature. Each crime had its defined punishment. See Report of Twentieth Century Fund Task Force on Criminal Sentencing, Fair and Certain Punishment 83-85 (1976) (Task Force Report). The "excessive rigidity of the [mandatory or fixed sentence] system" soon gave way in some jurisdictions, however, to a scheme permitting the sentencing judge—or jury—to consider aggravating and mitigating circumstances surrounding an offense, and, on that basis, to select a sentence within a range defined by the legislature. Tappan, Sentencing Under the Model Penal Code, 23 Law & Contemp. Prob. 528, 529 (1958). Nevertheless, the focus remained on the crime: Each particular offense was to be punished in proportion to the social harm caused by it and according to the offender's culpability.4 See, e.g., Iowa Code of 1851, Tit. XXIV, ch. 182, §§ 3067, 3068, reprinted in S. Rubin, Law of Criminal Correction 131-132 (2d ed. 1973). The purpose of incarceration remained, primarily, retribution and punishment. 13 Approximately a century ago, a reform movement asserting that the purpose of incarceration, and therefore the guiding consideration in sentencing, should be rehabilitation of the offender,5 dramatically altered the approach to sentencing. A fundamental proposal of this movement was a flexible sentencing system permitting judges and correctional personnel, particularly the latter, to set the release date of prisoners according to informed judgments concerning their potential for, or actual, rehabilitation and their likely recidivism. Task Force Report 82. Indeed, the most extreme formulations of the emerging rehabilitation model, with its "reformatory sentence," posited that "convicts [regardless of the nature of their crime] can never be rightfully imprisoned except upon proof that it is unsafe for themselves and for society to leave them free, and when confined can never be rightfully released until they show themselves fit for membership in a free community." Lewis, The Indeterminate Sentence, 9 Yale L.J. 17, 27 (1899). 14 This extreme formulation, although influential, was not adopted unmodified by any jurisdiction. See Tappan, supra, at 531-533. "The influences of legalism and realism were powerful enough . . . to prevent the enactment of this form of indeterminate sentencing. Concern for personal liberty, skepticism concerning administrative decisions about prisoner reformation and readiness for release, insistence upon the preservation of some measure of deterrent emphasis, and other such factors, undoubtedly, led, instead, to a system—indeed, a complex of systems—in which maximum terms were generally employed." Id., at 530. Thus it is that today the extent of a federal prisoner's confinement is initially determined by the sentencing judge, who selects a term within an often broad, congressionally prescribed range; release on parole is then available on review by the United States Parole Commission, which, as a general rule, may conditionally release a prisoner any time after he serves one-third of the judicially fixed term.6 See 18 U.S.C. § 4205 (1976 ed.). To an unspecified degree,7 the sentencing judge is obligated to make his decision on the basis, among others, of predictions regarding the convicted defendant's potential, or lack of potential, for rehabilitation.8 15 Indeterminate sentencing under the rehabilitation model presented sentencing judges with a serious practical problem: how rationally to make the required predictions so as to avoid capricious and arbitrary sentences, which the newly conferred and broad discretion placed within the realm of possibility. An obvious, although only partial, solution was to provide the judge with as much information as reasonably practical concerning the defendant's "character and propensities[,] . . . his present purposes and tendencies," Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 60, 82 L.Ed. 43 (1937), and, indeed, "every aspect of [his] life." Williams v. New York, 337 U.S., at 250, 69 S.Ct., at 1084. Thus, most jurisdictions provided trained probation officers to conduct presentence investigations of the defendant's life and, on that basis, prepare a presentence report for the sentencing judge.9 16 Constitutional challenges were leveled at judicial reliance on such information, however. In Williams v. New York, a jury convicted the defendant of murder but recommended a life sentence. The sentencing judge, partly on the basis of information not known to the jury but contained in a presentence report, imposed the death penalty. The defendant argued that this procedure deprived him of his federal constitutional right to confront and cross-examine those supplying information to the probation officer and, through him, to the sentencing judge. The Court rejected this argument. It noted that traditionally "a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law." Id., at 246, 69 S.Ct., at 1082. "And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information," id., at 247, 69 S.Ct., at 1083; indeed, "[t]o deprive sentencing judges of this kind of information would undermine modern penological procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation." Id., at 249-250, 69 S.Ct., at 1084. Accordingly, the sentencing judge was held not to have acted unconstitutionally in considering either the defendant's participation in criminal conduct for which he had not been convicted or information secured by the probation investigator that the defendant was a "menace to society." See id., at 244, 69 S.Ct., at 1081. 17 Of course, a sentencing judge is not limited to the often far-ranging material compiled in a presentence report. "[B]efore making [the sentencing] determination, a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). Congress recently reaffirmed this fundamental sentencing principle by enacting 18 U.S.C. § 3577 (1976 ed.):10 18 "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." 19 Thus, we have acknowledged that a sentencing authority may legitimately consider the evidence heard during trial, as well as the demeanor of the accused. Chaffin v. Stynchcombe, 412 U.S. 17, 32, 93 S.Ct. 1977, 1985, 36 L.Ed.2d 714 (1973). More to the point presented in this case, one serious study has concluded that the trial judge's "opportunity to observe the defendant, particularly if he chose to take the stand in his defense, can often provide useful insights into an appropriate disposition." ABA Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures § 5.1, p. 232 (App. Draft 1968). 20 A defendant's truthfulness or mendacity while testifying on his own behalf, almost without exception, has been deemed probative of his attitudes toward society and prospects for rehabilitation and hence relevant to sentencing. Soon after Williams was decided, the Tenth Circuit concluded that "the attitude of a convicted defendant with respect to his willingness to commit a serious crime [perjury] . . . is a proper matter to consider in determining what sentence shall be imposed within the limitations fixed by statute." Humes v. United States, 186 F.2d 875, 878 (1951). The Second, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth Circuits have since agreed. See n. 3, supra. Judge Marvin Frankel's analysis for the Second Circuit is persuasive: 21 "The effort to appraise 'character' is, to be sure, a parlous one, and not necessarily an enterprise for which judges are notably equipped by prior training. Yet it is in our existing scheme of sentencing one clue to the rational exercise of discretion. If the notion of 'repentance' is out of fashion today, the fact remains that a manipulative defiance of the law is not a cheerful datum for the prognosis a sentencing judge undertakes. . . . Impressions about the individual being sentenced—the likelihood that he will transgress no more, the hope that he may respond to rehabilitative efforts to assist with a lawful future career, the degree to which he does or does not deem himself at war with his society—are, for better or worse, central factors to be appraised under our theory of 'individualized' sentencing. The theory has its critics. While it lasts, however, a fact like the defendant's readiness to lie under oath before the judge who will sentence him would seem to be among the more precise and concrete of the available indicia." United States v. Hendrix, 505 F.2d 1233, 1236 (1974). 22 Only one Circuit has directly rejected the probative value of the defendant's false testimony in his own defense. In Scott v. United States, 135 U.S.App.D.C. 377, 382, 419 F.2d 264, 269 (1969), the court argued that 23 'the peculiar pressures placed upon a defendant threatened with jail and the stigma of conviction make his willingness to deny the crime an unpromising test of his prospects for rehabilitation if guilty. It is indeed unlikely that many men who commit serious offenses would balk on principle from lying in their own defense. The guilty man may quite sincerely repent his crime but yet, driven by the urge to remain free, may protest his innocence in a court of law." 24 See also United States v. Moore, 484 F.2d 1284, 1288 (CA4 1973) (Craven, J., concurring). The Scott rationale rests not only on the realism of the psychological pressures on a defendant in the dock—which we can grant—but also on a deterministic view of human conduct that is inconsistent with the underlying precepts of our criminal justice system. A "universal and persistent" foundation stone in our system of law, and particularly in our approach to punishment, sentencing, and incarceration, is the "belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288 (1952). See also Blocker v. United States, 110 U.S.App.D.C. 41, 53, 288 F.2d 853, 865 (1961) (opinion concurring in result). Given that long-accepted view of the "ability and duty of the normal individual to choose," we must conclude that the defendant's readiness to ie under oath—especially when, as here, the trial court finds the lie to be flagrant—may be deemed probative of his prospects for rehabilitation. III 25 Against this background we evaluate Grayson's constitutional argument that the District Court's sentence constitutes punishment for the crime of perjury for which he has not been indicted, tried, or convicted by due process. A second argument is that permitting consideration of perjury will "chill" defendants from exercising their right to testify on their own behalf. 26 * In his due process argument, Grayson does not contend directly that the District Court had an impermissible purpose in considering his perjury and selecting the sentence. Rather, he argues that this Court, in order to preserve due process rights, not only must prohibit the impermissible sentencing practice of incarcerating for the purpose of saving the Government the burden of bringing a separate and subsequent perjury prosecution but also must prohibit the otherwise permissible practice of considering a defendant's untruthfulness for the purpose of illuminating his need for rehabilitation and society's need for protection. He presents two interrelated reasons. The effect of both permissible and impermissible sentencing practices may be the same: additional time in prison. Further, it is virtually impossible, he contends, to identify and establish the impermissible practice. We find these reasons insufficient justification for prohibiting what the Court and the Congress have declared appropriate judicial conduct. 27 First, the evolutionary history of sentencing, set out in Part II, demonstrates that it is proper—indeed, even necessary for the rational exercise of discretion—to consider the defendant's whole person and personality, as manifested by his conduct at trial and his testimony under oath, for whatever light those may shed on the sentencing decision. The "parlous" effort to appraise "character," United States v. Hendrix, supra, at 1236, degenerates into a game of chance to the extent that a sentencing judge is deprived of relevant information concerning "every aspect of a defendant's life." Williams v. New York, 337 U.S., at 250, 69 S.Ct., at 1084. The Government's interest, as well as the offender's, in avoiding irrationality is of the highest order. That interest more than justifies the risk that Grayson asserts is present when a sentencing judge considers a defendant's untruthfulness under oath. 28 Second, in our view, Williams fully supports consideration of such conduct in sentencing. There the Court permitted the sentencing judge to consider the offender's history of prior antisocial conduct, including burglaries for which he had not been duly convicted. This it did despite the risk that the judge might use his knowledge of the offender's prior crimes for an improper purpose. 29 Third, the efficacy of Grayson's suggested "exclusionary rule" is open to serious doubt. No rule of law, even one garbed in constitutional terms, can prevent improper use of firsthand observations of perjury. The integrity of the judges, and their fidelity to their oaths of office, necessarily provide the only, and in our view adequate, assurance against that. B 30 Grayson's argument that judicial consideration of his conduct at trial impermissibly "chills" a defendant's statutory right, 18 U.S.C. § 3481 (1976 ed.), and perhaps a constitutional right to testify on his own behalf is without basis. The right guaranteed by law to a defendant is narrowly the right to testify truthfully in accordance with the oath—unless we are to say that the oath is mere ritual without meaning. This view of the right involved is confirmed by the unquestioned constitutionality of perjury statutes, which punish those who willfully give false testimony. See, e. g., 18 U.S.C. § 1621 (1976 ed.); cf. United States v. Wong, 431 U.S. 174, 97 S.Ct. 1823, 52 L.Ed.2d 231 (1977). Further support for this is found in an important limitation on a defendant's right to the assistance of counsel: Counsel ethically cannot assist his client in presenting what the attorney has reason to believe is false testimony. See Holloway v. Arkansas, 435 U.S. 475, 480 n.4, 98 S.Ct. 1173, 1176 n.4, 55 L.Ed.2d 426 (1978); ABA Project on Standards for Criminal Justice, The Defense Function § 7.7(c), p. 133 (Compilation 1974). Assuming, arguendo, that the sentencing judge's consideration of defendants' untruthfulness in testifying has any chilling effect on a defendant's decision to testify falsely, that effect is entirely permissible. There is no protected right to commit perjury. 31 Grayson's further argument that the sentencing practice challenged here will inhibit exercise of the right to testify truthfully is entirely frivolous. That argument misapprehends the nature and scope of the practice we find permissible. Nothing we say today requires a sentencing judge to enhance, in some wooden or reflex fashion, the sentences of all defendants whose testimony is deemed false. Rather, we are reaffirming the authority of a sentencing judge to evaluate carefully a defendant's testimony on the stand, determine—with a consciousness of the frailty of human judgment—whether that testimony contained willful and material falsehoods, and, if so, assess in light of all the other knowledge gained about the defendant the meaning of that conduct with respect to his prospects for rehabilitation and restoration to a useful place in society. Awareness of such a process realistically cannot be deemed to affect the decision of an accused but unconvicted defendant to testify truthfully in his own behalf. 32 Accordingly, we reverse the judgment of the Court of Appeals and remand for reinstatement of the sentence of the District Court. 33 Reversed and remanded. 34 Mr. Justice STEWART, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting. 35 The Court begins its consideration of this case, ante, at 42, with the assumption that the respondent gave false testimony at his trial. But there has been no determination that his testimony was false. This respondent was given a greater sentence than he would otherwise have received—how much greater we have no way of knowing—solely because a single judge thought that he had not testified truthfully.1 In essence, the Court holds today that whenever a defendant testifies in his own behalf and is found guilty, he opens himself to the possibility of an enhanced sentence. Such a sentence is nothing more or less than a penalty imposed on the defendant's exercise of his constitutional and statutory rights to plead not guilty and to testify in his own behalf.2 36 It does not change matters to say that the enhanced sentence merely reflects the defendant's "prospects for rehabilitation" rather than an additional punishment for testifying falsely.3 The fact remains that all defendants who choose to testify, and only those who do so, face the very real prospect of a greater sentence based upon the trial judge's unreviewable perception that the testimony was untruthful. The Court prescribes no limitations or safeguards to minimize a defendant's rational fear that his truthful testimony will be perceived as false.4 Indeed, encumbrance of the sentencing process with the collateral inquiries necessary to provide such assurance would be both pragmatically unworkable and theoretically inconsistent with the assumption that the trial judge is merely considering one more piece of information in his overall evaluation of the defendant's prospects for rehabilitation. But without such safeguards I fail to see how the Court can dismiss as "frivolous" the argument that this sentencing practice will "inhibit exercise of the right to testify truthfully," ante, at 55. 37 A defendant's decision to testify may be inhibited by a number of considerations, such as the possibility that damaging evidence not otherwise admissible will be admitted to impeach his credibility. These constraints arise solely from the fact that the defendant is quite properly treated like any other witness who testifies at trial. But the practice that the Court approves today actually places the defendant at a disadvantage, as compared with any other witness at trial, simply because he is the defendant. Other witnesses risk punishment for perjury only upon indictment and conviction in accord with the full protections of the Constitution. Only the defendant himself, whose testimony is likely to be of critical importance to his defense,5 faces the additional risk that the disbelief of a single listener will itself result in time in prison. 38 The minimal contribution that the defendant's possibly untruthful testimony might make to an overall assessment of his potential for rehabilitation, see n. 3, supra, cannot justify imposing this additional burden on his right to testify in his own behalf. I do not believe that a sentencing judge's discretion to consider a wide range of information in arriving at an appropriate sentence. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337, allows him to mete out additional punishment to the defendant simply because of his personal belief that the defendant did not testify truthfully at the trial. 39 Accordingly, I would affirm the judgment of the Court of Appeals. 1 The testimony regarding the prison clothing was important for reasons in addition to the light it shed on quality of recollection. Grayson stated that after unpremeditatedly fleeing the prison with no possessions and crossing the fence, he hitchhiked to New York City—a difficult task for a man with no trousers. The United States suggested that by prearrangement Grayson met someone, possibly a woman friend, on the highway near the break in the fence and that this accomplice provided civilian clothes. It introduced evidence that the friend visited Grayson often at prison, including each of the three days immediately prior to his penultimate day in the camp. 2 The District Court in this case could have sentenced Grayson for any period up to five years. 18 U.S.C. § 751(a) (1976 ed.). 3 Compare the decision in the present case, 550 F.2d 103 (1977), and Scott v. United States, 135 U.S.App.D.C. 377, 419 F.2d 264 (1969), with United States v. Hendrix, 505 F.2d 1233 (CA2 1974), cert. denied, 423 U.S. 897, 96 S.Ct. 199, 46 L.Ed.2d 130 ( 975); United States v. Moore, 484 F.2d 1284 (CA4 1973); United States v. Nunn, 525 F.2d 958 (CA5 1976); United States v. Wallace, 418 F.2d 876 (CA6 1969), cert. denied, 397 U.S. 955, 90 S.Ct. 987, 25 L.Ed.2d 140 (1970); United States v. Levine, 372 F.2d 70 (CA7 1967); Hess v. United States, 496 F.2d 936 (CA8 1974); United States v. Cluchette, 465 F.2d 749 (CA9 1972); and Humes v. United States, 186 F.2d 875 (CA10 1951). 4 See Task Force Report 88. 5 The National Prison Association in its influential 1870 Declaration of Principles, asserted that "punishment is directed not to the crime but the criminal." Id., at 93. 6 The evolutionary development of sentencing and incarceration practices continues to engage attention. See S. 1437, 95th Cong., 1st Sess., Part III (1977); Task Force Report. Increasingly there are doubts concerning the validity of earlier, uncritical acceptance of the rehabilitation model. So experienced a penologist as the late Torsten Eriksson, long Director of Prisons in Sweden and later United Nations Interregional Advisor on Crime Prevention and Criminal Justice, dedicated his 1976 book, The Reformers: An Historical Survey of Pioneer Experiments in the Treatment of Criminals (Djurklou transl.), "[t]o those who tried, even if they failed." 7 See Task Force Report 74: "In the United States today, rehabilitative assumptions play some role in determining whether and for how long defendants have to be confined, but the precise weight given to such assumptions varies enormously among judges." But to some of the most thoughtful and experienced correctional authorities, the optimistic predictions of earlier years on the efficacy of rehabilitation are undergoing reappraisal. See, e.g., Eriksson, supra., n.6. 8 See Shimm, Foreword, 23 Law & Contemp. Prob. 399 (1958): "Signalizing, on the one hand, the termination of the trial phase, sentencing must accurately reflect the community's attitude toward the misconduct of which the offender has been adjudged guilty, and thereby ratify and reinforce community values. Marking, on the other hand, the threshold of the sanction or treatment phase, however, and largely defining its character and length, sentencing must also look to the offender's rehabilitation, to his restoration as a functioning, productive, responsible member of the community." 9 In 1945, Fed.Rule Crim.Proc. 32(c)(2) provided, as it does today: "The report of the presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court." All amendments to Rule 32(c) since its promulgation by this Court have had one of two purposes: first, to increase judicial use of presentence reports in the sentencing de ision and, second, to assist the sentencing judge in assessing the accuracy of the information contained in them. See Advisory Committee's Notes on Fed.Rule Crim.Proc. 32 and amendments, 18 U.S.C.App., pp. 1456-1460 (1976 ed.); 8A J. Moore, Federal Practice &Par; 32.03[1]-[4] (1975). To the same end, Congress, between 1973 and 1975, authorized 828 additional probation officers—an increase of more than 125%. The increase from 1971 to date has been more than 275%. Title 18 U.S.C. §§ 4205(c)-(d) (1976 ed.) provide district courts with a means, in addition to the presentence report, of acquiring information relevant to sentencing: commitment of the offender for up to six months to enable the Director of the Bureau of Prisons to make "a complete study . . . of the prisoner." 10 Title 18 U.S.C. § 3577 (1976 ed.) was enacted as a part of § 1001 of the Organized Crime Control Act of 1970, a section designed to impose extended terms of imprisonment on dangerous special offenders, i. e., the habitual, professional, or organized crime offender. The House Report on the 1970 Act, by way of explanation of what is now § 3577, cites this Court's decision in Williams v. New York. H.R.Rep. No. 91-1549, p. 63 (1970); see also S.Rep. No. 91-617, p. 167 (1969), U.S.Code Cong. & Admin.News 1970, p. 4007. 1 We know this only because of the trial judge's laudable explication of his reasons for imposing the sentence in this case. In many cases it would be impossible to discern whether a sentencing judge had been influenced by his belief that the defendant had not testified truthfully, since there is no requirement that reasons be given. But that fact does not argue against correcting an erroneous sentencing policy that is apparent on the face of the record. Cf. Bordenkircher v. Hayes, 434 U.S. 357, 372, 98 S.Ct. 663, 672, 54 L.Ed.2d 604 (POWELL, J., dissenting). As the Court notes, ante, at 54, "[t]he integrity of the judges" is a sufficient guarantee that they will not consciously consider factors that have been declared impermissible, even if the reasons for imposing a particular sentence are not stated on the record. 2 The accused in a federal case has an absolute constitutional right to plead not guilty, and if he does elect to go to trial an absolute statutory right to testify in his own behalf. 18 U.S.C. § 3481 (1976 ed.). I cannot believe that the latter is not also a constitutional right, for the right of a defendant under the Sixth and Fourteenth Amendments "to make his defense," Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 5 L.Ed.2d 562, surely must encompass the right to testify in his own behalf. See Ferguson v. Georgia, 365 U.S. 570, 602, 81 S.Ct. 756, 773, 5 L.Ed.2d 783 (Clark, J., concurring). 3 Indeed, without doubting the sincerity of trial judges one may doubt whether the single incident of a defendant's trial testimony could ever alter the assessment of rehabilitative prospects so drastically as to justify a perceptibly greater sentence. A sentencing judge has before him a presentence report, compiled by trained personnel, that is designed to paint as complete a picture of the defendant's life and character as is possible. If the defendant's suspected perjury is consistent with the evaluation of the report, its impact on the rehabilitative assessment must be minimal. If, on the other hand, it suggests such a markedly different character that different sentencing treatment seems appropriate, the defendant is effectively being punished for perjury without even the barest rudiments of due process. 4 For example, the dissenting judge in the Court of Appeals in this case suggested that a sentencing judge "should consider his independent evaluation of the testimony and behavior of the defendant only when he is convinced beyond a reasonable doubt that the defendant intentionally lied on material issues of fact . . . [and] the falsity of the defendant's testimony [is] necessarily established by the finding of guilt." 550 F.2d 103, 114 (Rosenn, J., dissenting). Contrary to Judge Rosenn, I do not believe that the latter requirement was met in this case. The jury could have believed Grayson's entire story but concluded, in the words of the trial judge's instructions on the defense of duress, that "an ordinary man" would not "have felt it necessary to leave the Allenwood Prison Camp when faced with the same degree of compulsion, coercion or duress as the Defendant was faced with in this case." 5 Notwithstanding the standard instruction that the jury is not to draw any adverse inference from th defendant's failure to testify, "a defendant who does not take the stand will probably fatally prejudice his chances of acquittal." Note, The Influence of the Defendant's Plea on Judicial Determination of Sentence, 66 Yale L.J. 204, 212 n. 36 (1956).

34

438 U.S. 567 98 S.Ct. 2943 57 L.Ed.2d 957 FURNCO CONSTRUCTION CORPORATION, Petitioner,v.William WATERS et al. No. 77-369. Argued April 17, 1978. Decided June 29, 1978. Syllabus Petitioner corporation specializes in relining blast furnaces with "firebrick." It maintains no permanent force of bricklayers but delegates to the superintendent of a particular job the task of hiring a work force. Respondents, three black bricklayers, sought employment with petitioner on a particular job, but two of them, though fully qualified, were never offered employment, and the third was hired only long after he had initially applied. The job superintendent, pursuant to industry practice, did not accept applications at the jobsite but hired only bricklayers who he knew were experienced and competent or who had been recommended to him as similarly skilled. Respondents brought suit against petitioner claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964. The District Court held, inter alia, that respondents had not proved a case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, and that petitioner's hiring practices were justified as a "business necessity" in that they were required for the safe and efficient operation of petitioner's business. The Court of Appeals reversed, holding that respondents had made out a prima facie case of employment discrimination under McDonnell Douglas, which petitioner had not effectively rebutted. Disagreeing with the District Court's finding that petitioner's hiring practices were justified as a business necessity, the Court of Appeals devised a hiring procedure whereby petitioner would take written applications, with inquiry as to qualifications and experience, and then check, evaluate, and compare those claims against the qualifications and experience of other bricklayers with whom the superintendent was already acquainted, thereby allowing petitioner to consider the qualifications of more minority applicants. Held: The Court of Appeals erred in its treatment of the nature of the evidence necessary to rebut a prima facie case under McDonnell Douglas, and in substituting its own judgment as to the prope hiring practices for an employer who claims its hiring practices do not violate Title VII. Pp. 575-580. (a) While the Court of Appeals was justified in concluding that as a matter of law respondents had made out a prima facie case of discrimination under McDonnell Douglas, the court went awry in apparently equating such a prima facie showing with an ultimate finding of fact as to discriminatory refusal to hire under Title VII, and the court's imposition of a hiring method enabling the employer to consider, and perhaps to hire, more minority employees finds no support in either the nature of the prima facie case or Title VII's purpose. Courts may not impose such a remedy on an employer at least until a violation of Title VII has been proved, and here none had been proved under the reasoning of either the District Court or the Court of Appeals. Pp. 575-578. (b) The Court of Appeals also appears improperly to have concluded that once a McDonnell Douglas prima facie showing had been made out, statistics offered by petitioner to show that its work force was racially balanced were totally irrelevant to the question of motive. A McDonnell Douglas showing is not the equivalent of a factual finding of discrimination but simply proof of actions taken by the employer from which discriminatory animus can be inferred because experience has proved that in the absence of any other explanation it is more likely than not those actions were based on impermissible considerations. The employer, therefore, must be allowed some latitude to introduce evidence bearing on his motive. Thus, although petitioner's statistics were not and could not be sufficient to demonstrate conclusively that its actions were not discriminatorily motivated, the District Court was entitled to consider the racial mix of the work force when making a determination as to motivation, and the Court of Appeals should likewise give similar consideration to such proof in any further proceedings. Pp. 579-580. 551 F.2d 1085, reversed and remanded. Joel H. Kaplan, Chicago, Ill., for petitioner. Judson H. Miner, Chicago, Ill., for respondents. Mr. Justice REHNQUIST delivered the opinion of the Court. 1 Respondents are three black bricklayers who sought employment with petitioner Furnco Construction Corp. Two of the three were never offered employment. The third was employed only long after he initially applied. Upon adverse findings entered after a bench trial, the District Court for the Northern District of Illinois held that respondents had not proved a claim under either the "disparate treatment" theory of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), or the "disparate impact" theory of Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The Court of Appeals for the Seventh Circuit, concluding that under McDonnell Douglas respondents had made out a prima facie case which had not been effectively rebutted, reversed the judgment of the District Court. 551 F.2d 1085 (1977). We granted certiorari to consider important questions raised by this case regarding the exact scope of the prima facie case under McDonnell Douglas and the nature of the evidence necessary to rebut such a case. 434 U.S. 996, 98 S.Ct. 632, 54 L.Ed.2d 490 (1977). Having concluded that the Court of Appeals erred in its treatment of the latter question, we reverse and remand to that court for further proceedings consistent with this opinion. 2 * A few facts in this case are not in serious dispute. Petitioner Furnco, an employer within the meaning of §§ 701(b) and (h) of Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e(b) and (h) (1970 ed., Supp. V), specializes in refractory installation in steel mills and, more particularly, the rehabilitation or relining of blast furnaces with what is called in the trade "firebrick." Furnco does not, however, maintain a permanent force of bricklayers. Rath r, it hires a superintendent for a specific job and then delegates to him the task of securing a competent work force. In August 1971, Furnco contracted with Interlake, Inc., to reline one of its blast furnaces. Joseph Dacies, who had been a job superintendent for Furnco since 1965, was placed in charge of the job and given the attendant hiring responsibilities. He did not accept applications at the jobsite, but instead hired only persons whom he knew to be experienced and competent in this type of work or persons who had been recommended to him as similarly skilled. He hired his first four bricklayers, all of whom were white, on two successive days in August, the 26th and 27th, and two in September, the 7th and 8th. On September 9 he hired the first black bricklayer. By September 13, he had hired 8 more bricklayers, 1 of whom was black; by September 17, 7 more had been employed, another of whom was black; and by September 23, 17 more were on the payroll, again with 1 black included in that number.1 From October 12 to 18, he hired 6 bricklayers, all of whom were black, including respondent Smith, who had worked for Dacies previously and had applied at the jobsite somewhat earlier. Respondents Samuels and Nemhard were not hired, though they were fully qualified and had also attempted to secure employment by appearing at the jobsite gate. Out of the total of 1,819 man-days worked on the Interlake job, 242, or 13.3%, were worked by black bricklayers. 3 Many of the remaining facts found by the District Court and the inferences to be drawn therefrom are in some dispute between the parties, but none was expressly found by the Court of Appeals to be clearly erroneous. The District Court elaborated at some length as to the "critical" necessity of insuring that only experienced and highly qualified firebricklayers were employed. Improper or untimely work would result in substantial losses both to Interlake, which was forced to shut down its furnace and lay off employees during the relining job, and to Furnco, which was paid for this work at a fixed price and for a fixed time period. In addition, not only might shoddy work slow this work process down, but it also might necessitate costly future maintenance work with its attendant loss of production and employee layoffs; diminish Furnco's reputation and ability to secure similar work in the future; and perhaps even create serious safety hazards, leading to explosions and the like. App. to Pet. for Cert. A13-A15. These considerations justified Furnco's refusal to engage in on-the-job training or to hire at the gate, a hiring process which would not provide an adequate method of matching qualified applications to job requirements and assuring that the applicants are sufficiently skilled and capable. Id., at A18-A19. Furthermore, there was no evidence that these policies and practices were a pretext to exclude black bricklayers or were otherwise illegitimate or had a disproportionate impact or effect on black bricklayers. Id., at A17-A18. From late 1969 through late 1973, 5.7% of the bricklayers in the relevant labor force were minority group members, see 41 CFR § 60-11 et seq. (1977),2 while, as mentioned before, 13.3% of the man-days on Furnco's Interlake job were worked by black bricklayers. 4 Because of the above considerations and following the established practice in the industry, most of the firebricklayers hired by Dacies were persons known by him to be experienced and competent in this type of work. The others were hired after being recommended as skilled in this type of work by his general foreman, an employee (a black), another Furnco superintendent in the area, and Furnco's General Manager John Wright. Wright had not only instructed Dacies to employ, as far as possible, at least 16% black bricklayers, a policy due to Furnco's self-imposed affirmative-action plan to insure that black bricklayers were employed by Furnco in Cook County in numbers substantially in excess of their percentage in the local union,3 but he had also recommended, in an effort to show good faith, that Dacies hire several specific bricklayers, who had previously filed a discrimination suit against Furnco, negotiations for the settlement of which had only recently broken down, see n.3, supra. 5 From these factual findings, the District Court concluded that respondents had failed to make out a Title VII claim under the doctrine of Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Furnco's policy of not hiring at the gate was racially neutral on its face and there was no showing that it had a disproportionate impact or effect. App. to Pet. for Cert. A20-A21. It also held that respondents had failed to prove a case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). App. to Pet. for Cert. A21. It is not entirely clear whether the court thought respondents had failed to make out a prima facie case of discrimination under McDonnell Douglas, see App. to Pet. for Cert. A20-A21, but the court left no doubt that it thought Furnco's hiring practices and policies were justified as a "business necessity" in that they were required for the safe and efficient operation of Furnco's business, and were "not used as a pretext to exclude Negroes." Thus, even if a prima facie case had been made out, it had been effectively rebutted. Id., at A21. 6 "Not only have Plaintiffs entirely failed to establish that Furnco's employment practices on the Interlake job discriminated against them on the basis of race or constituted retaliatory conduct but Defendant has proven what it was not required to. By its cross-examination and direct evidence, Furnco has proven beyond all reasonable doubt that it did not engage in either racial discrimination or retaliatory conduct in its employment practices in regard to bricklayers on the Interlake job."4 Id., at A22. 7 The Court of Appeals reversed, holding that respondents had made out a prima facie case under McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. 1817, which Furnco had not effectively rebutted. Because of the "historical inequality of treatment of black workers"5 and the fact that the record failed to reveal that any white persons had applied at the gate, the Court of Appeals rejected Furnco's argument that discrimination had not been shown because a white appearing at the jobsite would have fared no better than respondents. That court also disagreed with Furnco's contention, which the District Court had adopted, that "the importance of selecting people whose capability had been demonstrated to defendant's brick superintendent is a 'legitimate, nondiscriminatory reason' for defendant's refusal to consider plaintiffs." 551 F.2d, at 1088. Instead, the appellate court proceeded to devise what it thought would be an appropriate hiring procedure for Furnco, saying that "[i]t seems to us that there is a reasonable middle ground between immediate hiring decisions on the spot and seeking out employees from among those known to the superintendent." Ibid. This middle course, according to the Court of Appeals, was to take written applications, with inquiry as to qualifications and experience, and then check, evaluate, and compare those claims against the qualifications and experience of other bricklayers with whom the superintendent was already acquainted. We granted certiorari to consider whether the Court of Appeals had gone too far in substituting its own judgment as to proper hiring practices in the case of an employer which claimed the practices it had chosen did not violate Title VII.6 II A. 8 We agree with the Court of Appeals that the proper approach was the analysis contained in McDonnell Douglas, supra.7 We also think the Court of Appeals was justified in concluding that as a matter of law respondents made out a prima facie case of discrimination under McDonnell Douglas. In that case w held that a plaintiff could make out a prima facie claim by showing 9 "(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." 411 U.S., at 802, 93 S.Ct., at 1824 (footnote omitted). 10 This, of course, was not intended to be an inflexible rule, as the Court went on to note that "[t]he facts necessarily will vary in Title VII cases, and the specification . . . of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations." Id., at 802 n. 13, 93 S.Ct., at 1824. See Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977). But McDonnell Douglas did make clear that a Title VII plaintiff carries the initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were "based on a discriminatory criterion illegal under the Act." 431 U.S., at 358, 97 S.Ct., at 1866. See also id., at 335 n. 15, 97 S.Ct., at 1854. And here respondents carried that initial burden by proving they were members of a racial minority; they did everything within their power to apply for employment; Furnco has conceded that they were qualified in every respect for the jobs which were about to be open;8 they were not offered employment, although Smith later was; and the employer continued to seek persons of similar qualifications. B 11 We think the Court of Appeals went awry, however, in apparently equating a prima facie showing under McDonnell Douglas with an ultimate finding of fact as to discriminatory refusal to hire under Title VII; the two are quite different and that difference has a direct bearing on the proper resolution of this case. The Court of Appeals, as we read its opinion, thought Furnco's hiring procedures not only must be reasonably related to the achievement of some legitimate purpose, but also must be the method which allows the employer to consider the qualifications of the largest number of minority applicants. We think the imposition of that second requirement simply finds no support either in the nature of the prima facie case or the purpose of Title VII. 12 The central focus of the inquiry in a case such as this is always whether the employer is treating "some people less favorably than others because of their race, color, religion, sex, or national origin." Teamsters v. United States, supra, at 335 n. 15, 97 S.Ct., at 1854. The method suggested in McDonnell Douglas for pursuing this inquiry, however, was never intended to be rigid, mechanized, or ritualistic. Rather it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination. A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors. See Teamsters v. United States, supra, 431 U.S., at 358 n. 44, 97 S.Ct., at 1866. And we are willing to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race. 13 When the prima facie case is understood in the light of the opinion in McDonnell Douglas, it is apparent that the burden which shifts to the employer is merely that of proving that he based his employment decision on a legitimate consideration, and not an illegitimate one such as race. To prove that, he need not prove that he pursued the course which would both enable him to achieve his own business goal and allow him to consider the most employment applications. Title VII prohibits him from having as a goal a work force selected by any proscribed discriminatory practice, but it does not impose a duty to adopt a hiring procedure that maximizes hiring of minority employees. To dispel the adverse inference from a prima facie showing under McDonnell Douglas, the employer need only "articulate some legitimate, nondiscriminatory reason for the employee's rejection." 411 U.S., at 802, 93 S.Ct., at 1824. 14 The dangers of embarking on a course such as that charted by the Court of Appeals here, where the court requires businesses to adopt what it perceives to be the "best" hiring procedures, are nowhere more evident than in the record of this very case. Not only does the record not reveal that the court's suggested hiring procedure would work satisfactorily, but also there is nothing in the record to indicate that it would be any less "haphazard, arbitrary, and subjective" than Furnco's method, which the Court of Appeals criticized as deficient for exactly those reasons. Courts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it. 15 This is not to say, of course, that proof of a justification which is reasonably related to the achievement of some legitimate goal necessarily ends the inquiry. The plaintiff must be given the opportunity to introduce evidence that the proffered justification is merely a pretext for discrimination. And as we noted in McDonnell Douglas, supra, at 804-805, 93 S.Ct., at 1825-1826, this evidence might take a variety of forms. But the Court of Appeals, although stating its disagreement with the District Court's conclusion that the employer's hiring practices were a "legitimate, nondiscriminatory reason" for refusing to hire respondents, premised its disagreement on a view which we have discussed and rejected above. It did not conclude that the practices were a pretext for discrimination, but only that different practices would have enabled the employer to at least consider, and perhaps to hire, more minority employees. But courts may not impose such a remedy on an employer at least until a violation of Title VII has been proved, and here none had been under the reasoning of either the District Court or the Court of Appeals. C 16 The Court of Appeals was also critical of petitioner's effort to employ statistics in this type of case. While the matter is not free from doubt, it appears that the court thought that once a McDonnell Douglas prima facie show ng had been made out, statistics of a racially balanced work force were totally irrelevant to the question of motive. See 551 F.2d, at 1089. That would undoubtedly be a correct view of the matter if the McDonnell Douglas prima facie showing were the equivalent of an ultimate finding by the trier of fact that the original rejection of the applicant was racially motivated: A racially balanced work force cannot immunize an employer from liability for specific acts of discrimination. As we said in Teamsters v. United States, 431 U.S., at 341-342, 97 S.Ct., at 1857: 17 "[T]he District Court and the Court of Appeals found upon substantial evidence that the company had engaged in a course of discrimination that continued well after the effective date of Title VII. The company's later changes in its hiring and promotion policies could be of little comfort to the victims of the earlier post-Act discrimination, and could not erase its previous illegal conduct or its obligation to afford relief to those who suffered because of it." 18 See also Albemarle Paper Co. v. Moody, 422 U.S. 405, 412-413, 95 S.Ct. 2362, 2369-2370, 45 L.Ed.2d 280 (1975). It is clear beyond cavil that the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race, without regard to whether members of the applicant's race are already proportionately represented in the work force. See Griggs v. Duke Power Co., 401 U.S., at 430, 91 S.Ct., at 853; McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 279, 96 S.Ct. 2574, 2578, 49 L.Ed.2d 493 (1976). 19 A McDonnell Douglas prima facie showing is not the equivalent of a factual finding of discrimination, however. Rather, it is simply proof of actions taken by the employer from which we infer discriminatory animus because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations. When the prima facie showing is understood in this manner, the employer must be allowed some latitude to introduce evidence which bears on his motive. Proof that his work force was racially balanced or that it contained a disproportionately high percentage of minority employees is not wholly irrelevant on the issue of intent when that issue is yet to be decided. We cannot say that such proof would have absolutely no probative value in determining whether the otherwise unexplained rejection of the minority applicants was discriminatorily motivated. Thus, although we agree with the Court of Appeals that in this case such proof neither was nor could have been sufficient to conclusively demonstrate that Furnco's actions were not discriminatorily motivated, the District Court was entitled to consider the racial mix of the work force when trying to make the determination as to motivation. The Court of Appeals should likewise give similar consideration to the proffered statistical proof in any further proceedings in this case. III 20 The parties also press upon the Court a large number of alternative theories of liability and defense,9 none of which were directly addressed by the Court of Appeals as we read its opinion. Given the present posture of this case, however, we think those matters which are still preserved for review are best decided by the Court of Appeals in the first instance. Accordingly, we declined to address them as an original matter here. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered 21 Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, concurring in part and dissenting in part. 22 It is well established under Title VII that claims of employment discrimination because of race may arise in two different ways. Teamsters v. United States, 431 U.S. 324, 335-336, n. 15, 97 S.Ct. 1843, 1854, 52 L.Ed.2d 396 (1977). An individual may allege that he has been subjected to "disparate treatment" because of his race, or that he has been the victim of a facially neutral practice having a "disparate impact" on his racial group. The Court today concludes that the Court of Appeals was correct in treating this as a disparate-treatment case controlled by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). 23 Under McDonnell Douglas, a plaintiff establishes a prima facie case of employment discrimination through disparate treatment by showing 24 "(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." Id., at 802, 93 S.Ct., at 1824 (footnote omitted). 25 Once a plaintiff has made out this prima facie case, the burden shifts to the employer who must prove that he had a "legitimate, nondiscriminatory reason for the [plaintiff's] rejection." Ibid. 26 The Court of Appeals properly held that respondents had made out a prima facie case of employment discrimination under McDonnell Douglas. Once respondents had established their prima facie case, the question for the court was then whether petitioner had carried its burden of proving that respondents were rejected on the basis of legitimate nondiscriminatory considerat ons. The court, however, failed properly to address that question and instead focused on what other hiring practices petitioner might employ. I therefore agree with the Court that we must remand the case to the Court of Appeals so that it can address, under the appropriate standards, whether petitioner had rebutted respondents' prima facie showing of disparate treatment. I also agree that on remand the Court of Appeals is to address the other theories of liability which respondents have presented. See ante, at 580, and n. 9. 27 Where the Title VII claim is that a facially neutral employment practice actually falls more harshly on one racial group, thus having a disparate impact on that group, our cases establish a different way of proving the claim. See, e. g., Teamsters, supra, 431 U.S., at 336 n. 15, 349, 97 S.Ct., at 1854 n. 15, 1861; Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); General Electric Co. v. Gilbert, 429 U.S. 125, 137, 97 S.Ct. 401, 408, 50 L.Ed.2d 343 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 422, 425, 95 S.Ct. 2362, 2373, 2375, 45 L.Ed.2d 280 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 430-432, 91 S.Ct. 849, 853-854, 28 L.Ed.2d 158 (1971). As set out by the Court in Griggs v. Duke Power Co., to establish a prima facie case on a disparate-impact claim, a plaintiff need not show that the employer had a discriminatory intent but need only demonstrate that a particular practice in actuality "operates to exclude Negroes." Id., at 431, 91 S.Ct., at 853. 28 Once the plaintiff has established the disparate impact of the practice, the burden shifts to the employer to show that the practice has "a manifest relationship to the employment in question." Id., at 432, 91 S.Ct., at 854. The "touchstone is business necessity," id., at 431, 91 S.Ct., at 853, and the practice "must be shown to be necessary to safe and efficient job performance to survive a Title VII challenge." Dothard v. Rawlinson, supra, 433 U.S., at 332, n. 14, 97 S.Ct., at 2728. Under this principle, a practice of limiting jobs to those with prior experience working in an industry or for a particular person, or to those who hear about jobs by word of mouth would be invalid if the practice in actuality impacts more harshly on a group protected under Title VII, unless the practice can be justified by business necessity. 29 There is nothing in today's opinion that is inconsistent with this approach or with our prior decisions. I must dissent, however, from the Court's apparent decision, see ante, at 575, to foreclose on remand further litigation on the Griggs question of whether petitioner's hiring practices had a disparate impact. Respondents claim that petitioner's practice of hiring from a list of those who had previously worked for the foreman foreclosed Negroes from consideration for the vast majority of jobs. Although the foreman also hired a considerable number of Negroes through other methods, respondents assert that the use of other methods to augment the representation of Negroes in the work force does not answer whether the primary hiring practice is discriminatory. 30 It is clear that an employer cannot be relieved of responsibility for past discriminatory practices merely by undertaking affirmative action to obtain proportional representation in his work force. As the Court said in Teamsters, and reaffirms today, a "company's later changes in its hiring and promotion policies could be of little comfort to the victims of the earlier . . . discrimination, and could not erase its previous illegal conduct or its obligation to afford relief to those who suffered because of it." 431 U.S., at 341-342, 97 S.Ct., at 1857; ante, at 579. Therefore, it is at least an open question whether the hiring of workers primarily from a list of past employees would, under Griggs, violate Title VII where the list contains no Negroes but the company uses addition l methods of hiring to increase the numbers of Negroes hired.* 31 The Court today apparently assumes that the Court of Appeals affirmed the District Court's findings that petitioner's hiring practice had no disparate impact. I cannot agree with that assumption. Because the Court of Appeals disposed of this case under the McDonnell Douglas analysis, it had no occasion to address those findings of the District Court pertaining to disparate impact. Although the Court of Appeals did discuss Griggs in its opinion, 551 F.2d 1085, 1089-1090 (1977), as I read that discussion the court was merely rejecting petitioner's argument that it could defeat respondents' McDonnell Douglas claim by showing that the work force had a large percentage of Negro members. I express no view on the issue of whether respondents' claim should prevail on the facts presented here since that question is not presently before us, but I believe that respondents' opportunity to make their claim should not be foreclosed by this Court. 1 Respondents contend that two of these four blacks were not actually "hired," but merely "transferred" from another Furnco job. Brief for Respondents 7-8. Both the District Court and the Court of Appeals spoke only of "hiring" bricklayers, however, and those parts of the record to which respondents point do not persuade us that this is a mischaracterization. 2 Respondents attempted to introduce a study conducted in late 1973 by the local union which matched members' names and race in an effort to show what percentage of the union membership was black. The study concluded that approximately 500 of the 3,800 union members were black. The District Court excluded this evidence because the study had been conducted two years after Furnco completed its job. App. to Pet. for Cert. A16 n.1. The Court of Appeals thought rejection of this evidence was an abuse of discretion, but in dealing with the merits did not rely on the racial proportions in the labor force, so did not remand the case to permit introduction of that testimony. The Court of Appeals also noted that in any event respondents suffered no prejudice by the court's refusal to admit the study because it would not have demonstrated discrimination. The study showed that 13.7% of the membership of the union was black, while the evidence demonstrated that 13.3% of the man-days were worked by black bricklayers, Furnco had set a goal of 16% black bricklayers, and 20% of the individuals hired were black. 551 F.2d 1085, 1090 (1977). 3 According to the District Court, this affirmative-action program was initiated by Furnco following a job performed in 1969-1970 from which charges of racial discrimination in hiring were filed by several black bricklayers. These claims are apparently still pending on appeal in the Illinois courts and the merits of a parallel federal action remain to be adjudicated. See App. to Pet. for Cert. A15; Batiste v. Furnco Construction Corp., 503 F.2d 447 (CA7 1974). 4 The District Court also found that certai other plaintiffs never attempted to apply for work at Interlake or were fired or not hired for valid reasons, such as insubordination or poor workmanship. App. to Pet. for Cert. A17-A19. The Court of Appeals, concluding that the District Court's findings were not clearly erroneous, affirmed the judgment against these particular plaintiffs. 551 F.2d, at 1087-1088. These rulings are not challenged here. 5 The court stated: "The historical inequality of treatment of black workers seems to us to establish that it is prima facie racial discrimination to refuse to consider the qualifications of a black job seeker before hiring from an approved list containing only the names of white bricklayers. How else will qualified black applicants be able to overcome the racial imbalance in a particular craft, itself the result of past discrimination?" 551 F.2d, at 1089. 6 The petition for certiorari set out three questions: "1. Whether the Seventh Circuit, in reversing the judgment of the District Court, erred in finding as irrelevant to the issue of racial discrimination in hiring, statistics demonstrating that in hiring highly skilled bricklayers, the employer hired Negroes in a percentage far in excess of their statistical presence in the relevant labor force. "2. Whether a court may find an employer guilty of racial discrimination in employment due to alleged disparate treatment in hiring without a finding of discriminatory intent or motive. "3. Whether a hiring practice not shown to result in disparate impact or treatment of prospective minority employees and found by the District Court to be justified by business necessity and legitimate business reasons may be found to be racially discriminatory by the Court of Appeals merely because it is subjective and because the Court of Appeals substitutes its judgment for that of the District Court as to what constitutes legitimate business reasons." Pet. for Cert. 2. 7 This case did not involve employment tests, which we dealt with in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and in Albemarle Paper Co. v. Moody, 422 U.S. 405, 412-413, 95 S.Ct. 2362, 2369-2370, 45 L.Ed.2d 280 (1975), or particularized requirements such as the height and weight specifications considered in Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977), and it was not a "pattern or practice" case like Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977). 8 We note that this case does not raise any questions regarding exactly what sort of requirements an employer can impose upon any particular job. Furnco has conceded that for all its purposes respondents were qualified in every sense. Thus, with respect to the McDonnell Douglas prima facie case, the only question it places in issue is whether its refusal to consider respondents' applications at the gate was based upon legitimate, nondiscriminatory reasons and therefore permissible. 9 Respondents, for example, argue that regardless of the propriety of Furnco's general refusal to hire at the gate or of a general policy of hiring only bricklayers known to the superintendent or referred to him by an insider, a foreman, or another bricklayer, Dacies' particular method of hiring was discriminatory. Thus, the general hiring practice, though perhaps legitimate in the abstract, was discriminatorily applied in this case, and cannot be used to rebut the prima facie case. Brief for Respondents 19-26. In particular, respondents argue that the evidence proved that Dacies hired from a "list" he had prepared, which allegedly included competent firebricklayers with whom he had worked, but in fact included only white firebricklayers with whom he had worked. Exclusion from this list of competent blacks with whom he had worked, such as respondents Smith and Samuels, was itself discriminatory and thus cannot be used to rebut respondents' prima facie case. Furnco, on the other hand, vigorously disputes that Dacies hired only from this list and that the hiring process can be as neatly broken down into various components as respondents would like. It argues that even if most of the people with whom Dacies was familiar were white, Dacies made a concerted effort to speak with people who were familiar with competent black bricklayers and then hired a large number of black bricklayers. In fact, argues Furnco, the statistics indicate that he hired a disproportionately large number of blacks, thus clearly indicating that his so-called "list" certainly could not have been the exclusive source of potential employees even if it had been all white. It further disputes the notion that Furnco or Dacies had in any way put some sort of ceiling on the maximum number of blacks they were willing to hire. It asserts there is absolutely nothing in the record to support such a conclusion. The District Court made no findings which would support respondents' view of the evidence. The Court of Appeals mentioned the existence of such a list, 551 F.2d, at 1086, but we do not read its opinion as expressly relying on this point either. Rather, as we read its opinion, the court found only that respondents had made out a prima facie case under McDonnell Douglas and that, for the reasons outlined in the text, Furnco had failed to rebut that prima facie case. On remand, respondents are of course free to pursue any such contentions which have been properly preserved. * Of course, the Court leaves open on remand the issue of whether Furnco's use of the list violated Title VII under a disparate-treatment theory. See ante, at 581 n. 9.

12

57 L.Ed.2d 854 98 S.Ct. 2864 438 U.S. 422 UNITED STATES, Petitioner,v.UNITED STATES GYPSUM COMPANY et al. No. 76-1560. Argued March 1, 1978. Decided June 29, 1978. Syllabus Several major gypsum board manufacturers and various of their officials were indicted for violations of § 1 of the Sherman Act by allegedly engaging in a price-fixing conspiracy. One of the types of actions allegedly taken in formulating and effectuating the conspiracy was interseller price verification, i. e., the practice of telephoning a competing manufacturer to determine the price being currently offered on gypsum board to a specific customer. After some of the defendants pleaded nolo contendere and were sentenced, the remaining defendants were convicted after a trial of some 19 weeks. The Government's case focused on the interseller price-verification charge, which the defendants defended on the ground that the price-information exchanges were to enable them to take advantage of the meeting-competition defense contained in § 2(b) of the Clayton Act, as amended by the Robinson-Patman Act (which permits a seller to rebut a prima facie price-discrimination charge by showing that a lower price to a purchaser was made in good faith to meet an equally low price of a competitor). On the verification issue, the trial judge charged the jury that if the price-information exchanges were found to have been undertaken in good faith to comply with the Robinson-Patman Act, verification alone would not suffice to establish an illegal price-fixing agreement, but that if the jury found that the effect of verification was to fix prices, then the parties would be presumed, as a matter of law, to have intended that result. The judge further charged that since only a single conspiracy was alleged, liability could only be predicated on the knowing involvement of each defendant, considered individually, in the conspiracy alleged, the judge having refused the defendants' requested charge directing the jury to determine what kind of agreement, if any, existed as to each defendant before any could be found to be a member of the conspiracy. With respect to the defendants' evidence as to withdrawal from the conspiracy, the judge instructed the jury that withdrawal had to be established by either affirmative notice to every other member of the conspiracy or by disclosure of the illegal enterprise to law enforcement officials. The judge refused the defendants' requested instruction that vigorous price competition during the period in question could also be considered as evidence of abandonment of the conspiracy. After all the testimony had been presented, the jurors were sequestered for deliberation, and apparently disagreement among them arose. After approximately seven days of deliberations, the foreman of the jury informed the judge that he wanted to discuss the jury's condition, and this resulted, with the parties' consent, in an ex parte meeting between the judge and the foreman. Most of the discussion at the meeting involved the jurors' deteriorating health but the foreman also referred to the jury's deadlock; there followed an exchange strongly suggesting that the foreman may have carried away from the meeting the impression that the judge wanted a verdict "one way or the other." The jury rendered its guilty verdict the following morning. The Court of Appeals reversed the convictions on various grounds, holding, inter alia, that verification of price concessions with competitors for the sole purpose of taking advantage of the meeting-competition defense of § 2(b) constitutes a "controlling circumstance" precluding liability under § 1 of the Sherman Act, and thus an instruction allowing the jury to ignore the defendants' purpose in engaging in the alleged misconduct could not be sustained. Held : 1. A defendant's state of mind or intent is an element of a criminal antitrust offense which must be established by evidence and inferences drawn therefrom and cannot be taken from the trier of fact through reliance on a legal presumption of wrongful intent from proof of an effect on prices. Since the trial judge's instruction on the verification issue had this prohibited effect, it was improper. Pp. 434-446. (a) The Sherman Act is not to be construed as mandating a regime of strict-liability crimes; rather the criminal offenses defined therein are to be construed as including intent as an element. Pp. 436-443. (b) Action undertaken with knowledge of its probable consequences and having the requisite anticompetitive effects can be a sufficient predicate for a finding of criminal liability under the antitrust laws. Where carefully planned and calculated conduct is being scrutinized in the context of a criminal prosecution, the perpetrator's knowledge of the anticipated consequences is a sufficient predicate for a finding of criminal intent. Pp. 443-446. 2. A good-faith belief, rather than an absolute certainty, that a price concession is being offered to meet an equally low price offered by a competitor suffices to invoke the § 2(b) defense; exchanges of price information, even when putatively for the purpose of Robinson-Patman Act compliance, must remain subject to close scrutiny under the Sherman Act. Therefore, the Court of Appeals erred in treating interseller price verification even as a limited "controlling circumstance" exception precluding Sherman Act liability. Pp. 447-459. 3. The ex parte meeting between the trial judge and the jury foreman was improper, and the Court of Appeals would have been justified in reversing the convictions solely because of the risk that the foreman believed the judge was insisting on a dispositive verdict. Such a meeting is pregnant with possibilities for error, since it is difficult to contain, much less to anticipate, the direction the conversation will take at such a meeting, any occasion which leads to communication with the whole jury panel through one juror inevitably risks innocent misstatements of the law and misinterpretations despite the undisputed good faith of the participants, and the absence of counsel from the meeting aggravates the problems of having one juror serve as a conduit for communication with the whole panel. Here the meeting was allowed to drift into a supplemental instruction relating to the jury's obligation to reach a verdict, and counsel were denied any chance to correct whatever mistaken impression the foreman might have taken from the meeting. Pp. 459-462. 4. The trial judge's charge concerni g participation in the conspiracy, although perhaps not completely clear, was sufficient, but his charge on withdrawal from the conspiracy was erroneous, since it limited the jury's consideration to only two circumscribed and arguably impractical methods of demonstrating withdrawal, rather than permitting consideration of any affirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach coconspirators. Pp. 462-465. 550 F.2d 115, affirmed. Daniel M. Friedman, Washington, D. C., for petitioner. W. Donald McSweeney, Chicago, Ill., H. Francis DeLone, Philadelphia, Pa., and Fred H. Bartlit, Jr., Chicago, Ill., for respondents. [Amicus Curiae Information from page 425 intentionally omitted] Mr. Chief Justice BURGER delivered the opinion of the Court. 1 This case presents the following questions: (a) whether intent is an element of a criminal antitrust offense; (b) whether an exchange of price information for purposes of compliance with the Robinson-Patman Act is exempt from Sherman Act scrutiny; (c) the adequacy of jury instructions on membership in and withdrawal from the alleged conspiracy; and (d) the propriety of an ex parte meeting between the trial judge and the foreman of the jury. 2 * Gypsum board, a laminated type of wall-board composed of paper, vinyl, or other specially treated coverings over a gypsum core, has in the last 30 years substantially replaced wet plaster as the primary component of interior walls and ceilings in residential and commercial construction. The product is essentially fungible; differences in price, credit terms, and delivery services largely dictate the purchasers' choice between competing suppliers. Overall demand, however, is governed by the level of construction activity and is only marginally affected by price fluctuations. 3 The gypsum board industry is highly concentrated, with the number of producers ranging from 9 to 15 in the period 1960-1973. The eight largest companies accounted for some 94% of the national sales with the seven "single plant producers"1 accounting for the remaining 6%. Most of the major producers and a large number of the single-plant producers are members of the Gypsum Association which since 1930 has served as a trade association of gypsum board manufacturers. 4 * Beginning in 1966, the Justice Department, as well as the Federal Trade Commission, became involved in investigations into possible antitrust violations in the gypsum board industry. In 1971, a grand jury was empaneled and the investigation continued for an additional 28 months. In late 1973, an indictment was filed in the United States District Court for the Western District of Pennsylvania charging six major manufacturers and various of their corporate officials with violations of § 1 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U.S.C. § 1.2 5 The indictment charged that the defendants had engaged in a combination and conspiracy "[b]eginning sometime prior to 1960 and continuing thereafter at least until sometime in 1973," App. 34, in restraint of interstate trade and commerce in the manufacture and sale of gypsum board. The alleged combination and conspiracy consisted of: 6 "[A] continuing agreement understanding and concern of action among the defendants and co-conspirators to (a) raise, fix, maintain and stabilize the prices of gypsum board; (b) fix, maintain and stabilize the terms and conditions of sale thereof; and (c) adopt and maintain uniform methods of packaging and handling such gypsum board." Ibid. 7 The indictment proceeded to specify some 13 types of actions taken by conspirators "[i]n formulating and effectuating" the combination and conspiracy, the most relevant of which, for our purposes, is specification (h) which alleged that the conspirators 8 "telephoned or otherwise contacted one another to exchange and discuss current and future published or market prices and published or standard terms and conditions of sale and to ascertain alleged deviations therefrom." 9 The bill of particulars provided additional details about the continuing nature of the alleged exchanges of competitive information and the role played by such exchanges in policing adherence to the various other illegal agreements charged. B 10 The first skirmish in the protracted litigation of this case was a motion for dismissal filed by the defendants alleging that their due process rights had been denied because of unreasonable preindictment delay. The District Court, after holding a five-day evidentiary hearing on the motion, concluded that there was "no evidence of unreasonable delay on the part of the Government," 383 F.Supp. 462, 470 (WD Pa. 1974), and that the defendants were not "prejudiced to any extraordinary degree whatsoever by the chain of events leading to this indictment." Ibid. The District Court denied a motion to dismiss the indictment. Thereafter nine of the defendants entered pleas of nolo contendere and were sentenced.3 The trial of the remaining seven defendants commenced on March, 3, 1975, and lasted some 19 weeks. 11 The focus of the Government's price-fixing case at trial was interseller price verification—that is, the practice allegedly followed by the gypsum board manufacturers of telephoning a competing producer to determine the price currently being offered on gypsum board to a specific customer. The Government contended that these price exchanges were part of an agreement among the defendants, had the effect of stabilizing prices and policing agreed-upon price increases, and were undertaken on a frequent basis until sometime in 1973. Defendants disputed both the scope and duration of the verification activities, and further maintained that those exchanges of price information which did occur were for the purposes of complying with the Robinson-Patman Act4 and preventing customer fraud. These purposes, in defendants' view, brought the disputed communications among competitors within a "controlling circumstance" exception to Sherman Act liability—at the extreme, precluding, as a matter of law, consideration of verification by the jury in determining defendants' guilt on the price-fixing charge, and at the minimum, making the defendants' purposes in engaging in such communications a threshold factual question. 12 The instructions on the verification issue given by the trial judge provided that if the exchanges of price information were deemed by the jury to have been undertaken "in a good faith effort to comply with the Robinson-Patman Act," verification standing alone would not be sufficient to establish an illegal price-fixing agreement. The paragraphs immediately following, however, provided that the purpose was essentially irrelevant if the jury found that the effect of verification was to raise, fix, maintain, or stabilize prices. The instructions on verification closed with the observation: 13 "The law presumes that a person intends the necessary and natural consequences of his acts. Therefore, if the effect of the exchanges of pricing information was to raise, fix, maintain, and stabilize prices, then the parties to them are presumed, as a matter of law, to have intended that result." 14 The aspects of the charge dealing with the Government's burden in linking a particular defendant to the conspiracy, and the kinds of evidence the jury could properly consider in determining if one or more of the alleged conspirators had withdrawn from or abandoned the conspiracy were also a subject of some dispute between the judge and defense counsel. On the former, the disagreement was essentially over the proper specificity of the charge. Defendants requested a charge directing the jury to determine "what kind of agreement or understanding, if any, existed as to each defendant" before any could be found to be a member of the conspiracy. The trial judge was unwilling to give this precise instruction and instead emphasized at several points in the charge the jury's obligation to consider the evidence regarding the involvement of each defendant individually, and to find, as a precondition to liability, that each defendant was a knowing participant in the alleged conspiracy.5 15 On the matter of withdrawal from the conspiracy, defendants sought an instruction stating explicitly that evidence of vigorous price competition during the period covered by the indictment could be considered by the jury as indicating abandonment of the charged conspiracy by one or more of the defendants. Substantial evidence on this subject had been presented by the defendants in the course of the trial. The judge again was unwilling to accept defendants' construction of the applicable law and substituted an instruction specifying that withdrawal had to be established by either affirmative notice to each other member of the conspiracy or by disclosure of the illegal enterprise to law enforcement officials. The trial judge allowed the defendants to argue their theory of withdrawal to the jury despite his unwillingness to refer to it explicitly in his charge. C 16 The jury retired to deliberate early on the evening of Tuesday, July 8, 1975. Supplemental instructions were given in response to questions from the jury on Wednesday and Thursday, and the hours of deliberation were shortened on Friday after the court was informed that some of the jurors were exhausted and not feeling well. On Saturday, after responding to further requests from the jury, the judge, sua sponte, in open court, used the supplemental instruction approved by the Court of Appeals6 to remind the jurors of their obligation to continue the deliberations. Essentially the same instruction was given to the jury again on Sunday, after the judge had received a note detailing the jury's inability to reach a unanimous verdict. 17 On Monday, the court received yet another note from the jury, this time stating that the foreman wished to "discuss the condition of the Jury" and to "seek further guidance" from the judge The judge suggested to counsel that he confer privately with the foreman and that a transcript of the meting be kept but impounded. The judge indicated that if his suggestion was rejected he would simply deny the foreman's request for the meeting. In response to questions from counsel, the judge stated that the purpose of the meeting would be to determine if the jury was in serious physical condition, and he further indicated that no instructions on the law would be given to the foreman without calling in the jury and instructing them in open court with counsel present.7 After further discussion, all counsel agreed, albeit somewhat reluctantly, to the proposed meeting. 18 Most of the discussion between the jury foreman and the judge concerned the deteriorating state of health of the jurors after almost five months on the case followed by five days of intensive deliberations and the existence of personality conflicts among the members of the panel. The foreman also stressed at least twice during the conversation with the judge his belief that the jury was unable to reach a verdict and that further discussion would not eliminate the disagreements which existed. The judge indicated that while he would take into consideration what the foreman had said, he wanted the jury to continue its deliberations. Near the close of the meeting, the following colloquy took place: 19 "THE COURT. I would like to ask the jurors to continue their deliberations and I will take into consideration what you have told me. That is all I can say. 20 "MR. RUSSELL. I appreciate it. It is a situation I don't know how to help you get what you are after. 21 "THE COURT. Oh, I am not after anything. 22 "MR. RUSSELL. You are after a verdict one way or the other. 23 "THE COURT. Which way it goes doesn't make any difference to me."8 24 Shortly thereafter, the foreman returned to the jury room and deliberations continued. The judge then informed counsel, in abbreviated fashion, what had transpired at the meeting with the foreman, and of his direction that the deliberations continue.9 Defense counsel asked to see the transcript of the in camera meeting and moved for a mistrial because of the jury's apparent deadlock. These requests were denied,10 although the judge indicated that if no verdict were rendered by the following Friday, he would then reconsider the mistrial motions. The following morning, the jury returned guilty verdicts against each of the defendants. D 25 The Court of Appeals for the Third Circuit reversed the convictions. 550 F.2d 115 (1977). The panel was unanimous in its rejection of the claim of preindictment delay, but divided over the proper disposition of the remaining issues. 26 Two judges agreed that the trial judge erred in instructing the jury that an effect on prices resulting from an agreement to exchange price information made out a Sherman Act violation regardless of whether respondents' sole purpose in engaging in such exchanges was to establish a defense to price-discrimination charges. Instead, they regarded such a purpose, if certain conditions were met,11 as constituting a "controlling circumstance" which, under United States v. Container Corp., 393 U.S. 333, 89 S.Ct. 510, 21 L.Ed.2d 526 (1969), would excuse what might otherwise constitute an antitrust violation. One judge considered the instructions regarding the purpose and scope of the conspiracy and the kinds of conduct necessary to demonstrate a withdrawal therefrom to be infirm, while another concluded that the convictions should be reversed because the trial judge "improperly induced" the jury into reaching a verdict during the in camera conversation with the foreman. 27 One judge, in dissent, would have sustained the convictions. He regarded the charge on verification to be consistent with Container Corp., and rejected the notion that the Robinson-Patman Act required the exchange of price information even in the limited circumstances identified by the majority. Neither of the alleged infirmities in the general conspiracy instructions, in his view, afforded any basis for reversal, and he disagreed with the characterization of the trial judge's conduct as coercing a verdict. 28 We granted certiorari, 434 U.S. 815, 98 S.Ct. 52, 54 L.Ed.2d 71 (1977), and we affirm. II 29 We turn first to consider the jury instructions regarding the elements of the price-fixing offense charged in the indictment. Although the trial judge's instructions on the price-fixing issue are not without ambiguity, it seems reasonably clear that he regarded an effect on prices as the crucial element of the charged offense. The jury was instructed that if it found interseller verification had the effect of raising, fixing, maintaining, or stabilizing the price of gypsum board, then such verification could be considered as evidence of an agreement to so affect prices. They were further charged, and it is this point which gives rise to our present concern, that "if the effect of the exchanges of pricing information was to raise, fix, maintain, and stabilize prices, then the parties to them are presumed, as a matter of law, to have intended that result." App. 1722. (Emphasis added.) The Government characterizes this charge as entirely consistent with "this Court's long-standing rule that an agreement among sellers to exchange information on current offering prices violates Section 1 of the Sherman Act if it has either the purpose or the effect of stabilizing prices," Reply Brief for United States 1, and relies primarily on our decision in United States v. Container Corp., supra, a civil case, to support its position. See also American Column & Lumber Co. v. United States, 257 U.S. 377, 42 S.Ct. 114, 66 L.Ed. 284 (1921); United States v. American Linseed Oil Co., 262 U.S. 371, 43 S.Ct. 607, 67 L.Ed. 1035 (1923); Maple Flooring Mfg. Assn. v. United States, 268 U.S. 563, 45 S.Ct. 578, 69 L.Ed. 1093 (1925); Cement Mfrs. Protective Assn. v. United States, 268 U.S. 588, 45 S.Ct. 586, 69 L.Ed. 1104 (1925). In this view, the trial court's instructions would not be erroneous, even if interpreted, as they were by the Court of Appeals, to direct the jury to convict if it found that verification had an effect on prices, regardless of the purpose of the respondents. The Court of Appeals rejected the Government's "effects alone" test, holding instead that in certain limited circumstances, a purpose of complying with the Robinson-Patman Act would constitute a controlling circumstance xcusing Sherman Act liability, and hence an instruction allowing the jury to ignore purpose could not be sustained. 30 We agree with the Court of Appeals that an effect on prices, without more, will not support a criminal conviction under the Sherman Act, but we do not base that conclusion on the existence of any conflict between the requirements of the Robinson-Patman and the Sherman Acts.12 Rather, we hold that a defendant's state of mind or intent is an element of a criminal antitrust offense which must be established by evidence and inferences drawn therefrom and cannot be taken from the trier of fact through reliance on a legal presumption of wrongful intent from proof of an effect on prices. Cf. Morissette v. United States, 342 U.S. 246, 274-275, 72 S.Ct. 240, 255, 96 L.Ed. 288 (1952). Since the challenged instruction, as we read it, had this prohibited effect, it is disapproved. We are unwilling to construe the Sherman Act as mandating a regime of strict-liability criminal offenses.13 31 We start with the familiar proposition that "[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1951). See also United States v. Freed, 401 U.S. 601, 613, 91 S.Ct. 1112, 1120, 28 L.Ed.2d 356 (1971) (BRENNAN, J., concurring in judgment); United States v. Balint, 258 U.S. 250, 251-253, 42 S.Ct. 301, 302, 66 L.Ed. 604 (1922). In a much-cited passage in Morissette v. United States, supra, 342 U.S., at 250-251, 72 S.Ct., at 243, Mr. Justice Jackson speaking for the Court observed: 32 "The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory 'But I didn't mean to,' and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a 'vicious will.' " (Footnote omitted.) 33 Although Blackstone's requisite "vicious will" has been replaced by more sophisticated and less colorful characterizations of the mental state required to support criminality, see ALI, Model Penal Code § 2.02 (Prop. Off. Draft 1962), intent generally remains an indispensable element of a criminal offense. This is as true in a sophisticated criminal antitrust case as in one involving any other criminal offense. 34 This Court, in keeping with the common-law tradition and with the general injunction that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity," Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971), has on a number of occasions read a state-of-mind component into an offense even when the statutory definition did not in terms so provide. See, e. g., Morissette v. United States, supra. Cf. Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). Indeed, the holding in Morissette can be fairly read as establishing, at least with regard to crimes having their origin in the common law, an interpretative presumption that mens rea is required. "[M]ere omission . . . of intent [in the statute] will not be construed as eliminating that element from the crimes denounced"; instead Congress will be presumed to have legislated against the background of our traditional legal concepts which render intent a critical factor, and "absence of contrary direction [will] be taken as satisfaction with widely accepted definitions, not as a departure from them." 342 U.S., at 263, 72 S.Ct., at 250. 35 While strict-liability offenses are not unknown to the criminal law and do not invariably offend constitutional requirements, see Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 30 S.Ct. 663, 54 L.Ed. 930 (1910), the limited circumstances in which Congress has created and this Court has recognized such offenses, see e. g., United States v. Balint, supra; United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 (1922); United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943); United States v. Freed, supra, attest to their generally disfavored status. See generally ALI, Model Penal Code, Comment on § 2.05, p. 140 (Tent. Draft No. 4, 1955); W. LaFave & A. Scott, Criminal Law 222-223 (1972). Certainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement. In the context of the Sherman Act, this generally inhospitable attitude to non-mens rea offenses is reinforced by an array of considerations arguing against treating antitrust violations as strict-liability crimes. B 36 The Sherman Act, unlike most traditional criminal statutes, does not, in clear and categorical terms, precisely identify the conduct which it proscribes.14 Both civil remedies and criminal sanctions are authorized with regard to the same generalized definitions of the conduct proscribed—restraints of trade or commerce and illegal monopolization—without reference to or mention of intent or state of mind. Nor has judicial elaboration of the Act always yielded the clear and definitive rules of conduct which the statute omits; instead open-ended and fact-specific standards like the "rule of reason" have been applied to broad classes of conduct falling within the purview of the Act's general provisions. See, e. g., Standard Oil Co. v. United States, 221 U.S. 1, 60, 31 S.Ct. 502, 515, 55 L.Ed. 619 (1911); United States v. Topco Associates, 405 U.S. 596, 607, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515 (1972); Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49, 97 S.Ct. 2549, 2562, 53 L.Ed.2d 568 (1977). Simply put, the Act has not been interpreted as if it were primarily a criminal statute; it has been construed to have a "generality and adaptability comparable to that found to be desirable in constitutional provisions." Appalachian Coals, Inc. v. United States, 288 U.S. 344, 359-360, 53 S.Ct. 471, 473-474, 77 L.Ed. 825 (1933). See generally 2 P. Areeda & D. Turner, Antitrust Law § 310 (1978). 37 Although in Nash v. United States, 229 U.S. 373, 376-378, 33 S.Ct. 780, 781-782, 57 L.Ed. 1232 (1913), the Court held that the indeterminancy of the Sherman Act's standards did not constitute a fatal constitutional objection to their criminal enforcement, nevertheless, this factor has been deemed particularly relevant by those charged with enforcing the Act in accommodating its criminal and remedial sanctions. The 1955 Report of the Attorney General's National Committee to Study the Antitrust Laws concluded that the criminal provisions of the Act should be reserved for those circumstances where the law was relatively clear and the conduct egregious: 38 "The Sherman Act, inevitably perhaps, is couched in language broad and general. Modern business patterns moreover are so complex that market effects of proposed conduct are only imprecisely predictable. Thus, it may be difficult for today's businessman to tell in advance whether projected actions will run afoul of the Sherman Act's criminal strictures. With this hazard in mind, we believe that criminal process should be used only where the law is clear and the facts reveal a flagrant offense and plain intent unreasonably to restrain trade." Report of the Attorney General's National committee to Study the Antitrust Laws 349 (1955). 39 The Antitrust Division of the Justice Department took a similar, though slightly more moderate, position in its enforcement guidelines issued contemporaneously with the 1955 Report of the Attorney General's Committee: 40 "In general, the following types of offenses are prosecuted criminally: (1) price fixing; (2) other violations of the Sherman Act where there is proof of a specific intent to restrain trade or to monopolize; (3) a less easily defined category of cases which might generally be described as involving proof of use of predatory practices (boycotts for example) to accomplish the objective of the combination or conspiracy; (4) the fact that a defendant has previously been convicted of or adjudged to have been, violating the antitrust laws may warrant indictment for a second offense. . . . The Division feels free to seek an indictment in any case where a prospective defendant has knowledge that practices similar to those in which he is engaging have been held to be in violation of the Sherman Act in a prior civil suit against other persons."15 Id., at 350. 41 While not dispositive of the question now before us, the recommendations of the Attorney General's Committee and the guidelines promulgated by the Justice Department highlight the same basic concerns which are manifested in our general requirement of mens rea in criminal statutes and suggest that these concerns are at least equally salient in the antitrust context. 42 Close attention to the type of conduct regulated by the Sherman Act buttresses this conclusion. With certain exceptions for conduct regarded as per se illegal because of its unquestionably anticompetitive effects, see, e. g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940), the behavior proscribed by the Act is often difficult to distinguish from the gray zone of socially acceptable and economically justifiable business conduct. Indeed, the type of conduct charged in the indictment in this case—the exchange of price information among competitors—is illustrative in this regard.16 The imposition of criminal liability on a corporate official, or for that matter on a corporation directly, for engaging in such conduct which only after the fact is determined to violate the statute bec use of anticompetitive effects, without inquiring into the intent with which it was undertaken, holds out the distinct possibility of overdeterrence; salutary and procompetitive conduct lying close to the borderline of impermissible conduct might be shunned by businessmen who chose to be excessively cautious in the face of uncertainty regarding possible exposure to criminal punishment for even a good-faith error of judgment.17 See 2 P. Areeda & D. Turner, Antitrust Law 29 (1978); R. Bork, The Antitrust Paradox 78 (1978); Kadish, Some Observations On the Use of Criminal Sanctions in Enforcing Economic Regulations, 30 U.Chi.L.Rev. 423, 441-442 (1963). Further, the use of criminal sanctions in such circumstances would be difficult to square with the generally accepted functions of the criminal law. See Hart, The Aims of the Criminal Law, 23 Law & Contemp.Prob. 401, 422-425 (1958); ALI, Model Penal Code, Comment on § 2.05, p. 140 (Tent. Draft No. 4, 1955). The criminal sanctions would be used, not to punish conscious and calculated wrongdoing at odds with statutory proscriptions, but instead simply to regulate business practices regardless of the intent with which they were undertaken. While in certain cases we have imputed a regulatory purpose to Congress in choosing to employ criminal sanctions, see, e. g., United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922), the availability of a range of nonpenal alternatives to the criminal sanctions of the Sherman Act negates the imputation of any such purpose to Congress in the instant context.18 See generally Baker, To Indict or Not to Indict: Prosecutorial Discretion in Sherman Act Enforcement, 63 Cornell L.Rev. 405 (1978). 43 For these reasons, we conclude that the criminal offenses defined by the Sherman Act should be construed as including intent as an element.19 C 44 Having concluded that intent is a necessary element of a criminal antitrust violation, the task remaining is to treat the practical aspects of this requirement.20 As we have noted, the language of the Act provides minimal assistance in determining what standard of intent is appropriate, and the sparse legislative history of the criminal provisions is similarly unhelpful. We must therefore turn to more general sources and traditional understandings of the nature of the element of intent in the criminal law. In so doing, we must try to avoid "the variety, disparity and confusion" of judicial definitions of the "requisite but elusive mental element" of criminal offenses. Morissette v. United States, 342 U.S., at 252, 72 S.Ct., at 244. 45 The ALI Model Penal Code is one source of guidance upon which the Court has relied to illuminate questions of this type. Cf. Leary v. United States, 395 U.S. 6, 46 n. 93, 89 S.Ct. 1532, 1553 n. 93, 23 L.Ed.2d 57 (1969); Turner v. United States, 396 U.S. 398, 416 n. 29, 90 S.Ct. 642, 652 n. 29, 24 L.Ed.2d 610 (1970). Recognizing that "mens rea is not a unitary concept," United States v. Freed, 401 U.S., at 613, 91 S.Ct., at 1120 (BRENNAN, J., concurring in judgment), the Code enumerates four possible levels of intent—purpose, knowledge, recklessness, and neglig nce. In dealing with the kinds of business decisions upon which the antitrust laws focus, the concepts of recklessness and negligence have no place. Our question instead is whether a criminal violation of the antitrust laws requires, in addition to proof of anticompetitive effects, a demonstration that the disputed conduct was undertaken with the "conscious object" of producing such effects, or whether it is sufficient that the conduct is shown to have been undertaken with knowledge that the proscribed effects would most likely follow. While the difference between these formulations is a narrow one, see ALI, Model Penal Code, Comment on § 2.02, p. 125 (Tent. Draft No. 4, 1955), we conclude that action undertaken with knowledge of its probable consequences and having the requisite anticompetitive effects can be a sufficient predicate for a finding of criminal liability under the antitrust laws.21 46 Several considerations fortify this conclusion. The element of intent in the criminal law has traditionally been viewed as a bifurcated concept embracing either the specific requirement of purpose or the more general one of knowledge or awareness. 47 "[I]t is now generally accepted that a person who acts (or omits to act) intends a result of his act (or omission) under two quite different circumstances: (1) when he consciously desires that result, whatever the likelihood of that result happening from his conduct; and (2) when he knows that the result is practically certain to follow from his conduct, whatever his desire may be as to that result." W. LaFave & A. Scott, Criminal Law 196 (1972). 48 See also G. Williams, Criminal Law: The General Part §§ 16, 18 (2d ed. 1961); Cook, Act, Intention, and Motive in the Criminal Law, 26 Yale L.J. 645, 653-658 (1917); Perkins, A Rationale of Mens Rea, 52 Harv.L.Rev. 905, 910-911 (1939). Generally this limited distinction between knowledge and purpose has not been considered important since "there is good reason for imposing liability whether the defendant desired or merely knew of the practical certainty of the results." LaFave & Scott, supra, at 197. See also ALI, Model Penal Code, Comment on § 2.02, p. 125 (Tent. Draft No. 4, 1955). In either circumstance, the defendants are consciously behaving in a way the law prohibits, and such conduct is a fitting object of criminal punishment. See Working Papers of the National Commission on Reform of Federal Criminal Laws 124 (1970). 49 Nothing in our analysis of the Sherman Act persuades us that this general understanding of intent should not be applied to criminal antitrust violations such as charged here. The business behavior which is likely to give rise to criminal antitrust charges is conscious behavior normally undertaken only after a full consideration of the desired results and a weighing of the costs, benefits, and risks. A requirement of proof not only of this knowledge of likely effects, but also of a conscious desire to bring them to fruition or to violate the law would seem, particularly in such a context, both unnecessarily cumulative and unduly burdensome. Where carefully planned and calculated conduct is being scrutinized in the context of a criminal prosecution, the perpetrator's knowledge of the anticipated consequences is a sufficient predicate for a finding of criminal intent. D 50 When viewed in terms of this standard, the jury instructions on the price-fixing charge cannot be sustained. "A conclusive presumption [of intent] which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense." Morissette, supra, 342 U.S., at 275, 72 S.Ct., at 256. The challenged jury instruction, as we read it, had precisely this effect; the jury was told that the requisite intent followed, as a matter of law, from a finding that the exchange of price information had an impact on prices. Although an effect on prices may well support an inference that the defendant had knowledge of the probability of such a consequence at the time he acted, the jury must remain free to consider additional evidence before accepting or rejecting the inference. Therefore, although it would be correct to instruct the jury that it may infer intent from an effect on prices, ultimately the decision on the issue of intent must be left to the trier of fact alone. The instruction given invaded this factfinding function.22 III 51 Our construction of the Sherman Act to require proof of intent as an element of a criminal antitrust violation leaves unresolved the question upon which the Court of Appeals focused, whether verification of price concessions with competitors for the sole purpose of taking advantage of the § 2(b) meeting-competition defense should be treated as a "controlling circumstance" precluding liability under § 1 of the Sherman Act. We now turn to that question.23 52 In Cement Mfrs. Protective Assn. v. United States, 268 U.S. 588, 45 S.Ct. 586, 69 L.Ed. 1104 (1925), the Court held exempt from Sherman Act § 1 liability an exchange of price information among competitors because the exchange of information was necessary to protect the cement manufacturers from fraudulent behavior by contractors.24 Over 40 years later, in United States v. Container Corp., 393 U.S., at 335, 89 S.Ct., at 511, Mr. Justice Douglas characterized the Cement holding in the following terms: 53 "While there was present here, as in Cement Mfrs. Protective Assn. v. United States, 268 U.S. 588, [45 S.Ct. 586, 69 L.Ed. 1104,] an exchange of prices to specific customers, there was absent the controlling circumstance, viz., that cement manufacturers, to protect themselves from delivering to contractors more cement than was needed for a specific job and thus receiving a lower price, exchanged price information as a means of protecting their legal rights from fraudulent inducements to deliver more cement than needed for a specific job." 54 The use of the phrase "controlling circumstance" in Container Corp. implied that the exception from Sherman Act liability recognized in Cement Mfrs. was not necessarily limited to the special circumstances of that case, although the exact scope of the exception remained largely undefined. 55 Since Container Corp., several courts have read the controlling-circumstance exception as encompassing exchanges of price information when undertaken for the purpose of compliance with § 2(b) of the Clayton Act, as amended by the Robinson-Patman Act. See, e. g., Belliston v. Texaco, Inc., 455 F.2d 175, 181-182 (CA10 1972); Wall Products Co. v. National Gypsum Co., 326 F.Supp. 295, 312-315 (N.D.Cal.1971).25 The Court of Appeals in the instant case essentially adopted the same tack—albeit with some additional limitations26 —finding such a step necessary to eliminate a perceived conflict between the Sherman Act's proscriptions regarding the exchange of price information among competitors and the claimed necessity of such exchanges to perfect the § 2(b) defense. The Government challenges that res lution on two grounds: first, that there is no general controlling-circumstance exception to the Sherman Act, and second, that, in any event, there is no conflict between the two antitrust statutes which would require the prohibitions of the Sherman Act to be tempered even to the degree mandated by the Court of Appeals' carefully circumscribed holding in this case. We agree generally with the Government as to the proper accommodation of the Sherman and Robinson-Patman Acts, and therefore find it unnecessary to address the more general question going to the existence and proper scope of the so-called controlling-circumstance exception. B 56 Section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a) (1976 ed.), embodies a general prohibition of price discrimination between buyers when an injury to competition is the consequence. The primary exception to the § 2(a) bar is the meeting-competition defense which is incorporated as a proviso to the burden-of-proof requirements set out in § 2(b): 57 "Provided, however, That nothing herein contained shall prevent a seller rebutting the prima facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor." 58 The role of the § 2(b) proviso in tempering the § 2(a) prohibition of price discrimination was highlighted in Standard Oil Co. v. FTC, 340 U.S. 231, 71 S.Ct. 240, 95 L.Ed. 239 (1951). There we recognized the potential tension between the rationales underlying the Sherman and Robinson-Patman Acts and sought to effect a partial accommodation by construing § 2(b) to provide an absolute defense to liability for price discrimination. 59 "We need not now reconcile, in its entirety, the economic theory which underlies the Robinson-Patman Act with that of the Sherman and Clayton Acts. It is enough to say that Congress did not seek by the Robinson-Patman Act either to abolish competition or so radically to curtail it that a seller would have no substantial right of selfdefense against a price raid by a competitor. For example, if a large customer requests his seller to meet a temptingly lower price offered to him by one of his seller's competitors, the seller may well find it essential, as a matter of business survival, to meet that price rather than to lose the customer. . . . There is . . . plain language and established practice which permits a seller, through § 2(b), to retain a customer by realistically meeting in good faith the price offered to that customer, without necessarily changing the seller's price to its other customers." 340 U.S. at 249-250, 71 S.Ct. at 249. 60 In FTC v. A. E. Staley Mfg. Co., 324 U.S. 746, 65 S.Ct. 971, 89 L.Ed. 1338 (1945), the Court provided the first and still the most complete explanation of the kind of showing which a seller must make in order to satisfy the good-faith requirement of the § 2(b) defense: 61 "Section 2(b) does not require the seller to justify price discriminations by showing that in fact they met a competitor's price. But it does place on the seller the burden of showing that the price was made in good faith to meet a competitor's. . . . We agree with the Commission that the statute at least requires the seller, who has knowingly discriminated in price, to show the existence of facts which would lead a reasonable and prudent person to believe that the granting of a lower price would in fact meet the equally low price of a competitor." Id., at 759-760, 65 S.Ct., at 9 7. 62 Application of these standards to the facts in Staley led to the conclusion that the § 2(b) defense had not been made out. The record revealed that the lower price had been based simply on reports of salesmen, brokers, or purchasers with no efforts having been made by the seller "to investigate or verify" the reports or the character and reliability of the informants. 324 U.S., at 758, 65 S.Ct., at 976. Similarly, in Corn Products Co. v. FTC, 324 U.S. 726, 65 S.Ct. 961, 89 L.Ed. 1320 (1945), decided the same day, the § 2(b) defense was not allowed because "[t]he only evidence said to rebut the prima facie case . . . of the price discriminations was given by witnesses who had no personal knowledge of the transactions, and was limited to statements of each witness's assumption or conclusion that the price discriminations were justified by competition." 324 U.S., at 741, 65 S.Ct., at 968. 63 Staley's "investigate or verify" language coupled with Corn Products' focus on "personal knowledge of the transactions" have apparently suggested to a number of courts that, at least in certain circumstances, direct verification of discounts between competitors may be necessary to meet the burden-of-proof requirements of the § 2(b) defense. See Gray v. Shell Oil Co., 469 F.2d 742, 746-747 (CA9 1972); Belliston v. Texaco, Inc., 455 F.2d, at 181-182; Webster v. Sinclair Refining Co., 338 F.Supp. 248, 251-252 (SD Ala.1971); Wall Products Co. v. National Gypsum Co., 326 F.Supp., at 312-315; Di-Wall, Inc. v. Fibreboard Corp., CCH 1970 Trade Cases ¶ 73,155 (ND Cal.1970). In none of these cases were the courts called upon to address directly the question of whether interseller verification was actually required to satisfy § 2(b)'s good-faith standard; instead, the issue was presented only obliquely in the form of a defense to the alleged Sherman Act violation. The Belliston and Webster cases accepted the defense despite the absence of evidence that alternative means of corroborating the claimed price reduction had been exhausted, while the Gray and Wall Products courts found the communication between sellers permissible only after other alternatives had been exhausted.27 The Court of Appeals critically and perceptively analyzed these cases and concluded that only a very narrow exception to Sherman Act liability should be recognized; that exception would cover the relatively few situations where the veracity of the buyer seeking the matching discount was legitimately in doubt, other reasonable means of corroboration were unavailable to the seller, and the interseller communication was for the sole purpose of complying with the Robinson-Patman Act. Despite the court's efforts to circumscribe the scope of the exception it was constrained to recognize, we find its analysis unacceptable. C 64 A good-faith belief, rather than absolute certainty, that a price concession is being offered to meet an equally low price offered by a competitor is sufficient to satisfy the § 2(b) defense. While casual reliance on uncorroborated reports of buyers or sales representatives without further investigation may not, as we noted earlier, be sufficient to make the requisite showing of good faith, nothing in the language of § 2(b) or the gloss on that language in Staley and Corn Products indicates that direct discussions of price between competitors are required. Nor has any court, so far as we are aware, ever imposed such a requirement.28 See Rowe, Pricing and the Robinson-Patman Act, 41 A.B.A. Antitrust L.J. 98, 100-102 (1971); ABA Section of Antitrust Law, Antitrust Law Developments 145 n. 241 (1975). On the contrary, the § 2(b) defense has been successfully invoked in the absence of in erseller verification on numerous occasions, see, e. g., International Air Industries, Inc. v. American Excelsior Co., 517 F.2d 714, 725-726 (CA5 1975); Cadigan v. Texaco, Inc., 492 F.2d 383 (CA9 1974); Jones v. Borden Co., 430 F.2d 568, 572-574 (CA5 1970); National Dairy Products Corp. v. FTC, 395 F.2d 517, 523 (CA7 1968). And in Kroger Co. v. FTC, 438 F.2d 1372, 1376-1377 (CA6 1971), aff'g Beatrice Foods Co., 76 F.T.C. 719 (1969), the defense was recognized despite the fact that the price concession was ultimately found to have undercut that of the competition and thus technically to have fallen outside the "meet not beat" strictures of the defense. As these cases indicate, and as the Federal Trade Commission observed, it is the concept of good faith which lies at the core of the meeting-competition defense, and good faith. 65 "is a flexible and pragmatic, not technical or doctrinaire, concept. . . . Rigid rules and inflexible absolutes are especially inappropriate in dealing with the § 2(b) defense; the facts and circumstances of the particular case, not abstract theories or remote conjectures, should govern its interpretation and application." Continental Baking Co., 63 F.T.C. 2071, 2163 (1963). 66 The so-called problem of the untruthful buyer which concerned the Court of Appeals does not in our view call for a different approach to the § 2(b) defense. The good-faith standard remains the benchmark against which the seller's conduct is to be evaluated, and we agree with the Government and the FTC that this standard can be satisfied by efforts falling short of interseller verification in most circumstances where the seller has only vague, generalized doubts about the reliability of its commercial adversary—the buyer.29 Given the fact-specific nature of the inquiry, it is difficult to predict all the factors the FTC or a court would consider in appraising a seller's good faith in matching a competing offer in these circumstances. Certainly, evidence that a seller had received reports of similar discounts from other customers, cf. Jones v. Borden Co., supra, 430 F.2d, at 572-573; or was threatened with a termination of purchases if the discount were not met, cf. International Air Industries, Inc. v. American Excelsior Co., supra, 517 F.2d, at 726; Cadigan v. Texaco, Inc., supra, 492 F.2d, at 386, would be relevant in this regard. Efforts to corroborate the reported discount by seeking documentary evidence or by appraising its reasonableness in terms of available market data would also be probative as would the seller's past experience with the particular buyer in question.30 67 There remains the possibility that in a limited number of situations a seller may have substantial reasons to doubt the accuracy of reports of a competing offer and may be unable to corroborate such reports in any of the generally accepted ways. Thus the defense may be rendered unavailable since unanswered questions about the reliability of a buyer's representations may well be inconsistent with a good-faith belief that a competing offer had in fact been made.31 As an abstract proposition, resort to interseller verification as a means of checking the buyer's reliability seems a possible solution to the seller's plight, but careful examination reveals serious problems with the practice. 68 Both economic theory and common human experience suggest that interseller verification—if undertaken on an isolated and infrequent basis with no provision for reciprocity or cooperation will not serve its putative function of corroborating the representations of unreliable buyers regarding the existence of competing offers. Price concessions by oligopolists generally yield competitive advantages only if secrecy can be maintained; when the terms of the concession are made publicly known, other competitors are likely to follow and any advantage to the initiator is lost in the process. See generally F. Scherer, Industrial Market Structure and Economic Performance 208-209, 449 (1970); P. Areeda, Antitrust Analysis 230-231 (2d ed. 1974); Note, Meeting Competition Under the Robinson-Patman Act, 90 Harv.L.Rev. 1476, 1480-1481 (1977). See also United States v. Container Corp., 393 U.S., at 337, 89 S.Ct., at 512. Thus, if one seller offers a price concession for the purpose of winning over one of his competitor's customers, it is unlikely that the same seller will freely inform its competitor of the details of the concession so that it can be promptly matched and diffused. Instead, such a seller would appear to have at least as great an incentive to misrepresent the existence or size of the discount as would the buyer who received it. Thus verification, if undertaken on a one-shot basis for the sole purpose of complying with the § 2(b) defense, does not hold out much promise as a means of shoring up buyers' representations. 69 The other variety of i terseller verification is, like the conduct charged in the instant case, undertaken pursuant to an agreement, either tacit or express, providing for reciprocity among competitors in the exchange of price information. Such an agreement would make little economic sense, in our view, if its sole purpose were to guarantee all participants the opportunity to match the secret price concessions of other participants under § 2(b). For in such circumstances, each seller would know that his price concession could not be kept from his competitors and no seller participating in the information-exchange arrangement would, therefore, have any incentive for deviating from the prevailing price level in the industry. See United States v. Container Corp., supra, at 336-337, 89 S.Ct., at 512. Regardless of its putative purpose, the most likely consequence of any such agreement to exchange price information would be the stabilization of industry prices. See Scherer, supra, at 449; Note, Antitrust Liability for an Exchange of Price Information—What Happened to Container Corp., 63 Va.L.Rev. 639, 666 (1977). Instead of facilitating use of the § 2(b) defense, such an agreement would have the effect of eliminating the very price concessions which provide the main element of competition in oligopolistic industries and the primary occasion for resort to the meeting-competition defense. 70 Especially in oligopolistic industries such as the gypsum board industry, the exchange of price information among competitors carries with it the added potential for the development of concerted price-fixing arrangements which lie at the core of the Sherman Act's prohibitions. The Department of Justice's 1977 Report on the Robinson-Patman Act focused on the growing use of the Act as a cover for price fixing; former Antitrust Division Assistant Attorney General Kauper discussed the mechanics of the process: 71 "And thus you find in some industries relatively extensive exchanges of price information for the purpose, at least the stated purpose, of complying with the Robinson-Patman Act . . . . 72 "Now, the mere exchange of price information itself may tend to stabilize prices. But I think it is also relatively common that once that exchange process begins, certain understandings go along with it—that we will exchange prices, but it will be understood, for example, you will not undercut my prices. 73 "And from there it is a rather easy step into a full-fledged price-fixing agreement. I think we have seen that from time to time, and I suspect we will continue to see it as long as there continues to be a need to justify particular price discriminations in the terms of the Robinson-Patman Act." United States Department of Justice, Report on the Robinson-Patman Act 58-61 (1977). 74 We are left, therefore, on the one hand, with doubts about both the need for and the efficacy of interseller verification as a means of facilitating compliance with § 2(b), and, on the other, with recognition of the tendency for price discussions between competitors to contribute to the stability of oligopolistic prices and open the way for the growth of prohibited anticompetitive activity. To recognize even a limited "controlling circumstance" exception for interseller verification in such circumstances would be to remove from scrutiny under the Sherman Act conduct falling near its core with no assurance, and indeed with serious doubts, that competing antitrust policies would be served thereby. In Automatic Canteen Co. v. FTC, 346 U.S. 61, 74, 73 S.Ct. 1017, 1024, 97 L.Ed. 1454 (1953), the Court suggested that as a general rule the Robinson-Patman Act should be construed so as to insure its coherence with "the broader antitrust policies that have been laid down by Congress"; that observation buttresses our conclusion that exchanges of price information—even when putatively for purposes of Robinson-Patman Act compliance must remain subject to close scrutiny under the herman Act.32 IV 75 One judge of the Court of Appeals was of the view that reversal was required not only because of infirmities in the antitrust instruction, but also because the trial judge had "encroach[ed] on [the] jury['s] authority" and had foreclosed "a possible 'no verdict' outcome." 550 F.2d, at 134 (Adams, J., concurring). Our own review of the record and the circumstances surrounding the deliberations of the jury, and in particular the ex parte communications between the judge and jury foreman, leads us to the same conclusion. 76 After hearing a mass of testimony for nearly five months, the jurors were sequestered when deliberations commenced. On the second and third days of deliberations, supplemental instructions were given in response to jury questions; on the fourth day, the hours of deliberations were shortened because of reported nervous tension among the jurors; on the fifth day, the judge sua sponte delivered what amounted to a modified Allen charge33 in the course of providing further answers to questions from the jury; and on the sixth day, the modified Allen charge was repeated, this time in response to a note from the jury that it was unable to reach a verdict. Against this background of internal pressures and apparent disagreements and confusion among the jurors, the jury foreman, on the morning of the seventh day of deliberations, requested a meeting with the judge "to discuss the condition of the Jury and further guidance." The District Judge suggested that he meet alone with the jury foreman and counsel acquiesced. The transcript of the meeting, which was initially impounded but released for purposes of the appeal, contained several references by the foreman to the jury's deadlock, as well as an exchange suggesting the strong likelihood that the foreman carried away from the meeting the impression that the judge wanted a verdict "one way or the other." The judge's report to counsel summarizing the discussion made no reference to either of these matters.34 77 We find this sequence of events disturbing for a number of reasons. Any ex parte meeting or communication between the judge and the foreman of a deliberating jury is pregnant with possibilities for error. This record amply demonstrates that even an experienced trial judge cannot be certain to avoid all the pitfalls inherent in such an enterprise. First, it is difficult to contain, much less to anticipate, the direction the conversation will take at such a meeting. Unexpected questions or comments can generate unintended and misleading impressions of the judge's subjec ive personal views which have no place in his instruction to the jury—all the more so when counsel are not present to challenge the statements. Second, any occasion which leads to communication with the whole jury panel through one juror inevitably risks innocent misstatements of the law and misinterpretations despite the undisputed good faith of the participants. Here, there developed a set of circumstances in which it can fairly be assumed that the foreman undertook to restate to his fellow jurors what he understood the judge to have implied regarding the resolution of the case in a definite verdict "one way or the other." There is of course, no way to determine precisely what the foreman said when he returned to the jury room. 78 Finally, the absence of counsel from the meeting and the unavailability of a transcript or full report of the meeting aggravate the problems of having one juror serve as a conduit for communicating instructions to the whole panel. While all counsel acquiesced to the judge's ex parte conference with the jury foreman, they did so on the express understanding that the judge merely intended—as no doubt at the time he did—to receive from the foreman a report on the state of affairs in the jury room and the prospects for a verdict. Certainly none of the parties waived the right to a full and accurate report of what transpired at the meeting nor did they agree that the judge was to repeat the instructions as to his understandable reluctance to accept the jury's inability to reach a verdict. Because neither counsel received a full report from the judge, they were not aware of the scope of the conversation between the foreman and the judge, of the judge's statement that the jury should continue to deliberate in order to reach a verdict, or of the real risk that the foreman's impression was that a verdict "one way or the other" was required. Counsel were thus denied any opportunity to clear up the confusion regarding the judge's direction to the foreman, which could readily have been accomplished by requesting that the whole jury be called into the courtroom for a clarifying instruction. See Rogers v. United States, 422 U.S. 35, 38, 95 S.Ct. 2091, 2094, 45 L.Ed.2d 1 (1975); Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 81, 39 S.Ct. 435, 436, 63 L.Ed. 853 (1919). Thus, it is not simply the action of the judge in having the private meeting with the jury foreman, standing alone—undesirable as that procedure is which constitutes the error; rather, it is the fact that the ex parte discussion was inadvertently allowed to drift into what amounted to a supplemental instruction to the foreman relating to the jury's obligation to return a verdict, coupled with the fact that counsel were denied any chance to correct whatever mistaken impression the foreman might have taken from this conversation, that we find most troubling. 79 While it is, of course, impossible to gauge what part the disputed meeting played in the jury's action of returning a verdict the following morning, this swift resolution of the issues in the face of positive prior indications of hopeless deadlock, at the very least, gives rise to serious questions in this regard. Cf. Rogers v. United States, supra, 422 U.S., at 40-41, 95 S.Ct., at 2095. In Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965), we held an instruction directing the jury that it had to reach a verdict was reversible error; the logic of Jenkins cannot be said to be inapposite here, given the peculiar circumstances in which discussions between the judge and the foreman took place. 80 We are persuaded that the Court of Appeals would have been justified in reversing the convictions solely because of the risk that the foreman believed the court was insisting on a dispositive verdict; a belief which we must assume was promptly conveyed to the jurors. The unintended direction of the colloquy between the judge and the jury foreman illustrates the hazards of ex parte communications with a deliberating jury or any of its members. V 81 Respondents also challenged in the Court of Appeals the jury instructions regarding participation in the conspiracy and withdrawal therefrom; one judge on the panel concluded that these instructions were infirm. We agree with the Government that the charge concerning participation in the conspiracy, while perhaps not as clear as it might have been, was sufficient. The jury was informed repeatedly that only a single conspiracy was alleged and that liability could only be predicated on the knowing involvement of each defendant, considered individually, in the conspiracy charged. As given,35 the instruction was substantially in accord with those generally given in similar antitrust cases. See ABA Antitrust Section, Jury Instructions in Criminal Antitrust Cases 1964-1976, chs. 10, 28 (1978); 2 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions §§ 55.09, 55.17 (3d ed., 1979). And in any event, the disputed instruction differed in only minor and immaterial respects from the instruction requested by respondents.36 82 We have more difficulty with the instruction on withdrawal from the conspiracy. The jury was charged in the following terms: 83 "In order to find that a defendant abandoned or withdrew from a conspiracy prior to December 27, 1968, you must find, from the evidence, that he or it took some affirmative action to disavow or defeat its purpose. Mere inaction would not be enough to demonstrate abandonment. To withdraw, a defendant either must have affirmatively notified each other member of the conspiracy he will no longer participate in the undertaking so they understand they can no longer expect his participation or acquiescence, or he must make disclosures of the illegal scheme to law enforcement officials. 84 "Thus, once a defendant is shown to have joined a conspiracy, in order for you to find he abandoned the conspiracy, the evidence must show that the defendant took some definite, decisive step, indicating a complete disassociation from the unlawful enterprise." (Emphasis added). 85 Respondents had requested a more expansive instruction which would have specifically allowed the jury to consider a "[r]esumption of competitive behavior, such as intensified price cutting or price wars," as affirmative action showing a withdrawal from the price-fixing enterprise. While the judge allowed this theory to be argued to the jury, he declined to include it in his instructions. The Government now seeks to defend the charge as given on the ground that the first sentence was sufficiently broad to satisfy respondents' concerns, and the third sentence, to which respondents principally object, did not in any meaningful way detract from the generality of the first. 86 We cannot agree. The charge, fairly read, limited the jury's consideration to only two circumscribed and arguably impractical methods of demonstrating withdrawal from the conspiracy.37 Nothing that we have been able to find in the case law suggests, much less commands, that such confining blinders be placed on the jury's freedom to consider evidence regarding the continuing par icipation of alleged conspirators in the charged conspiracy. Affirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators have generally been regarded as sufficient to establish withdrawal or abandonment. See, e. g., Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 803, 56 L.Ed. 1114 (1912); United States v. Borelli, 336 F.2d 376, 385 (CA2 1964). See also Note, Developments in the Law—Criminal Conspiracy, 72 Harv.L.Rev. 920, 958 (1959). We conclude that the unnecessarily confining nature of the instruction, standing alone, constituted reversible error.38 If a new trial takes place, an instruction correcting this error and giving the jury broader compass on the question of withdrawal must be given. 87 Accordingly, the judgment of the Court of Appeals is 88 Affirmed. 89 Mr. Justice STEWART joins all but Part IV of this opinion. 90 Mr. Justice BLACKMUN took no part in the consideration or decision of this case. APPENDIX TO OPINION OF THE COURT 91 [Present: The foreman of the jury and the Court.] 92 The Court. What is your problem, sir? 93 Mr. Russell. I have two problems. And first of all, if I refer to a juror with a sexual gender, I would like it struck, because I would like to say juror. 94 The Court. In other words, if he says he or she, make it neutral. 95 Mr. Russell. The two problems are health and the status of the count. 96 The Court. You can't tell me that now. 97 Mr. Russell. I am not going to tell you what the status is in no way. In fact, I can't tell you, because I can't remember. 98 The Court. All right. 99 Mr. Russell. But first of all, I would like to thank you for that 6:30, because I don't think you would have a jury left. I am not a doctor, but these people are getting very distraught. It is not that they go into a depression and stay there; they go into a depression and they're coming out high. Now I would say at least eight of the jurors are taking some kind of pill. Some of the pills have been even issued by the doctor downstairs. I am not a doctor and I can't judge these things, but I have seen one of [3] these jurors at one time I thought she was going to jump out the window. And I, just for my own sake, without telling you this, I cannot take the responsibility that this could happen. I know this is part of Mr. Keene's job, but like I say, they go high and low, and sometimes by the time I get to Mr. Keene and get him down there, they are perfectly normal again. 100 In fact, one of the instances was when I saw this one girl— 101 The Court. May I ask this: If we discharged—we can excuse one juror for health reasons. Is there any juror we could excuse that would help the situation? If it is more than that, there is no point. 102 Mr. Russell. I think there is more than that, Judge. I am not a doctor, so I can't say. I'm not even sure these are true sicknesses. They seem—I mean, with the high and low, they seem induced, but when a person thinks they are sick, they're generally sick. 103 The Court. It is just as bad, if they think they are. 104 Mr. Russell. As I say, I am not a doctor. I don't like to be a judge, but I think for my own sake, my feelings, it is my responsibility as foreman to tell you these things. I do not want to be responsible for anybody's health. 105 The Court. I don't, either. 106 You recall, though, that before—when I had two alternate jurors, I asked all the jurors if there was anybody who was not physically able to go ahead and everybody wanted to do it. 107 Mr. Russell. I realize that. I think every juror out there wants to do their duty. 108 The Court. See, we have tried this case now for four months. 109 Mr. Russell. This is part of it, I will grant you, but it is not the whole part of it. There is some personality conflicts on the jury that have led to certain situations and I think we have overcome those. 110 The Court. If we continue to deliberate from 9 to 6:30, with a lunch hour, for a while longer— 111 Mr. Russell. What I want to tell you next is—and that is, again, my opinion—and you can tell me I am wrong—and I have to look at it in a different way. We have taken enough ballots now, and we have had enough discussions, and the way it is divided is not going to be settled by any document, any remembrance of testimony. It is based on a belief and even if they—even if they would sign a document today, and you would ask me to get up in the jury box and swear I think this is a true and just verdict, I would have to say no, because I believe in the twelve or multiple system of a jury; that if we are to decide beyond a [5] reasonable doubt, when you get twelve, or whatever the number has to be— 112 The Court. That is what you have to decide. 113 Mr. Russell. ______it proves it beyond a shadow of a doubt. 114 The Court. Not beyond a shadow of a doubt. 115 Mr. Russell. I know. Each individual proves it to himself, but for a man to be convicted guilty, or the company, we do it beyond a reasonable doubt, but if you have twelve, you know it is beyond a shadow of a doubt and you cannot have any conscience over it as far as a juror or anything else. That is the way I feel, Judge. 116 The Court. What are you suggesting? 117 Mr. Russell. I am asking you what I should do. I am to the point______ 118 The Court. I would like this jury to deliberate longer. I say that because, as I say, we have tried it for a considerable period of time. 119 Mr. Russell. Everybody realizes that and I do. 120 The Court. We have individual people here who are concerned and the jury has now deliberated—they deliberated three full days, Wednesday, Thursday and [6] Friday. They deliberated a half a day on Saturday and a half day on Sunday. They are not deliberating a full day, because jurors usually deliberate until eleven or ten at night. 121 Mr. Russell. We know that and we want to thank you. 122 The Court. You have not deliberated that long yet. 123 Mr. Russell. I know that is the way you would like it, but what I am trying to tell you is I don't think deliberation is going to change it. It is not a matter of time anymore. 124 The Court. Are you telling me this jury is hopelessly deadlocked and will never reach a verdict? 125 Mr. Russell. In my opinion, it is. I have to rely on that. I have no experience in this kind of thing. I don't know what people go through in a jury. This is the first time I have ever served on one and it is a new experience and I will never forget it. But it is a terrible responsibility and what I said, if it was a matter of finding a document or finding a part of a testimony that would convince somebody, I would say sure, and good. 126 The Court. All right. 127 For the time being continue your deliberations. I will take into consideration what you have told me. 128 Mr. Russell. As I said, the health problem is something that I think has to be looked at. I don't know how you are going to judge this or whether you call Mr. Keene and ask him or the Marshal's opinion, but I think something ought to be done. 129 The Court. All right. I will take it into consideration. I have to talk to counsel. 130 Mr. Russell. I appreciate that. I didn't expect a decision, but I would like some kind of guidance. 131 The Court. I would like to ask the jurors to continue their deliberations and I will take into consideration what you have told me. That is all I can say. 132 Mr. Russell. I appreciate it. It is a situation I don't know how to help you get what you are after. 133 The Court. Oh, I am not after anything. 134 Mr. Russell. You are after a verdict one way or the other. 135 The Court. Which way it goes doesn't make any difference to me. 136 Mr. Russell. They keep saying, "If you will tell him what the situation is, he might accept it." 137 I said, "He doesn't want to know. He told me that he doesn't want to know what the decision is." 138 The Court. No, I don't want to know that. It would not be proper for me to know. 139 Mr. Russell. You may imply something from what I said. 140 The Court. I can imply something from just watching, but I don't want you to tell me. That would be a breach of your duty. 141 Mr. Russell. I have told you as best I can. 142 The Court. Thank you. You tell them to keep deliberating and see if they can come to a verdict. 143 [At 12:04 p. m. the jury foreman returned to the deliberation room.] 144 Certified true and correct transcript. 145 /s/ MARION C. WIKE Marion C. Wike Official Reporter 146 [App. 1837-1840.] 147 Mr. Justice POWELL, concurring in part. 148 I join the judgment and Parts I, II, and V of the Court's opinion.1 I also join so much of Part III as holds that a seller's intention to establish a meeting-competition defense under § 2(b) of the Clayton Act, as amended by the Robinson-Patman Act, to a charge of price discrimination under § 2(a) is not in itself a "controlling circumstance" excusing liability under § 1 of the Sherman Act for otherwise unlawful direct price-verification practices. 149 I do not join those portions of Part III, however, that might be read as suggesting that there are cases where the § 2(b) defense is unavailable even though a seller made every reasonable, lawful effort to corroborate his buyer's report that a competitor had offered a lower price before reducing his own price to that buyer. See, e. g., ante, at 455-456, 459 n. 32.2 In my view, a proper accommodation between the policies of the Robinson-Patman Act and the Sherman Act would result in recognition of the § 2(b) defense in such cases. Otherwise, sellers sometimes would face the unenviable choice of reducing prices to one buyer and risking Robinson-Patman Act liability, refusing to do so and losing the sale, or reducing prices to all buyers. 150 A prudent businessman faced with this choice often would forgo the price reduction altogether. This reaction would disserve the procompetitive policy of the Sherman Act without advancing materially the antidiscrimination policy of the Robinson-Patman Act. The Court already has made clear that the Robinson-Patman Act "does not require the seller to justify price discriminations by showing that in fact they met a competitive price." FTC v. A. E. Staley Mfg. Co., 324 U.S. 746, 759, 65 S.Ct. 971, 977, 89 L.Ed. 1338 (1945). Today the Court confirms that "it is the concept of good faith which lies at the core of the meeting-competition defense, and good faith 'is a flexible and pragmatic, not technical or doctrinaire, concept.' " Ante, at 454, quoting Continental Baking Co., 63 F.T.C. 2071, 2163 (1963). A seller who has attempted to verify his buyer's report by every reasonable, lawful means before reducing his price to meet a competitor's price, in my view, has met the test of "good faith." In such a case, if the buyer's report proves to have been untruthful, it is the buyer alone, not the seller, who has acted in bad faith. 151 Mr. Justice REHNQUIST concurring in part and dissenting in part. 152 I concur in Part I and in the first portion of Part V of the Court's opinion approving the jury instruction on participation in the conspiracy. I dissent from the r maining portions of the opinion and set forth as briefly as possible my reasons for doing so. 153 Part II of the Court's opinion uses as its point of departure jury instructions on price fixing which the Court correctly characterizes as "not without ambiguity." Ante, at 434. However, these jury instructions are but a starting point for the discourse in Part II of the Court's opinion dealing with the element of intent in a criminal case, a discourse which I believe goes beyond any reasoning necessary to dispose of the contentions with respect to that point in this case. 154 I do not find it necessary to decide the intent which Congress required as a prerequisite for criminal liability under the Sherman Act, because I believe that the instructions given by the District Court, when considered as a whole and in connection with the objections made to them, are sufficiently close to respondents' tendered instructions so as to afford respondents no basis upon which to challenge the verdict. The jury instructions in this case take up some 40 pages of the record and are both detailed and complex. The judge instructed the jury as to both respondents' contention that they exchanged price information solely to comply with the Robinson-Patman Act, and the Government's contention that 155 "the Defendants' purpose was not merely to establish their good faith under the Robinson-Patman Act, but that they exchanged competitive information for the purpose of raising, fixing, maintaining, and stabilizing prices. 156 "It will be up to you, members of the jury, to resolve these issues. 157 "First, you must determine whether there was an agreement, either implied or express, to engage in the practice of price checking or verification. . . . 158 * * * * * 159 "Secondly, you must determine whether the purpose for the exchange of competitive information between the Defendants and their alleged co-conspirators was to insure a good faith meeting of competition, as a defense to the Robinson-Patman Act. 160 "If you decide that, if you decide that this was merely done in a good faith effort to comply with the Robinson-Patman Act, then you could not consider verification, standing alone, as establishing an agreement to fix, raise, maintain, and stabilize prices as charged. 161 "However, if you decide that the effect of these exchanges was to raise, fix, maintain, and stabilize the price of gypsum wallboard, then you may consider these [exchanges] as evidence of the mutual agreement or understanding alleged in the indictment to raise, fix, maintain, and stabilize list prices." App. 1720-1721 (emphasis added). 162 Read in conjunction with the above, the portions of the instructions quoted by the Court, ante, at 430, are not reversible error. The jury was instructed that it must find a purpose "to raise, fix, maintain, and stabilize list prices" and that this purpose could be presumed from the effect of respondents' agreement. Respondents' proposed instruction* does not significantly differ from that given by the District Court. I might add that in my view it would take plainly erroneous instructions, the error of which was both quite precisely and reasonably pointed out to the District Court, to warrant reversal of a judgment entered upon a jury's verdict following five months of trial. 163 The portions of Part II which I find most troubling are not those which expressly address the congressionally prescribed requirement of intent for criminal liability under the Sherman Act, but those which discourse at length upon the role of intent in the imposition of criminal liability in general, particularly those which might be taken to import any special constitutional difficulty if criminal liability is imposed without fault. While the Court emphasizes that its result is not constitutionally required, ante, at 437, the Court's broad policy statements may be misread by the lower courts. I also feel bound to say that while I am willing to respectfully defer to the views of the distinguished authors of the American Law Institute's Model Penal Code, and to the authors of law review articles and treatises such as those sprinkled throughout the text of Part II of the Court's opinion. I have serious reservations about the undiscriminating emphasis and weight which the Court appears to give them in this case. 164 For similar reasons, I do not believe that it is necessary in this case to address the interrelationship of the Robinson-Patman Act's meeting-competition defense and the Sherman Act, and I cheerfully refrain from that task. The jury was clearly instructed that if price information was exchanged "in a good faith effort to comply with the Robinson-Patman Act," this exchange by itself would not make out a violation of the Sherman Act. I believe that the communications between the judge and the jury foreman described in Part IV of the Court's opinion, having been consented to by all parties to the case, would not justify a reversal of the verdict of the jury. I agree with that portion of Part V of the Court's opinion which approves the charge given the jury concerning participation in the conspiracy, but disagree with that portion of Part V which seems to approve a more expansive instruction with respect to withdrawal from the conspiracy. In my opinion, neither of these instructions of the District Court was sufficient, either separately or together, to warrant reversal of the jury's verdict of guilty. 165 I therefore conclude that the judgment of the Court of Appeals should be reversed, and the judgment of the District Court based upon the jury's verdict should be reinstated. 166 Mr. Justice STEVENS, concurring in part and dissenting in part. 167 There are three reasons why I am unable to subscribe to the bifurcated construction of § 1 of the Sherman Act which the Court adopts in Part II of its opinion. 168 In 1955 I subscribed to the view that criminal enforcement of the Sherman Act is inappropriate unless the defendants have deliberately violated the law.1 I adhere to that view today. But since 1890 when the Sherman Act was enacted, the statute has had the same substantive reach in criminal and civil cases. No matter how wise the new rule that the Court adopts today may be, I believe it is an amendment only Congress may enact. 169 If I were fashioning a new test of criminal liability, I would require proof of a specific purpose to violate the law rather than mere knowledge that the defendants' agreement has had an adverse effect on the market.2 Under the lesser standard adopted by the Court, I believe Mr. Justice REHNQUIST is quite right in viewing the error in the trial judge's instructions as harmless. Ante, at 471-473. There is, of course, a theoretical possibility that defendants could engage in a practice of exchanging current price information that was sufficiently prevalent to have had a market-wide impact that they did not know about, but as a practical matter that possibility is surely remote. 170 Finally, I am afraid that the new civil-criminal dichotomy may work mischief in the civil enforcement of the prohibition against tampering with prices in a free market. Conclusive presumptions play a central role in the enforcement, both civil and criminal, of the Sherman Act. Thus, an agreement to charge the same price,3 or to adopt a common purchasing policy that determines the market price,4 is unreasonable, and therefore unlawful, without any proof of the purpose or the actual effect of the agreement. The law presumes that those who entered the price-fixing agreement knew that forbidden effects would follow, and it also presumes, conclusively, that those effects will follow. In a criminal prosecution for price fixing in violation of the Sherman Act it is, therefore, irrelevant whether the prices fixed were reasonable or whether the defendant's intentions were good.5 See United States v. iTrenton Potteries, Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700. As Mr. Justice Stone explained for the Court in that case, "the Sherman law is not only a prohibition against the infliction of a particular type of public injury. It 'is a limitation of rights, . . . which may be pushed to evil consequences and therefore restrained.'" Id., at 398, 47 S.Ct. at 380. (citation omitted). 171 To be sure, cases such as Trenton Potteries involved conduct that was determined to be illegal on its face, while in this case the trial court appraised respondents' agreement under "rule of reason" analysis.6 But properly understood, rule-of-reason analysis is not distinct from "per se" analysis. On the contrary, agreements that are illegal per se are merely a species within the broad category of agreements that unreasonably restrain trade; less proof is required to establish their illegality, but they nonetheless violate the basic rule of reason.7 172 As applied to an agreement among major producers to exchange current price information, the rule of reason requires an element in addition to proof of the agreement itself—either an actual market effect or an express purpose to affect market price—but once that element is shown, any additional showing of intent is unnecessary. See United States v. Container Corp., 393 U.S. 333, 89 S.Ct. 510, 21 L.Ed.2d 526. The rule is premised on the assumption that if the practice of exchanging current price information is sufficiently prevalent to af ect the market price then there is an extremely high probability that the sales representatives of these companies had actual knowledge of that fact. Given the language of § 1, that premise is as valid in the context of a criminal prosecution as it is in the context of a treble-damages civil action. 173 Accordingly, although I agree with much of the abstract discussion in Part II of the Court's opinion, I concur only in Parts I, III, IV, and V, and in the judgment. 1 The major producers operate numerous plants to serve a wide range of geographical markets. The single-plant producers are limited in terms of the markets they can serve because of the difficulties and expense involved in long-distance transportation of gypsum board. 2 The corporate defendants named in the indictment were: United States Gypsum Co., National Gypsum Co., Georgia Pacific Corp., Kaiser-Gypsum Co., Inc., Celotex Corp., and Flintkote Co. The individual defendants included: the Chairman of the Board and the Executive Vice-President of United States Gypsum, the Chairman of the Board and Vice-President for Sales of National Gypsum, the President of Georgia Pacific, the President and the Vice-President and General Manager of Kaiser-Gypsum, the President of Celotex, and the Chairman of the Board and the President of Flintkote. The Gypsum Association was named as an unindicted co-conspirator as were two other gypsum board producers—Johns-Manville Corp. and Fibreboard Corp. 3 The remaining corporate defendants were United States Gypsum, National Gypsum, Georgia Pacific, and Celotex, and the remaining individual defendants were the Chairman of the Board and the Vice-President of Sales of National Gypsum and the Executive Vice-President of United States Gypsum. 4 Defendants contended that the exchange of price information or verification was necessary to enable them to take advantage of the meeting-competition defense contained in § 2(b) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13(b) (1976 ed.); see Part III, infra. 5 Relevant portions of the charge dealing with this issue are excerpted in the opinion of the Court of Appeals. 550 F.2d 115, 127 n. 12 (1977); id., at 137-138 (Weis, J., dissenting). 6 See United States v. Fioravanti, 412 F.2d 407 (CA3), cert. denied sub nom. Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969). 7 The judge observed that the only instruction he might give the foreman was "to go back and continue his deliberations." App. 1823. 8 The complete colloquy between the foreman and the judge is reproduced as an appendix to this opinion. 9 "Significantly, the judge did not tell counsel about the foreman's opinion that the jury was hopelessly deadlocked; did not indicate that the foreman was under the impression that the court wanted a definite verdict either for the prosecution or the defendants; and did not mention the directive to the jury that it should 'see if [it] can come to a verdict.' " 550 F.2d, at 132 (Adams, J., concurring). 10 After the conclusion of the trial, the Court of Appeals ordered the transcript of the meeting between the judge and the foreman released to counsel to aid them in preparation of the appeal. 11 "Therefore, appellants were entitled to an instruction that their verification practice would not violate the Sherman Act if the jury found: (1) the appellants engaged in the practice solely to comply with the strictures of Robinson-Patman; (2) they had first resorted to all other reasonable means of corroboration, without success; (3) they had good, independent reason to doubt the buyers' truthfulness; and (4) their communication with competitors was strictly limited to the one price and one buyer at issue." Id., at 126. 12 See Part III, infra. 13 Our analysis focuses solely on the elements of a criminal offense under the antitrust laws, and leaves unchanged the general rule that a civil violation can be established by proof of either an unlawful purpose or an anticompetitive effect. See United States v. Container Corp., 393 U.S. 333, 337, 89 S.Ct. 510, 512, 21 L.Ed.2d 526 (1969); id., at 341, 89 S.Ct., at 514 (MARSHALL, J., dissenting). Of course, consideration of intent may play an important role in divining the actual nature and effect of the alleged anticompetitive conduct. See Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 243, 62 L.Ed. 683 (1918). 14 Senator Sherman adverted to the open texture of the statutory language in 1890 and accurately forecast its consequence a central role for the courts in giving shape and content to the Act's proscriptions. "I admit that it is difficult to define in legal language the precise line between lawful and unlawful combinations. This must be left for the courts to determine in each particular case. All that we, as lawmakers, can do is to declare general principles, and we can be assured that the courts will apply them so as to carry out the meaning of the law . . .." 21 Cong.Rec. 2460 (1890). 15 In 1967, the Antitrust Division refined its guidelines to emphasize that criminal prosecutions should only be brought against willful violations of the law. See The President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Crime and Its Impact—An Assessment 110 (1967). 16 The exchange of price data and other information among competitors does not invariably have anticompetitive effects; indeed such practices can in certain circumstances increase economic efficiency and render markets more, rather than less, competitive. For this reason, we have held that such exchanges of information do not constitute a per se violation of the Sherman Act. See, e. g., United States v. Citizens & Southern Nat. Bank, 422 U.S. 86, 113, 95 S.Ct. 2099, 2115; 45 L.Ed.2d 41 (1975); United States v. Container Corp., 393 U.S., at 338, 89 S.Ct., at 513 (Fortas, J., concurring). A number of factors including most prominently the structure of the industry involved and the nature of the information exchanged are generally considered in divining the procompetitive or anticompetitive effects of this type of interseller communication. See United States v. Container Corp., supra. See generally L. Sullivan, Law of Antitrust 265-274 (1977). Exchanges of current price information, of course, have the greatest potential for generating anticompetitive effects and although not per se unlawful have consistently been held to violate the Sherman Act. See American Column & Lumber Co. v. United States, 257 U.S. 377, 42 S.Ct. 114, 66 L.Ed. 284 (1921); United States v. American Linseed Oil Co., 262 U.S. 371, 43 S.Ct. 607, 67 L.Ed. 1035 (1923); United States v. Container Corp., supra. 17 The possibility that those subjected to strict liability will take extraordinary care in their dealings is frequently regarded as one advantage of a rule of strict liability. See J. Hall, General Principles of Criminal Law 344 (2d ed. 1960); W. LaFave & A. Scott, Criminal Law 222-223 (1972). However, where the conduct prescribed is difficult to distinguish from conduct permitted and indeed encouraged, as in the antitrust context, the excessive caution spawned by a regime of strict liability will not necessarily redound to the public's benefit. The antitrust laws differ in this regard from, for example, laws designed to insure that adulterated food will not be sold to consumers. In the latter situation, excessive caution on the part of producers is entirely consistent with the legislative purpose. See United States v. Park, 421 U.S. 658, 6 1-672, 95 S.Ct. 1903, 1911, 44 L.Ed.2d 489 (1975). 18 Congress has recently increased the criminal penalties for violation of the Sherman Act. Individual violations are now treated as felonies punishable by a fine not to exceed $100,000, or by imprisonment for up to three years, or both. Corporate violators are subject to a $1 million fine. 15 U.S.C. § 1 (1976 ed.). The severity of these sanctions provides further support for our conclusion that the Sherman Act should not be construed as creating strict-liability crimes. Cf. Morissette v. United States, 342 U.S. 246, 256, 72 S.Ct. 240, 246, 96 L.Ed. 288 (1952); Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55, 72 (1933) (strict liability generally inappropriate when offense punishable by imprisonment). Respondents here were not prosecuted under the new penalty provisions since they were indicted prior to the December 21, 1974, effective date for the increased sanctions. 19 An accommodation of the civil and criminal provisions of the Act similar to that which we approve here was suggested by Senator Sherman in response to Senator George's argument during floor debate that the Act was primarily a penal statute to be construed narrowly in accord with traditional maxims: "The first section, being a remedial statute, would be construed liberally with a view to promote its object. It defines a civil remedy, and the courts will construe it liberally . . .. "In providing a remedy the intention of the combination is immaterial. . . . "The third section is a criminal statute, which would be construed strictly and is difficult to be enforced. In the present state of the law it is impossible to describe, in precise language, the nature and limits of the offense in terms specific enough for an indictment." 21 Cong.Rec. 2456 (1890). Although the bill being debated by Senators George and Sherman differed in form from the Act as ultimately passed, the colloquy between them indicates that Congress was fully aware of the traditional distinctions between the elements of civil and criminal offenses and apparently did not intend to do away with them in the Act. 20 In a conspiracy, two different types of intent are generally required—the basic intent to agree, which is necessary to establish the existence of the conspiracy, and the more traditional intent to effectuate the object of the conspiracy. See W. LaFave & A. Scott, Criminal Law 464-465 (1972). Our discussion here focuses only on the second type of intent. 21 In so holding, we do not mean to suggest that conduct undertaken with the purpose of producing anticompetitive effects would not also support criminal liability, even if such effects did not come to pass. Cf. United States v. Griffith, 334 U.S. 100, 105, 68 S.Ct. 941, 944, 92 L.Ed. 1236 (1948). We hold only that this elevated standard of intent need not be established in cases where anticompetitive effects have been demonstrated; instead, proof that the defendant's conduct was undertaken with knowledge of its probable consequences will satisfy the Government's burden. 22 Respondents contend that "prior to the trial of this case, no court had ever held that a mere exchange of information which had a stabilizing effect on prices violated the Sherman Act, regardless of the purpose for the exchange." Joint Brief for Respondents 50. Retroactive application of "this judicially expanded definition of the crime" would, the argument continues, contravene the "principles of fair notice embodied in the Due Process Clause." Ibid. While we have rejected on other grounds the "effects only" test in the context of criminal proceedings, we do not agree with respondents that the prior case law dealing with the exchange of price information required proof of a purpose to restrain competition in order to make out a Sherman Act violation. Certainly our decision in United States v. Container Corp., 393 U.S. 333, 89 S.Ct. 510, 21 L.Ed.2d 526 (1969), is fairly read as indicating that proof of an anticompetitive effect is a sufficient predicate for liability. In that case, liability followed from proof that "the exchange of price information has had an anticompetitive effect in the industry," id., at 337, 89 S.Ct., at 512, and no suggestion was made that proof of a purpose to restrain trade or competition was also required. Thus, at least in the post-Container period, which comprises almost the entire time period at issue here, respondents' claimed lack of notice cannot be credited. Nor are the prior cases treating exchanges of information among competitors more favorable to respondents' position. See American Column & Lumber Co. v. United States, 257 U.S., at 400, 42 S.Ct., at 117 ("[A]ny concerted action . . . to cause, or which in fact does cause, . . . restraint of competition . . . is unlawful"); United States v. American Linseed Oil Co., 262 U.S. 371, 389, 43 S.Ct. 607, 611, 67 L.Ed. 1035 (1923) ("[A] necessary tendency . . . to suppress competition . . . [is] unlawful"); Maple Flooring Mfrs. Assn. v. United States, 268 U.S. 563, 585, 45 S.Ct. 578, 585, 69 L.Ed. 1093 (1925) (purpose to restrain trade or conduct which "had resulted, or would necessarily result, in tending arbitrarily to lessen production or increase prices" sufficient for liability). While in Cement Mfrs. Protective Assn. v. United States, 268 U.S. 588, 45 S.Ct. 586, 69 L.Ed. 1104 (1925), an exception from Sherman Act liability was recognized for conduct intended to prevent fraud, we do not read that case as repudiating the rule set out in prior cases; instead Cement highlighted a narrow limitation on the application of the general rule that either purpose or effect will support liability. We do not understand respondents to be making the related claim that they relied on the several lower court cases exempting interseller verification for purposes of complying with the Robinson-Patman Act from scrutiny under the Sherman Act, see infra, at 452-453, and thus should not be penalized if those decisions turn out to have been incorrect. Whatever the merits of such an argument, respondents would appear unable to invoke it since the initiation of their verification practices antedated those lower court decisions. 23 This question was not resolved by the prior discussion because a purpose of complying with the Robinson-Patman Act by exchanging price information is not inconsistent with knowledge that such exchanges of information will have the probable effect of fixing or stabilizing prices. Since we hold knowledge of the probable consequences of conduct to be the requisite mental state in a criminal prosecution like the instant one where an effect on prices is also alleged, a defendant's purpose in engaging in the proscribed conduct will not insulate him from liability unless it is deemed of sufficient merit to justify a general exception to the Sherman Act's proscriptions. Cf. Cement Mfrs. Protective Assn. v. United States, supra. 24 Respondents maintain that their verification practices not only were for the purpose of complying with the Robinson-Patman Act, but also served to protect them from fraud on the part of their customers, and thus fall squarely within the Cement exception. The Court of Appeals rejected this claim, 550 F.2d, at 123 n. 9, and we find no reason to upset this determination. 25 Although the Belliston court did not specifically refer to Cement's "controlling circumstance" exception, it adopted the rationale of the Wall Products case where that exception was explicitly relied upon to immunize verification from the proscriptions of the Sherman Act. 26 See n. 11, supra. 27 The decision in Di-Wall is ambiguous on the question of whether alternatives short of verification were exhausted prior to the exchange of price information. 1970 Trade Cases, ¶ 73,155, p. 88,557. 28 In Viviano Macaroni Co. v. FTC, 411 F.2d 255 (CA3 1969), the § 2(b) defense was not recognized because the seller had relied solely on the report of its customer regarding other competitive offers without undertaking any investigation to corroborate the offer or the reliability of the customer. The Court of Appeals in the instant case read Viviano as at least suggesting, if not requiring, interseller verification when the veracity of the buyer was in doubt. As we read that case, however, it simply reaffirms the teaching of Staley, and does not compel the further conclusion that only interseller verification will satisfy the good-faith requirement, even in the particular circumstances identified by the Court of Appeals. See 550 F.2d, at 135 (Weis, J., dissenting). 29 "Although a seller may take advantage of the meeting competition defense only if it has a commercially reasonable belief that its price concession is necessary to meet an equally low price of a competitor, a seller may acquire this belief, and hence perfect its defense, by doing everything reasonably feasible short of violating some other statute, such as the Sherman Act—to determine the veracity of a customer's statement that he has been offered a lower price. If, after making reasonable, lawful, inquiries, the seller cannot ascertain that the buyer is ly ng, the seller is entitled to make the sale. . . . There is no need for a seller to discuss price with his competitors to take advantage of the meeting competition defense." (Citations omitted.) Brief for United States 86-87, and n. 78. See also App. to Pet. for Cert. 97a-99a. 30 It may also turn out that sustained enforcement of § 2(f) of the Clayton Act, as amended by the Robinson-Patman Act, which imposes liability on buyers for inducing illegal price discounts, will serve to bolster the credibility of buyers' representations and render reliance thereon by sellers a more reasonable and secure predicate for a finding of good faith under § 2(b). See generally Note, Meeting Competition Under the Robinson-Patman Act, 90 Harv.L.Rev. 1476, 1495-1496 (1977). In both Great Atlantic & Pacific Tea Co. v. FTC, 557 F.2d 971 (CA2 1977), and Kroger v. FTC, 438 F.2d 1372 (CA6 1971), buyers have been held liable under § 2(f) despite the fact that the sellers were either found not to have violated the Robinson-Patman Act (Kroger ) or were not charged with such a violation (A&P ). Certiorari has been granted in Great Atlantic & Pacific Tea Co. to consider the permissibility of enforcing the Robinson-Patman Act in this manner. 435 U.S. 922, 98 S.Ct. 1483, 55 L.Ed.2d 515 (1978). 31 We need not and do not decide that in all such circumstances the defense would be unavailable. The case-by-case interpretation and elaboration the § 2(b) defense is properly left to the other federal courts and the FTC in the context of concrete fact situations. We note also that our conclusions regarding the proper interpretation of § 2(f), see n. 30, supra, may well affect subsequent application of the § 2(b) defense. 32 That the § 2(b) defense may not be available in every situation where a competing offer has in fact been made is not, in our view, a meaningful objection to our holding. The good-faith requirement of the § 2(b) defense implicitly suggests a somewhat imperfect matching between competing offers actually made and those allowed to be met. Unless this requirement is to be abandoned, it seems clear that inadequate information will, in a limited number of cases, deny the defense to some who, if all the facts had been known, would have been entitled to invoke it. For reasons already discussed, interseller verification does not provide a satisfactory solution to this seemingly inevitable problem of inadequate information. Moreover, § 2(b) affords only a defense to liability and not an affirmative right under the Act. While sellers are, of course, entitled to take advantage of the defense when they can satisfy its requirements, efforts to increase its availability at the expense of broader, affirmative antitrust policies must be rejected. 33 Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). An injunction to the jury "to deliberate with a view toward reaching an agreement if you can, without violence, to individual judgment," was also included in the judge's original instruction prior to the commencement of deliberations. 34 See n. 9, supra. 35 See n. 5, supra. 36 The requested charge was as follows: "Because the gist of the offense charged is a continuing agreement to raise, fix, maintain and stabilize prices of gypsum products, it is essential for you to determine what kind of agreement or understanding, if any, existed as to each defendant. Each defendant is chargeable with the acts of his or its fellow defendants and alleged co-conspirators only if the acts are done in furtherance of the joint venture as he or it understood it. No defendant is to be held responsible for what some of the alleged conspirators, unknown to the rest, do beyond the reasonable intendment of the common agreement or understanding, if any, to which you may find him or it a party." 550 F.2d, at 128-29, n. 13 (emphasis omitted). 37 In this case the obligation to notify "each other member" of the charged conspiracy would be a manageable task; in other situations all "other" members might not be readily identifiable. 38 The instruction on withdrawal and proper evidence thereof may have been of particular importance here because respondents vigorously argued throughout the trial that competition within the industry resumed before December 27, 1968, the critical date for purposes of the applicable five-year statute of limitations. 1 Because the issue discussed in Part IV of the Court's opinion is unlikely to arise at any retrial, I find it unnecessary to express a view as to it. 2 I do not understand the Court to take a firm position on this issue. See ante, at 456 n. 31. * "There has been evidence in this case of a defendant's contacting a competitor to verify the existence or nonexistence of a reported lower price or other competitive condition in the market place. This practice has been referred to as 'verification.' There is evidence that verification was engaged in by defendants for the purpose of compliance with the Robinson-Patman Act, one of the federal antitrust laws. I charge you as a matter of law that no finding of guilt may be made in this case based on verification engaged in for the purpose of compliance with the Robinson-Patman Act. Further, to consider verification as a y evidence whatsoever of an alleged price-fixing conspiracy you must first determine beyond a reasonable doubt that the purpose of verification was not compliance with the Robinson-Patman Act." App. 1857. 1 Report of the Attorney General's National Committee to Study the Antitrust Laws 349-351 (1955). 2 The distinctio between the two standards is explained ante, at 444-445. The Report of the Attorney General's Committee recommended that "criminal process should be used only where the law is clear and the facts reveal a flagrant offense and plain intent unreasonably to restrain trade." Report, supra n. 1, at 349. 3 United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700. 4 United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129. 5 In fact, early in the development of criminal enforcement of the Sherman Act, this Court stated: "[T]he conspirators must be held to have intended the necessary and direct consequences of their acts and cannot be heard to say the contrary. In other words, by purposely engaging in a conspiracy which necessarily and directly produces the result which the statute is designed to prevent, they are, in legal contemplation, chargeable with intending that result." United States v. Patten, 226 U.S. 525, 543, 33 S.Ct. 141, 145, 57 L.Ed. 333. 6 An argument can be made that an agreement among the major producers in the market to exchange current price information should be considered illegal on its face. As the Court points out, "[e]xchanges of current price information . . . have the greatest potential for generating anticompetitive effects and . . . have consistently been held to violate the Sherman Act." Ante, at 441 n. 16. 7 Rahl, Price Competition and the Price Fixing Rule—Preface and Perspective, 57 Nw.L.Rev. 137, 139 (1962).

78

57 L.Ed.2d 932 98 S.Ct. 2923 438 U.S. 531 ST. PAUL FIRE & MARINE INSURANCE COMPANY et al., Petitioners,v.David M. BARRY et al. No. 77-240. Argued March 27, 1978. Decided June 29, 1978. Syllabus Respondents, licensed physicians practicing in Rhode Island and their patients, brought a class action against petitioners, four insurance companies writing medical malpractice insurance in the State, alleging a conspiracy in violation of the Sherman Act in which three of the four companies refused to deal on any terms with the policyholders of the fourth as a means of compelling them to submit to new ground rules set by the fourth, whereby coverage on an "occurrence" basis would not be renewed and coverage would issue only on a "claims made" basis. Petitioners' motion to dismiss the antitrust claim on the ground that it was barred by the McCarran-Ferguson Act was granted by the District Court. The Court of Appeals reversed, holding that the complaint stated a claim within the "boycott" exception in § 3(b) of that Act, which provides that the Sherman Act shall remain applicable "to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation." Held : 1. The antitrust claim is not mooted by the fact that after the complaint was filed Rhode Island formed a Joint Underwriters Association to provide medical malpractice insurance and to require all personal-injury liability insurers in the State to pool expenses and losses in providing such insurance. Since Rhode Island now permits the writing of such insurance outside of the Association, it cannot be said that "subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur," United States v. Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344. Pp. 537-538. 2. The "boycott" exception of § 3(b) applies to certain types of disputes between policyholders and insurers and is not limited to concerted activity directed against competitor insurers or agents or, more generally, against competitors of members of the boycotting group. Pp. 538-551. (a) The language of § 3(b) is broad and unqualified, covering "any" act or agreement amounting to a "boycott, coercion, or intimidation." Had Congress intended to limit its scope to boycotts of competitor insurer companies or agents, and to preclude all Sherman Act protection for policyholders, it presumably would have made this explicit. The customary understanding of "boycott" at the time of enactment, as elaborated in th Sherman Act decisions of this Court, does not support a definition of the term that embraces only those combinations that target competitors of the boycotters as the ultimate objects of a concerted refusal to deal. Pp. 541-546. (b) The legislative history, while not unambiguous, provides no substantial evidence that Congress sought to attach a special meaning to the language of § 3(b) that would exclude policyholders from all Sherman Act protection from restrictive agreements and practices by insurers falling outside of the realm of state-supervised cooperative action. Congress intended to preserve Sherman Act review of certain forms of regulation by private combinations and groups, including but not limited to the eradication of "blacklisting" and other exclusionary devices directed at independent insurance companies or agents. Pp. 546-550. (c) Nor does the structure of the McCarran-Ferguson Act support the proposed limitation on the reach of § 3(b). Section 3(b) is an exception to § 2(b), which limits the general applicability of the federal antitrust laws "to the business of insurance to the extent that such business is not regulated by State law." Congress intended in the "boycott" clause of § 3(b) to carve out of the overall framework of plenary state regulation an area that would remain subject to Sherman Act scrutiny. Pp. 550-551. 3. The type of private conduct alleged to have taken place here, directed against policyholders, constitutes a "boycott" within the meaning of § 3(b). Pp. 552-555. (a) Such conduct accords with the common understanding of a boycott. The agreement binding petitioners erected a barrier between respondents and any alternative source of the desired coverage, effectively foreclosing all possibility of competition anywhere in the relevant market. Pp. 552-553. (b) The conduct with which petitioners are charged appears to have occurred outside of any regulatory or cooperative arrangement established by the laws of Rhode Island. This is not a case where a State has decided that regulatory policy requires that certain risks be allocated in a particular fashion among insurers or has authorized insurers to decline to insure particular risks. Here a group of insurers decided to resolve by private action the problem of escalating damages claims and verdicts by coercing policyholders of one of the insurers to accept a severe limitation of coverage. Pp. 553-555. 555 F.2d 3, affirmed. Sidney S. Rosdeitcher, New York City, for petitioners. Leonard Decof, Providence, R. I., for respondents. Daniel M. Friedman, Washington, D. C., for the United States, as amicus curiae, by special leave of Court. Mr. Justice POWELL delivered the opinion of the Court. 1 Respondents, licensed physicians practicing in the State of Rhode Island and their patients, brought a class action, in part under the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1 et seq. (1976 ed.), against petitioners, the four insurance companies writing medical malpractice insurance in the State. The complaint alleged a private conspiracy of the four companies in which three refused to sell respondents insurance of any type as a means of compelling their submission to new ground rules of coverage set by the fourth. Petitioner insurers successfully moved in District Court to dismiss the antitrust claim on the ground that it was barred by the McCarran-Ferguson Act, § 1 (Act), 59 Stat. 33, as amended, 15 U.S.C. §§ 1011-1015 (1976 ed.).1 The Court of Appeals reversed, holding that respondents' complaint stated a claim within the "boycott" exception in § 3(b) of the Act, which provides that the Sherman Act shall remain applicable "to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation," 15 U.S.C. § 1013(b) (1976 ed.). 555 F.2d 3 (CA1 1977). We are required to decide whether the "boycott" exception applies to disputes between policyholders and insurers. 2 * As this case comes to us from the reversal of a successful motion to dismiss, we treat the factual allegations of respondents' amended complaint as true.2 During the period in question, petitioners St. Paul Fire & Marine Insurance Co. (St. Paul), Aetna Casualty & Surety Co., Travelers Indemnity of Rhode Island (and two affiliated companies), and Hartford Casualty Co. (and an affiliated company) were the only sellers of medical malpractice insurance in Rhode Island. In April 1975, St. Paul, the largest of the insurers, announced that it would not renew medical malpractice coverage on an "occurrence" basis, but would write insurance only on a "claims made" basis.3 Following St. Paul's announcement, and in furtherance of the alleged conspiracy, the other petitioners refused to accept applications for any type of insurance from physicians, hospitals, or other medical personnel whom St. Paul then insured. The object of the conspiracy was to restrict St. Paul's policyholders to "claims made" coverage by compelling them to "purchase medical malpractice insurance from one insurer only, to wit defendant, St. Paul, and that [such] purchase must be made on terms dictated by the defendant, St. Paul." App. 25. It is alleged that this scheme was effectuated by a collective refusal to deal, by unfair rate discrimination, by agreements not to compete, and by horizontal price fixing, and that petitioners engaged in "a purposeful course of coercion, intimidation, boycott and unfair competition with respect to the sale of medical malpractice insurance in the State of Rhode Island." Id., at 24-27.4 3 On November 19, 1975, the District Court for the District of Rhode Island granted petitioners' motion to dismiss. The District Court declined to give the "boycott" exception the reading suggested by its "broad wording," declaring instead that "the purpose of the boycott, coercion, and intimidation exception was solely to protect insurance agents or other insurance companies from being 'black-listed' by powerful combinations of insurance companies, not to affect the insurer-insured relationship." Id., at 44. 4 On May 16, 1977, a divided panel of the Court of Appeals for the First Circuit reversed in pertinent part. The majority reasoned that the "boycott" exception was broadly framed, and that there was no reason to decline to give the term "boycott" its "normal Sherman Act scope." 555 F.2d, at 8. "In antitrust law, a boycott is a 'concerted refusal to deal' with a disfavored purchaser or seller." Id., at 7. The court thought that this reading would not undermine state regulation of the industry. "Regulation by the state would be protected; concerted boycotts against groups of consumers not resting on state authority would have no immunity." Id., at 9. 5 On August 12, 1977, petitioners sought a writ of certiorari in this Court. To resolve the conflicting interpretations of § 3(b) adopted by several Courts of Appeals,5 we granted the writ on October 31, 1977. 434 U.S. 919, 98 S.Ct. 391, 54 L.Ed.2d 275. We now affirm. II 6 At the threshold, we confront a question of mootness. Although not raised by the parties, this issue implicates our jurisdiction. See, e. g., Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 7-8, 98 S.Ct. 1554, 1559, 56 L.Ed.2d 30 (1978); Sosna v. Iowa, 419 U.S. 393, 398, 95 S.Ct. 553, 556, 42 L.Ed.2d 532 (1975). 7 The Court of Appeals requested the parties to brief the question whether the antitrust claim was mooted by Rhode Island's formation, after the initial complaint was filed, of a Joint Underwriting Association (JUA) to provide malpractice insurance to all licensed providers of health-care services and to require the participation of all personal-injury liability insurers in the State in a scheme to pool expenses and losses in providing such insurance.6 The court noted that while the State's action prevented St. Paul from "gather[ing] the fruits of the alleged conspiracy," it was "convinced that, for purposes of [its] jurisdiction, the state's act did not extinguish plaintiffs' every claim for relief." 555 F.2d, at 5-6, n. 2. We agree. 8 Although later developments may have "reduce[d] the practical importance of this case" for the parties, it cannot be said that "subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968); see United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). Since Rhode Island now permits the writing of medical malpractice insurance outside of the JUA, see n. 6, supra, we cannot assume that petitioners will not re-enter the market in some fashion. The conditions that gave rise to the controversy have not been shown to have abated. And the possibility of a resurgence of the alleged conspiracy is further evidenced by petitioners' acknowledgment in the Court of Appeals "that the alleged antitrust violations could recur in the future." 2 Record 83.7 III 9 The McCarran-Ferguson Act was passed in reaction to this Court's decision in United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944). Prior to that decision, it had been assumed, in light of Paul v. Virginia, 75 U.S. 168, 8 Wall. 168, 183, 19 L.Ed. 357 (1869), that the issuance of an insurance policy was not a transaction in interstate commerce and that the States enjoyed a virtually exclusive domain over the insurance industry. South-Eastern Underwriters held that a fire insurance company which conducted a substantial part of its transactions across state lines is engaged in interstate commerce, and that Congress did not intend to exempt the business of insurance from the operation of the Sherman Act.8 The decision provoked widespread concern that the States would no longer be able to engage in taxation and effective regulation of the insurance industry. Congress moved quickly, enacting the McCarran-Ferguson Act within a year of the decision in South-Eastern Underwriters. 10 As this Court observed shortly afterward, "[o]bviously Congress' purpose was broadly to give support to the existing and future state systems for regulating and taxing the business of insurance." Prudential Insurance Co. v. Benjamin, 328 U.S. 408, 429, 66 S.Ct. 1142, 1155, 90 L.Ed. 1342 (1946). Our decisions have given effect to this purpose in construing the operative terms of the § 2(b) proviso, which is the critical provision limiting the general applicability of the federal antitrust laws "to the business of insurance to the extent that such business is not regulated by State Law." See SEC v. National Securities, Inc., 393 U.S. 453, 460, 89 S.Ct. 564, 568, 21 L.Ed.2d 668 (1969); FTC v. National Casualty Co., 357 U.S. 560, 78 S.Ct. 1260, 2 L.Ed.2d 1540 (1958); infra, at 2935. Section 2(b) is not in issue in this case.9 Rather, we are called upon to interpret, for the first time, the scope of § 3(b), the principal exception to this scheme of pre-emptive state regulation of the "business of insurance." 11 The Court of Appeals in this case determined that the word "boycott" in § 3(b) should be given its ordinary Sherman Act meaning as "a concerted refusal to deal." The "boycott" exception, so read, covered the alleged conspiracy of petitioners, conducted "outside any state-permitted structure or procedure, [to] agree among themselves that customers dissatisfied with the coverage offered by one company shall not be sold any policies by any of the other companies." 555 F.2d, at 9. 12 Petitioners take strong exception to this reading, arguing that the "boycott" exception "should be limited to cases where concerted refusals to deal are used to exclude or penalize insurance companies or other traders which refuse to conform their competitive practices to terms dictated by the conspiracy." Brief for Petitioners 13. This definition is said to accord with the plain meaning and judicial interpretations of the term "boycott," with the evidence of specific legislative intent, and with the overall structure of the Act. Respondents counter that the language of § 3(b) is sweeping, and that there is no warrant for the view that the exception protects insurance companies "or other traders" from anticompetitive practices, but withholds similar protection from policyholders victimized by private, predatory agreements. They urge that this case involves a "traditional boycott," defined as a concerted refusal to deal on any terms, as opposed to a refusal to deal except on specified terms. Brief for Respondents 43. 13 We consider first petitioners' definition of "boycott" in view of the language, legislative history, and structur of the Act.10 IV A. 14 The starting point in any case involving construction of a statute is the language itself. See Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (POWELL, J., concurring). With economy of expression, Congress provided in § 3(b) for the continued applicability of the Sherman Act to "any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation." Congress thus employed terminology that evokes a tradition of meaning, as elaborated in the body of decisions interpreting the Sherman Act. It may be assumed, in the absence of indications to the contrary, that Congress intended this language to be read in light of that tradition. 15 The generic concept of boycott refers to a method of pressuring a party with whom one has a dispute by withholding, or enlisting others to withhold, patronage or services from the target.11 The word gained currency in this country largely as a term of opprobrium to describe certain tactics employed by parties to labor disputes. See, e. g., State v. Glidden, 55 Conn. 46, 8 A. 890 (1887); Laidler, Boycott, in 2 Encyclopaedia of the Social Sciences 662-666 (1930). Thus it is not surprising that the term first entered the lexicon of antitrust law in decisions involving attempts by labor unions to encourage third parties to cease or suspend doing business with employers unwilling to permit unionization.12 See, e. g., Loewe v. Lawlor, 208 U.S. 274, 28 S.Ct. 301, 52 L.Ed. 488 (1908); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Lawlor v. Loewe, 235 U.S. 522, 35 S.Ct. 170, 59 L.Ed. 341 (1915); Duplex Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349 (1921); Bedford Stone Co. v. Stone Cutters' Assn., 274 U.S. 37, 47 S.Ct. 522, 71 L.Ed. 916 (1927).13 16 Petitioners define "boycott" as embracing only those combinations which target competitors of the boycotters as the ultimate objects of a concerted refusal to deal. They cite commentary that attempts to develop a test for distinguishing the types of restraints that warrant per se invalidation from other concerted refusals to deal that are not inherently destructive of competition.14 But the issue before us is whether the conduct in question involves a boycott, not whether it is per se unreasonable. In this regard, we have not been referred to any decision of this Court holding that petitioners' test states the necessary elements of a boycott within the purview of the Sherman Act. Indeed, the decisions reflect a marked lack of uniformity in defining the term. 17 Petitioners refer to cases stating that "group boycotts" are "concerted refusals by traders to deal with other traders," Klor's v. Broadway-Hale Stores, 359 U.S. 207, 212, 79 S.Ct. 705, 709, 3 L.Ed.2d 741 (1959), or are combinations of businessmen "to deprive others of access to merchandise which the latter wish to sell to the public," United States v. General Motors Corp., 384 U.S. 127, 146, 86 S.Ct. 1321, 1331, 16 L.Ed.2d 415 (1966). We note that neither standard in terms excludes respondents—for whom medical malpractice insurance is necessary to ply their "trade" of providing health-care services, see n. 4, supra —from the class of cognizable victims. But other verbal formulas also have been used. In FMC v. Svenska Amerika Linien, 390 U.S. 238, 250, 88 S.Ct. 1005, 1012, 19 L.Ed.2d 1071 (1968), for example, the Court noted that "[u]nder the Sherman Act, any agreement by a group of competitors to boycott a particular buyer or group of buyers is illegal per se." The Court also has stated broadly that "group boycotts, or concerted refusals to deal, clearly run afoul of § 1 [of the Sherman Act]." Times-Picayune v. United States, 345 U.S. 594, 625, 73 S.Ct. 872, 889, 97 L.Ed. 1277 (1953). Hence, "boycotts are not a unitary phenomenon." P. Areeda, Antitrust Analysis 381 (2d ed. 1974). 18 As the labor-boycott cases illustrate, the boycotters and the ultimate target need not be in a competitive relationship with each other. This Court also has held unlawful, concerted refusals to deal in cases where the target is a customer of some or all of the conspirators who is being denied access to desired goods or services because of a refusal to accede to particular terms set by some or all of the sellers. See, e. g., Paramount Famous Corp. v. United States, 282 U.S. 30, 51 S.Ct. 42, 75 L.Ed. 145 (1930); United States v. First Nat. Pictures, Inc., 282 U.S. 44, 51 S.Ct. 45, 75 L.Ed. 151 (1930); Binderup v. Pathe Exchange, 263 U.S. 291, 44 S.Ct. 96, 68 L.Ed. 308 (1923). See also Anderson v. Shipowners Assn., 272 U.S. 359, 47 S.Ct. 125, 71 L.Ed. 298 (1926). As the Court put it in Kiefer-Stewart Co. v. Seagram & Sons, 340 U.S. 211, 214, 71 S.Ct. 259, 261, 95 L.Ed. 219 (1951), "the Sherman Act makes it an offense for [businessmen] to agree among themselves to stop selling to particular customers."15 19 Whatever other characterizations are possible,16 petitioners' conduct fairly may be viewed as "an organized boycott," Fashion Guild v. FTC, 312 U.S. 457, 465, 61 S.Ct. 703, 706, 85 L.Ed. 949 (1941), of St. Paul's policyholders. Solely for the purpose of forcing physicians and hospitals to accede to a substantial curtailment of the coverage previously available, St. Paul induced its competitors to refuse to deal on any terms with its customers. This agreement did not simply fix rates or terms of coverage; it effectively barred St. Paul's policyholders from all access to alternative sources of coverage and even from negotiating for more favorable terms elsewhere in the market. The pact served as a tactical weapon invoked by St. Paul in support of a dispute with its policyholders. The enlistment of third parties in an agreement not to trade, as a means of compelling capitulation by the boycotted group, long has been viewed as conduct supporting a finding of unlawful boycott. Eastern States Lumber Assn. v. United States, 234 U.S. 600, 612-613, 34 S.Ct. 951, 954, 58 L.Ed. 1490 (1914), citing Lawlor v. Loewe, supra; see Klor's v. Broadway-Hale Stores, supra, 359 U.S., at 213, 79 S.Ct., at 710; Anderson v. Shipowners Assn., supra, 272 U.S., at 362-363, 364-365, 47 S.Ct., at 126-127. As in Binderup v. Pathe Exchange, supra, 263 U.S., at 312, 44 S.Ct., at 100, where film distributors had conspired to cease dealing with an exhibitor because he had declined to purchase films from some of the distributors, "[t]he illegality consists, not in the separate action of each, but in the conspiracy and combination of all to prevent any of them from dealing with the [target]."17 20 Thus if the statutory language is read in light of the customary understanding of "boycott" at the time of enactment, respondents' complaint states a claim under § 3(b).18 But, as Mr. Justice Cardozo observed, words or phrases in a statute come "freighted with the meaning imparted to them by the mischief to be remedied and by contemporaneous discussion. In such conditions history is a teacher that is not to be ignored." Duparquet Co. v. Evans, 297 U.S. 216, 221, 56 S.Ct. 412, 414, 80 L.Ed. 591 (1936) (citation omitted). We therefore must consider whether Congress intended to attach a special meaning to the word "boycott" in § 3(b). B 21 In the Court of Appeals, petitioners argued that only insurance companies and agents could be victims of practices within the reach of the "boycott" exception.19 That position enjoys some support in the legislative history because the principal targets of the practices termed "boycotts" and "other types of coercion and intimidation" in South-Eastern Underwriters were insurance companies that did not belong to the industry association charged with the conspiracy, as well as agents and customers who dealt with those nonmembers. See 322 U.S., at 535-536, 64 S.Ct., at 1164. Moreover, there are references in the debates to the need for preventing insurance companies and agents from "blacklisting" and imposing other sanctions against uncooperative competitors or agents. See 91 Cong.Rec. 1087 (1945) (remarks of Rep. Celler); id., at 1485-1486 (remarks of Sen. O'Mahoney). In this Court, however, petitioners expanded the list of potential targets of § 3(b) conduct to include any victim—even one outside the insurance industry—who is in a competitive relationship with any of the members of the boycotting group. Tr. of Oral Arg. 22, 57-58. 22 The principal exception in the McCarran-Ferguson bill to the pre-emptive role of state regulation was for acts or agreements amounting to a "boycott, coercion, or intimidation" violative of the Sherman Act. Both Committee Reports stated: "[A]t no time are the prohibitions in the Sherman Act against any [agreement or] act of boycott, coercion, or intimidation suspended. These provisions of the Sherman Act remain in full force and effect." S.Rep.No.20, 79th Cong., 1st Sess., 3 (1945); H.R.Rep.No.143, 79th Cong., 1st Sess., 3 (1945), U.S.Code Cong.Serv.1945, pp. 670, 672. The debates make clear that the "boycott" exception was viewed by the Act's proponents as an important safeguard against the danger that insurance companies might take advantage of purely permissive state legislation to establish monopolies and enter into restrictive agreements falling outside the realm of state-supervised cooperative action. 23 The bill ultimately enacted emerged from Conference Committee as a compromise between conflicting Senate and House proposals.20 Although the conference substitute quickly gained approval in the House, it encountered opposition in the Senate. Senator Pepper spoke at length against privileging the States "[to enact] some mild form of legislation which they may call regulatory, thereby defeating the purpose of the Supreme Court decision and defeating the act itself." 91 Cong.Rec. 1443 (1945). The responses of Senators Ferguson and O'Mahoney, floor managers of the conference bill, indicate that while Congress was willing to permit the States to substitute regulation for competition with respect to matters such as rates and terms of coverage, the "boycott" clause defined a range of conduct that would remain within the purview of the Sherman Act.21 24 Petitioners cite passages of the debates in which Senator O'Mahoney refers to "blacklisting" and other exclusionary devices directed at independent insurance companies or agents. But those passages also provide support for respondents' position that the eradication of such practices was not the only objective of Congress in enacting § 3(b). In Senator O'Mahoney's view, "[t]he vice in the insurance industry . . . was not that there were rating bureaus, but that there was in the industry a system of private government which had been built up by a small group of insurance companies, which companies undertook by their agreements and understandings to invade the field of Congress to regulate commerce." 91 Cong.Rec. 1485 (1945). The conference substitute, he insisted, "outlaws completely all steps by which small groups have attempted to establish themselves in control in the great interstate and international business of insurance." Ibid. Perhaps the most revealing discussion is found in his explanation of why the language of § 3(b) was limited to "boycotts, coercion, or intimidation," and did not reach all combinations among insurance companies and their agents. He stated: 25 "[T]he committee was cognizant of the fact that many salutary combinations might be proposed and which ought to be approved, to which there was no objection. From the very beginning, Mr. President, of this controversy over insurance I have always taken the position that I saw no objection to combinations or agreements among the companies in the public interest provided those combinations and agreements were in the open and approved by law. Public supervision of agreements is essential. 26 * * * * * 27 "[M]y judgment is that every effective combination or agreement to carry out a program against the public interest of which I have had any knowledge in this whole industry study would be prohibited by [§ 3 (b )]." 91 Cong.Rec. 1486 (1945) (emphasis supplied). 28 The rules and regulations of private associations in the industry, while providing Senator O'Mahoney with a vivid example of "the sort of agreement which ought to be condemned," ibid., exemplified a larger evil—"regulation by private combinations and groups," id., at 1483—that required the continued application of the herman Act.22 29 The language of § 3(b) is broad and unqualified; it covers "any" act or agreement amounting to a "boycott, coercion, or intimidation." If Congress had intended to limit its scope to boycotts of competing insurance companies or agents, and to preclude all Sherman Act protection for policyholders, it is not unreasonable to assume that it would have made this explicit. While the legislative history does not point unambiguously to the answer, it provides no substantial support for limiting language that Congress itself chose not to limit.23 C 30 Petitioners also contend that the structure of the Act supports their reading of § 3(b). They note that this Court has interpreted the term "business of insurance" in § 2(b) broadly to encompass "[t]he relationship between insurer and insured, the type of policy which could be issued, its reliability, interpretation, and enforcement," SEC v. National Securities, Inc., 393 U.S., at 460, 89 S.Ct., at 568, and has held that the mere enactment of "prohibitory legislation" and provision for "a scheme of administrative supervision" constitute adequate regulation to satisfy the proviso to § 2(b), FTC v. National Casualty Co., 357 U.S., at 564-565, 78 S.Ct., at 1262. Thus, petitioners conclude, § 3(b) cannot be interpreted in a fashion that would undermine the congressional judgment express d in § 2(b) that the protection of policyholders is the primary responsibility of the States and that the state regulation which precludes application of federal law is not limited to regulation specifically authorizing the conduct challenged. 31 Petitioners rely on a syllogism that is faulty in its premise, for it ignores the fact that § 3(b) is an exception to § 2(b), and that Congress intended in the "boycott" clause to carve out of the overall framework of plenary state regulation an area that would remain subject to Sherman Act scrutiny. The structure of the Act embraces this exception. Unless § 3(b) is read to limit somewhat the sweep of § 2(b), it serves no purpose whatever. Petitioners do not press their argument that far, but they suggest no persuasive reason for engrafting a particular limitation on § 3(b) that is justified neither by its language nor by the legislative history.24 V 32 We hold that the term "boycott" is not limited to concerted activity against insurance companies or agents or, more generally, against competitors of members of the boycotting group. It remains to consider whether the type of private conduct alleged to have taken place in this case, directed against policyholders, constitutes a "boycott" within the meaning of § 3(b). A. 33 The conduct in question accords with the common understanding of a boycott. The four insurance companies that control the market in medical malpractice insurance are alleged to have agreed that three of the four would not deal on any terms with the policyholders of the fourth. As a means of ensuring policyholder submission to new, restrictive ground rules of coverage, St. Paul obtained the agreement of the other petitioners, strangers to the immediate dispute, to refuse to sell any insurance to its policyholders. "A valuable service germane to [respondents'] business and important to their effective competition with others was withheld from them by collective action." Silver v. New York Stock Exchange, 373 U.S. 341, 348-349, n. 5, 83 S.Ct. 1246, 1252, 10 L.Ed.2d 389 (1963). 34 The agreement binding petitioners erected a barrier between St. Paul's customers and any alternative source of the desired coverage, effectively foreclosing all possibility of competition anywhere in the relevant market. This concerted refusal to deal went well beyond a private agreement to fix rates and terms of coverage, as it denied policyholders the benefits of competition in vital matters such as claims policy and quality of service. Cf. Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 55, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). St. Paul's policyholders became the captives of their insurer. In a sense the agreement imposed an even greater restraint on competitive forces than a horizontal pact not to compete with respect to price, coverage, claims policy, and service, since the refusal to deal in any fashion reduced the likelihood that a competitor might have broken ranks as to one or more of the fixed terms.25 The conduct alleged here is certainly not, in Senator O'Mahoney's terms, within the category of "agreements which can normally be made in the insurance business," 91 Cong.Rec. 1444 (1945), or "agreements and combinations in the public interests [sic ] which can safely be permitted," id., at 1486. B 35 We emphasize that the conduct with which petitioners are charged appears to have occurred outside of any regulatory or cooperative arrangement established by the laws of Rhode Island. There was no state authorization of the conduct in question. This was the explicit premise of the Court of Appeals' decision, see 555 F.2d at 9, and petitioners do not aver that state law or regulatory policy can be said to have required or authorized the concerted refusal to deal with St. Paul's customers.26 36 Here the complaint alleges an attempt at "regulation by private combinations and groups," 91 Cong.Rec. 1483 (1945) (remarks of Sen. O'Mahoney). This is not a case where a State has decided that regulatory policy requires that certain categories of risks be allocated in a particular fashion among insurers, or where a State authorizes insurers to decline to insure particular risks because the continued provision of that insurance would undermine certain regulatory goals, such as the maintenance of insurer solvency. In this case, a group of insurers decided to resolve by private action the problem of escalating damages claims and verdicts by coercing the policyholders of St. Paul to accept a severe limitation of coverage essential to the provision of medical services. See n. 4, supra. We conclude that this conduct, as alleged in the complaint, constitutes a "boycott" under § 3(b).27 37 Our ruling does not alter § 2(b)'s protection of state regulatory and tax laws, its recognition of the primacy of state regulation, or the limited applicability of the federal antitrust laws generally "to the extent that" the "business of insurance" is not regulated by state law. Moreover, conduct by individual actors falling short of concerted activity is simply not a "boycott" within § 3(b). Cf. Times-Picayune v. United States, 345 U.S., at 625, 73 S.Ct., at 889. Finally, while we give force to the congressional intent to preserve Sherman Act review for certain types of private collaborative activity by insurance companies, we do not hold that all concerted activity violative of the Sherman Act comes within § 3(b). Nor does our decision address insurance practices that are compelled or specifically authorized by state regulatory policy. 38 The judgment of the Court of Appeals therefore is 39 Affirmed. 40 Mr. Justice STEWART, with whom Mr. Justice REHNQUIST joins, dissenting. 41 Section 2(b) of the McCarran-Ferguson Act provides that the Sherman Act "shall be applicable to the business of insurance to the extent that such business is not regulated by State Law."1 Section 3(b) limits the antitrust immunity which the States may confer by providing that the Sherman Act shall remain applicable to agreements or acts of "boycott, coercion, or intimidation."2 Today the Court holds that the term "boycott" found in § 3(b) should be given the same broad meaning that it has been given in Sherman Act case law. It seems clear to me, however, that the "boycott, coercion, or intimidation" language of § 3(b) was intended to refer, not to the practices defined and condemned by the Sherman Act, but to the narrower range of practices involved in United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440, the case that prompted Congress to enact the McCarran-Ferguson Act. 42 * The Court accurately reads the Act as not conferring broad-scale antitrust immunity on the insurance industry, at least not for practices that "occurred outside of any regulatory or cooperative arrangement established by the laws of Rhode Island." Ante, at 553. Although Congress plainly intended to give the States priority in regulating the insurance industry, it just as plainly intended not to immunize that industry from federal antitrust liability "to the extent that such business is not regulated by State Law."3 In thus construing the Act's general purpose, the Court is true to the legislative history. But I cannot understand why the Court then tries to achieve that statutory purpose by giving an unduly expansive reading to § 3(b), when the provision that obviously was meant to accomplish THAT purpose was § 2(b). Properly read, § 2(b) suspends the federal antitrust laws only to the extent that an area or practice is regulated by state law.4 Although the Court correctly notes that § 2(b) "is not in issue in this case," ante, at 540, neither section can be construed entirely independently of the other. 43 The broad reading the Court gives to § 3(b) seems to me not only to misconceive the larger design of the Act, but also to distort its basic purpose. Section 3(b) is an absolute exception to § 2(b). It brings back under the Sherman Act a range of practices, whether authorized by state law or not.5 By construing § 3(b) very expansively, the Court narrows the field of regulation open to the States. Yet it was clearly Congress' intent to give the States generous license to govern the business of insurance free of interference from the antitrust laws. 44 Because I believe that the Court's construction of § 3(b) overlooks the role of § 2(b) and misperceives congressional intent, I respectfully dissent. II 45 It is true, as the Court says, that the McCarran-Ferguson Act fails to tell us in so many words that the phrase "boycott, coercion, or intimidation" should be read in some light other than that "tradition of meaning, as elaborated in the body of decisions interpreting the Sherman Act." Ante, at 541. Yet, the very selection of precisely those three words from the entire antitrust lexicon indicates that they were intended to have some special meaning apart from traditional usage. Indeed, if "boycott" is to be given the same scope it has in Sherman Act case law, then so should "coerCION" AND "intimidation." But that reading of § 3(b) would plainly devour the broad antitrust immunity bestowed by § 2(b).6 Congress could not logically have intended that result. To understand the special sense in which it used the words "boycott, coercion, or intimidation," therefore, we must turn to the legislative history of the McCarran-Ferguson Act. 46 On November 20, 1942, the Justice Department secured an indictment against a private association of stock fire insurance companies and 27 individuals for alleged violations of §§ 1 and 2 of the Sherman Act. The prosecution came as a surprise to many, because Supreme Court precedents dating back 75 years had implied that the insurance industry was not a part of interstate commerce subject to congressional regulation under the Commerce Clause.7 On this ground, the District Court sustained the defendants' demurrer to the indictment on August 15, 1943,8 and the Government took an appeal directly to the Supreme Court. 47 Uncertain about the continuing validity of many state regulations that conflicted with federal law, various insurance companies and organizations immediately sought relief from Congress. Some threatened to withhold state taxes on the ground that States were then thought to be prohibited from taxing interstate commerce.9 These threats prompted state officials to press for congressional action too. Months before the Supreme Court even heard arguments in the case, duplicate bills had been introduced i both Houses of Congress which would have given the insurance industry blanket immunity from the Sherman and Clayton Acts.10 A joint congressional committee held extensive hearings from September 1943 into June 1944, but a vote on the bills was delayed until after the Court announced its decision. 48 That decision came on June 5, 1944. The Court held that the business of insurance is part of interstate commerce, and that the Congress which enacted the Sherman Act had not intended to exempt that industry. United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440. Of particular relevance to our inquiry is the Court's description of the unlawful activities alleged in the South-Eastern Underwriters indictment: 49 "The member companies of S. E. U. A. controlled 90 per cent of the fire insurance and 'allied lines' sold by stock fire insurance companies in the six states where the conspiracies were consummated. Both conspiracies consisted of a continuing agreement and concert of action effectuated through S. E. U. A. The conspirators not only fixed premium rates and agents' commissions, but employed boycotts together with other types of coercion and intimidation to force nonmember insurance companies into the conspiracies, and to compel persons who needed insurance to buy only from S. E. U. A. members on S. E. U. A. terms. Companies not members of S. E. U. A. were cut off from the opportunity to reinsure their risks, and their services and facilities were disparaged; independent sales agencies who defiantly represented nonS. E. U. A. companies were punished by a withdrawal of the right to represent the members of S. E. U. A.; and persons needing insurance who purchased from non-S. E. U. A. companies were threatened with boycotts and withdrawal of all patronage." Id., at 535-536, 64 S.Ct. at 1164 (footnote omitted). The Court concluded: 50 "Few states go so far as to permit private insurance companies, without state supervision, to agree upon and fix uniform insurance rates. . . . No states authorize combinations of insurance companies to coerce, intimidate, and boycott competitors and consumers in the manner here alleged, and it cannot be that any companies have acquired a vested right to engage in such destructive business practices." Id., at 562, 64 S.Ct., at 1178. 51 Before announcement of the Court's opinion, the phrase "boycott, coercion, or intimidation" had appeared in none of the lengthy debates or numerous legislative proposals in Congress from September 1943 to May 1944. 52 The bill totally exempting the insurance industry from the Sherman and Clayton Acts passed the House of Representatives on June 22, 1944.11 Although a majority of the Senate Committee recommended enactment of the House bill,12 six members urged that the Senate not pass the bill but wait for the legislative proposal then being drafted by the National Association of Insurance commissioners, an organization of state officials.13 The Senate let the House bill die that session,14 and the Committee turned its attention to the recommendation of the state insurance commissioners. 53 The state officials proposed a statute that, after a moratorium period of several years, would have exempted from the Sherman Act a specific list of cooperative practices.15 The proposed statute also provided: "Nothing contained in this section shall render the said Sherman Act inapplicable to any act of boycott, coercion, or intimidation."16 The accompanying report explained the operation and the relationship of these two provisions:17 54 "A suspension until July 1, 1948, is requested, in which 55 the Sherman and Clayton Act shall not apply, in order to allow adjustments within the business and time for enactment by States of such further legislation as they may deem necessary or desirable. After July 1, 1948, it is provided that the Sherman Act shall not apply to the use of cooperative rates, forms, and underwriting plans where State-approved, to adjustment, inspection and similar agreements[,] to acts of reinsurance or co-insurance, to commission agreements, to the collection of statistics, nor to cooperative action for making of rates, rules, or plans where their use is not mandatory. 56 "No exemption is sought nor expected for oppressive or destructive practices. . . . Provision is made that the Sherman Act shall not now or hereafter be inapplicable to any act of boycott, coercion, or intimidation." 90 Cong.Rec. A4406 (1944). 57 This proposal formed the basis for S. 340, which was reported out with the unanimous support of the Senate Committee on the Judiciary in January 1945.18 The list of specific practices immunized from antitrust liability was dropped, leaving the provision that suspended the Clayton and Sherman Acts for several years, during which time the States could accommodate their regulatory activities to the federal antitrust laws.19 Even during the moratorium, however, the Sherman Act was to remain applicable to "any act of boycott, coercion, or intimidation."20 This provision was not needed after the moratorium because the antitrust laws would take full effect after that time. Thus, the Senate bill as finally passed made federal antitrust policy paramount to state regulation. 58 The House passed a version of the bill striking the opposite balance. Its bill, too, carried a moratorium provision with the boycott limitation, but at the end of that period the federal antitrust laws would be pre-empted by state regulations even insofar as acts of "boycott, coercion, or intimidation" were concerned.21 59 A Conference Committee then within a short period worked out a compromise bill which became the present McCarran-Ferguson Act. Section 2(b) of this bill steered a middle course by making the Sherman Act, the Clayton Act, and the Federal Trade Commission Act applicable to the business of insurance after a moratorium period, but only "to the extent that such business is not regulated by State law."22 At the same time, the "boycott, coercion, and intimidation" limitation on the States' power to confer antitrust immunity was extended beyond the moratorium period to the full life of the Act.23 III 60 From this review of the legislative history, it should be clear that the scope given both §§ 2(b) and 3(b) is crucial to the effectuation of the compromise struck by the 79th Congress. If § 2(b) is construed broadly to pre-empt federal law without the need for specific state legislation and if § 3(b) is given no effect as a limitation on that pre-emption, the original House position prevails. On the other hand, if § 3(b) is construed as broadly as the Sherman Act itself, then the original Senate version largely prevails, no matter how § 2(b) is interpreted. Congress clearly intended a middle position between these extremes. That position cannot be given effect unless § 2(b) is read to pre-empt federal law only to the extent the States have actually regulated a particular area, and § 3(b) is viewed as referring to a range of evils considerably narrower than those prohibited by the Sherman Act. 61 From the legislative debates on S. 340, the Committee Reports, and the design of the statute itself, it is evident that the "boycott, coercion, or intimidation" provision is most fairly read as referring to the kinds of antitrust violations alleged in South-Eastern Underwriters —that is, attempts by members of the insurance business to force other members to follow the industry's private rules and practices. Repeatedly, Congressmen involved in the drafting of the statute drew a distinction between state regulation and private regulation.24 Congress plainly wanted to allow the States to authorize anticompetitive practices which they determined to be in the public interest, as indicated by formal state approval.25 Section 2(b) does just that. Congress just as plainly wanted to make sure that private organizations set up to govern the industry, such as the South-Eastern Underwriters Association, would not escape the reach of the federal antitrust laws. Section 2(b) also meets this concern to the extent that States do not authorize or sanction anticompetitive practices promoted by such organizations. But § 2(b) leaves open the possibility that States might, at the prompting of these powerful organizations, enact merely permissive regulations sufficiently specific to confer antitrust immunity, thus leaving those organizations free to coerce compliance from uncooperative competitors. Properly construed, § 3(b) fills this gap by keeping the Sherman Act fully applicable to private enforcement —by the means described in the South-Eastern Underwriters case—of industry rules and practices, even if those rules and practices are per itted by state law.26 Similarly where a State enacts its own antitrust laws conferring § 2(b) immunity, § 3(b) retains Sherman Act coverage for those especially "destructive . . . practices," 322 U.S., at 562, 64 S.Ct., at 1178, involved in South-Eastern Underwriters. 62 The key feature of § 3(b), then, is that the agreement or act of "boycott, coercion, or intimidation" must be aimed ultimately at a member of the insurance industry. As in South-Eastern Underwriters, the immediate targets may be policyholders or others outside the industry, but unless they are boycotted, coerced, or intimidated for the purpose of forcing other insurance companies or agents to comply with industry rules, § 3(b) does not apply. 63 It follows, then, that § 3(b) does not reach the boycott alleged in this case. The respondents' complaint does not contend that petitioner insurance companies refused to sell them insurance with the ultimate aim of disciplining or coercing other insurance companies. Rather, if there was an agreement among the petitioners, the complaint would indicate that it was entirely voluntary. 64 I would reverse the judgment of the Court of Appeals. 1 The Mc arran-Ferguson Act provides in relevant part: "Sec. 2. (a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business. "(b) No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended, shall be applicable to the business of insurance to the extent that such business is not regulated by State Law. * * * * * "Sec. 3. (b) Nothing contained in this chapter shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation." 59 Stat. 34, as amended, 61 Stat. 448, 15 U.S.C. §§ 1012, 1013(b) (1976 ed.). 2 Both the amended complaint and a second amended complaint, filed after the District Court's dismissal of the antitrust claim, also alleged several state-law claims. Review of the disposition of those claims has not been sought in this Court. To the extent the complaint alleges a violation of the Clayton Act, 38 Stat. 730, as amended, 15 U.S.C. § 12 et seq. (1976 ed.), that claim is barred by respondents' concession that the requirements of § 2(b) of the McCarran-Ferguson Act are satisfied in this case. See n. 9, infra. 3 An "occurrence" policy protects the policyholder from liability for any act done while the policy is in effect, whereas a "claims made" policy protects the holder only against claims made during the life of the policy. The Court of Appeals noted that "a doctor who practiced for only one year, say 1972, would need only one 1972 'occurrence' policy to be fully covered, but he would need several years of 'claims made' policies to protect himself from claims arising out of his acts in 1972." 555 F.2d 3, 5 n. 1 (CA1 1977). 4 Respondents further assert that "it is virtually impossible for a physician, hospital or other medical personnel to engage in the prac ice of medicine or provide medical services or treatment without medical malpractice insurance," App. 22, and that as a result of petitioners' conspiracy, they "may be forced to withhold medical services and disengage from the practice of medicine, except on an emergency basis," id., at 26. 5 Following the rendition of the legislative history in Transnational Ins. Co. v. Rosenlund, 261 F.Supp. 12 (Or.1966), two Circuits squarely have held that § 3(b) reaches only "blacklists" of insurance companies or agents by other insurance companies or agents. See Meicler v. Aetna Casualty & Surety Co., 506 F.2d 732, 734 (CA5 1975); but cf. Battle v. Liberty National Life Ins. Co., 493 F.2d 39, 51 (CA5 1974), cert. denied, 419 U.S. 1110, 95 S.Ct. 784, 42 L.Ed.2d 807 (1975); Addrissi v. Equitable Life Assurance Soc., 503 F.2d 725, 729 (CA9 1974), cert. denied, 420 U.S. 929, 95 S.Ct. 1129, 43 L.Ed.2d 400 (1975). Two other Circuits have adopted a broader reading of § 3(b). See Ballard v. Blue Shield of Southern W. Va., Inc., 543 F.2d 1075, 1078 (CA4 1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1341, 51 L.Ed.2d 601 (1977) (alleged conspiracy between insurers and physicians to deny health insurance coverage for chiropractic services); Proctor v. State Farm Mut. Auto. Ins. Co., 182 U.S.App.D.C. 264, 276-277, 561 F.2d 262, 274-275 (1977), cert. pending, No. 77-580 (alleged conspiracy between insurers and automobile repair shops to boycott noncooperative repair shops). See also Monarch Life Ins. Co. v. Loyal Protective Life Ins. Co., 326 F.2d 841, 846 (CA2 1963) (dictum), cert. denied, 376 U.S. 952, 84 S.Ct. 968, 11 L.Ed.2d 971 (1964). 6 To establish a stable market for medical malpractice insurance, the JUA was created on a temporary basis by Emergency Regulation XXI, R. I. Dept. of Business Regulation, Insurance Div., June 16, 1975, App. 114-127, and received legislative sanction in R.I.Gen.Laws § 42-14.1-1 (1977). The emergency regulation was revised in April 1976 to permit the writing of medical malpractice insurance outside the JUA for all providers of health-care services other than physicians. App. 150-151. A subsequent change in state law authorizes the Director to promulgate regulations permitting the selling of such insurance outside of the JUA to physicians as well. 1976 R.I.Pub.Laws, ch. 79, § 1. 7 Although this case is technically not moot, the parties are not barred from showing, "on remand, that the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary." United States v. Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968); see United States v. W. T. Grant Co., 345 U.S. 629, 633-636, 73 S.Ct. 894, 897-899, 97 L.Ed. 1303 (1953). We have not addressed respondents' claim for damages arising out of their inability "to obtain medical malpractice insurance on a reasonable basis after June 30, 1975," App. 26. Such a claim might itself preclude a finding of mootness, see e. g., Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 8-9, 98 S.Ct. 1554, 1559, 56 L.Ed.2d 30 (1978), but the parties have not advised the Court whether this claim survives the formation of the JUA. The Court of Appeals stated that respondents were "entitled to seek both injunctive relief and treble damages," noting, in a separate discussion, that "the change in malpractice coverage has increased costs for the doctors." 555 F.2d, at 12, and n. 7. The validity of the damages claim, in light of the role of the JUA and the considerations identified in this decision, is a matter for initial determination by the courts below. 8 The Government in that case brought a Sherman Act prosecution against the South-Eastern Underwriters Association (SEUA), its membership of nearly 200 private stock fire insurance companies, and 27 individuals. The indictment alleged conspiracies to maintain arbitrary and noncompetitive premium rates on fire and "allied lines" of insurance in several States, and to monopolize trade and commerce in the same lines of insurance. It was asserted that the conspirators not only fixed rates but also, in the Court's words, "employed boycotts together with other types of coercion and intimidation to force nonmember insurance companies into the conspiracies, and to compel persons who needed insurance to buy only from [SEUA] members on [SEUA] terms." United States v. South-Eastern Underwriters Assn., 322 U.S., at 535, 64 S.Ct., at 1164. 9 Respondents did not contest below "that [petitioners'] acts were related to the business of insurance and that Rhode Island effectively regulates that business." 555 F.2d, at 6. They do not argue to the contrary in this Court. 10 The Court of Appeals' ruling rested on the determination that respondents charged petitioners "with an unlawful boycott," Id., at 12. In light of our disposition of this case, we do not decide the scope of the terms "coercion" and "intimidation" in § 3(b). 11 See Bird, Sherman Act Limitations on Noncommercial Concerted Refusals to Deal, 1970 Duke L.J. 247, 248; Webster's New International Dictionary of the English Language 321 (2d ed. 1949); 1 The Oxford English Dictionary 1040 (1933); Black's Law Dictionary 234 (4th ed. 1968). 12 The first decision of this Court dealing with a boycott situation, although without using the term, appears to be Montague & Co. v. Lowry, 193 U.S. 38, 24 S.Ct. 307, 48 L.Ed. 608 (1904), a nonlabor case involving an association of wholesalers and manufacturers that provided in its bylaws that no dealer member could buy from any manufacturer who was not a member of the association or sell for less than list price to a nonmember. See Kirkpatrick, Commercial Boycotts as Per Se Violations of the Sherman Act, 10 Geo.Wash.L.Rev. 302, 306-307 (1942). 13 The cases cited in the text are significant for their general interpretation of the Sherman Act even though they are no longer controlling as to the applicability of the antitrust laws to the activities of labor unions. See Connell Co. v. Plumbers & Steamfitters, 421 U.S. 616, 621-623, 95 S.Ct. 1830, 1834-1835, 44 L.Ed.2d 418 (1975); United States v. Hutcheson, 312 U.S. 219, 234, 61 S.Ct. 463, 467, 85 L.Ed. 788 (1941); Drivers' Union v. Lake Valley Co., 311 U.S. 91, 102-103, 61 S.Ct. 122, 127-128, 85 L.Ed. 63 (1940). 14 See L. Sullivan, Handbook of the Law of Antitrust 256-259 (1977). Other commentators have framed a somewhat broader definition for a per se offense in this area. See Barber, Refusals to Deal under the Federal Antitrust Laws, 103 U.Pa.L.Rev. 847, 875 (1955) ("group action to coerce third parties to conform to the pattern of conduct desired by the group or to secure their removal from competition"); Kirkpatrick, supra n. 12, at 305 ("interference with the relations between a nonmember of the combination and its members or others"). We express no opinion, however, as to the merit of any of these definitions. 15 Kiefer-Stewart Co. involved a horizontal resale price maintenance scheme, see White Motor Co. v. United States, 372 U.S. 253, 260, 83 S.Ct. 696, 700, 9 L.Ed.2d 738 (1963), but it has been cited as a "group boycott" case, see Klor's v. Broadway-Hale Stores, 359 U.S. 207, 212 n. 5, 79 S.Ct. 705, 709, 3 L.Ed.2d 741 (1959); Times-Picayune v. United States, 345 U.S. 594, 625, 73 S.Ct. 872, 889, 97 L.Ed. 1277 (1953). See also United States v. Frankfort Distilleries, 324 U.S. 293, 295-296, 65 S.Ct. 661, 662-663, 89 L.Ed. 951 (1945) (alleged conspiracy of producers, wholesalers, and retailers to maintain local retail prices by means of a "boycott program"). See generally Report of the U.S. Attorney General's National Committee to Study the Antitrust Laws 137 (1955) ("approv[ing] the established legal doctrines which condemn group boycotts of customers or suppliers as routine unreasonable restraints forbidden by Section 1 of the Sherman Act"). 16 Petitioners suggest that the alleged conspiracy in this case presents a horizontal agreement not to compete, as distinguished from a boycott. See United States v. Topco Associates, 405 U.S. 596, 612, 92 S.Ct. 1126, 1135, 31 L.Ed.2d 515 (1972); United States v. Consolidated Laundries Corp., 291 F.2d 563, 573-575 (CA2 1961). 17 As one commentator has noted: "If an individual competitor lacks the bargaining power to get a particular contract term, the courts apparently will not let him join with other competitors and use their collective bargaining power to compel the insertion of such a term in the contract, no matter how desirable." Bird, supra n. 11, at 263, discussing, inter alia, Binderup v. Pathe Exchange; Paramount Famous Corp. v. United States, 282 U.S. 30, 51 S.Ct. 42, 75 L.Ed. 145 (1930). 18 We note our disagreement with Mr. Justice STEWART's expression of alarm that a reading of the operative terms of § 3(b), consistent with traditional Sherman Act usage, "would plainly devour the broad antitrust immunity bestowed by § 2(b)." Post, at 559. Whatever the precise reach of the terms "boycott," "coercion," and "intimidation," the decisions of this Court do not support the dissent's suggestion that they are coextensive with the prohibitions of the Sherman Act. See, e. g., Eas ern States Lumber Assn. v. United States, 234 U.S. 600, 611, 34 S.Ct. 951, 954, 58 L.Ed. 1490 (1914), quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 438, 31 S.Ct. 492, 496, 55 L.Ed. 797 (1911). In this regard, we are not cited to any decision illustrating the assertion, post, at 559 n. 6, that price fixing, in the absence of any additional enforcement activity, has been treated either as "a boycott" or "coercion." 19 Brief for Appellees Aetna Casualty & Surety Co. et al. in No. 76-1226, p. 18 (CA 1); Brief for Appellees St. Paul et al. in No. 76-1226, p. 14 (CA 1). 20 The bill introduced by Senators McCarran and Ferguson (S. 340) provided that only federal legislation specifically dealing with insurance could override state laws relating to the regulation or taxation of that business, and created a moratorium period, staying the operation of the Sherman and Clayton Acts to enable the States to adjust their statutes to South-Eastern Underwriters. S.Rep.No.20, 79th Cong., 1st Sess. (1945); 91 Cong.Rec 478 (1945). Largely at the insistence of Senator O'Mahoney, it was amended on the floor of the Senate to provide that the Sherman and Clayton Acts would not be pre-empted at the expiration of the moratorium. Id., at 488. The bill introduced in the House and reported favorably out of committee contained provisions that were similar to the original bill in the Senate. H.R.Rep.No.143, 79th Cong., 1st Sess., 1 (1945); 91 Cong.Rec. 1085 (1945). The bill as reported passed the House. A Conference Committee then was appointed, composed of Senators McCarran, O'Mahoney, and Ferguson, and Representatives Sumners, Walter, and Hancock. In place of the Senate floor amendment, the conference substitute added the proviso to § 2(b) that is presently in the Act. H.R.Conf.Rep.No.213, 79th Cong., 1st Sess., 1-2 (1945). 21 Senator Ferguson perceived a distinction between legislation authorizing "rating bureaus," which would not be disturbed by the bill, 91 Cong.Rec. 1481 (1945), and legislation permitting insurance companies to engage in practices constituting a "boycott, coercion, or intimidation," which would remain subject to the Sherman Act, ibid. Senator O'Mahoney noted that the conference substitute would permit "certain agreements which can normally be made in the insurance business which are in the public interest, but which might conceivably be a violation of the antitrust law," such as a "rating bureau" operating "under the supervision and regulation of the State . . . ." Id., at 1444. But other practices constituting "regulation by private combinations and groups," id., at 1483, would have to pass muster under the Sherman Act. 22 The dissenting opinion of Mr. Justice Stewart advances the view abandoned by petitioners in this Court, see supra, at 546, that § 3(b) applies only "to the kinds of antitrust violations alleged in South-Eastern Underwriters . . . ." Post, at 565. The dissent refers to no statement, either in the Committee Reports or the debates, asserting that § 3(b)'s only purpose was to keep alive the South-Eastern Underwriters indictment or purporting to restrict its scope to the practices specifically alleged therein. There is nothing in the proposal of the National Association of Insurance Commissioners, identified by the dissent as the model for the Senate bill, S. 340, that evinces such a limited purpose. The report accompanying the proposal stated in pertinent part: "No exemption is sought nor expected for oppressive or destructive practices. On the whole, insurance has been conducted on a high plane, with great benefit to the public, and if inconsistent procedures are found they must be eradicated. Provision is made that the Sherman Act shall not now or hereafter be inapplicable to any act of boycott, coercion, or intimidation." 90 Cong.Rec. A4406 (1944) (emphasis supplied). It is difficult to view this language as supporting the dissent's interpretation. It also is asserted that the "boycott" clause in the Senate bill was intended to apply only during the moratorium period, a fact which supposedly supports the dissent's narrow reading of the clause. But the dissent concedes that "[w]hatever its initial impetus . . . , there is no indication that the provision was finally thought to be applicable only to the South-Eastern litigation." Post, at 563-564, n. 20. Moreover, neither the Committee Reports, see supra, at 546-547, nor the insurance commissioners' statement, quoted above, suggests an intent to suspend the operation of the "boycott" clause at any time. Certainly Senator Ferguson disclaimed such an intent, stating he saw "no reason for not changing the word 'section' to 'act', because I am of the opinion that that was the intention of all concerned." 91 Cong.Rec. 479 (1945). There simply is no persuasive evidence of an original design merely to preserve the South-Eastern Underwriters indictment. 23 The legislative materials do not demonstrate with necessary clarity "that [Congress] has in fact used a private code, so that what appears to be violence to language is merely respect to special usage." Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527, 543-544 (1947). 24 Even under petitioners' reading, certain cooperative arrangements among insurance companies may constitute a "boycott" under § 3(b) notwithstanding the applicability of § 2(b) to activities that "relate . . . closely to their status as reliable insurers," SEC v. National Securities, Inc., 393 U.S. 453, 460, 89 S.Ct. 564, 568, 21 L.Ed.2d 668 (1969), and the adequacy of state regulation of the industry. Hence, petitioners' line may not be as "bright" as they suggest. The dissenting opinion of Mr. Justice Stewart also argues that the structure of the Act supports a restrictive reading of § 3(b). We do not think the dissent's restatement of the holding in FTC v. National Casualty Co., 357 U.S. 560, 564, 78 S.Ct. 1260, 1262, 2 L.Ed.2d 1540 (1958), see post, at 557-558 n. 4, furthers resolution of the problem at hand. It is not disputed that Congress intended that certain forms of "regulation by private combinations and groups," 91 Cong.Rec. 1483 (1945) (remarks of Sen. O'Mahoney), remain subject to Sherman Act scrutiny, notwithstanding enactment of the type of "prohibitory legislation," coupled with "enforcement through a scheme of administrative supervision," that was deemed sufficient for § 2(b) purposes in National Casualty Co. In that case the Court rejected the Federal Trade Commission's argument that "where a statute, instead of sanctioning a particular type of transaction, prohibits conduct in general terms and provides for enforcement through administrative action, there is realistically, in the absence of such enforcement, no 'regulation' in fact." Brief for Federal Trade Commission, O.T. 1957, Nos. 435 and 436, p. 53. The question that nonetheless remains is whether Congress intended to foreclose all Sherman Act protection for policyholders victimized by private conspiracies of insurers when a State has engaged in generally comprehensive regulation under § 2(b). We think the record does not support such a foreclosure. 25 "[E]ven where prices are rigidly fixed, the members of a cartel will be able to compete with each other with respect to product quality unless a homogeneous product is involved. Indeed, even if the product is homogeneous there will be room for rivalry in such matters as promptness in filling orders and the provision of ancillary services. An effective division of markets, by contrast, might substantially wash out all opportunity for rivalry." Sullivan, supra n. 14, at 224-225. 26 Counsel for petitioners stated at oral argument that he was not sure whether St. Paul had filed the specific policy change in issue with the director of the state insurance division. Tr. of Oral Arg. 8. Even if we assume that such a filing had been made, there is no suggestion that the State, in furtherance of its regulatory policies, authorized the concerted refusal to deal on any terms with St. Paul's policyholders. Although the dissenting opinion below noted "that Rhode Island has exercised its right to regulate all material aspects of the business of insurance and that the actions complained of relative to withholding malpractice insurance were all part of such regulated business," 555 F.2d, at 14, this statement refers to the requirements of the proviso to § 2(b). The dissent did not argue that the agreement in question was within the contemplation of any state regulatory scheme. 27 We have no occasion here to decide whether the element of state regulatory direction or authorization of the particular practice, absent in this case, is a factor to be considered in the definition of "boycott" within the meaning of § 3(b), or whether it comes into play as part of a possible defense under the "state action" doctrine, as elaborated in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), and its progeny. 1 Section 2 provides in full: "(a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business. "(b) No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended, shall be applicable to the business of insurance to the extent that such business is not regulated by State Law." 59 Stat. 34, as amended, 61 Stat. 448, 15 U.S.C. § 1012 (1976 ed.). 2 Section 3 provides in full: "(a) Until June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, and the Act of June 19, 1936, known as the Robinson-Patman Anti-Discrimination Act, shall not apply to the business of insurance or to acts in the conduct thereof. "(b) Nothing contained in this chapter [Act] shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation." 59 Stat. 34, as amended, 61 Stat. 448, 15 U.S.C. § 1013 (1976 ed.). 3 See n. 1, supra, and n. 4, infra. 4 In the present case the District Court in an oral opinion held that various Rhode Island laws, including state antitrust statutes, made the federal antitrust laws generally inapplicable to the petitioners under § 2(b). That ruling was implicitly accepted by the Court of Appeals, and has not been questioned here. See ante, at 540 n. 9. The legislative history in the Senate indicates that two kinds of state regulation were thought capable of suspending the federal antitrust laws under § 2(b). See 91 Cong.Rec. 1444 (1945) (remarks of Sen. O'Mahoney). First, a State could enact its own antitrust laws. Senator Murdock explained that "[i]nsofar as [the state laws] fail to cover the same ground covered by the Sherman Act and the Clayton Act, those [federal] acts become effective again" after the moratorium. Ibid. Second, a State could enact laws regulating various aspects of the business of insurance, such as rates and terms of coverage. Senator Ferguson explained that "if the States were specifically to legislate upon a particular point, and that legislation were contrary to the Sherman Act, the Clayton Act, or the Federal Trade Commission Act, then the State law would be binding." Id., at 1481. See also id., at 1443 (remarks of Sen. McCarran and of Sen. Ferguson); id., at 1444 (remarks of Sen. White). This Court has had few occasions to consider the operation of § 2(b). In SEC v. National Securities, Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668, the Court held that certain Arizona regulations protecting insurance company stockholders did not regulate the "business of insurance" within the meaning of § 2(b) and thus did not pre-empt the Securities Exchange Act of 1934. The case did not involve the antitrust proviso of § 2(b), and hence did not decide to what extent a State must regulate the "business of insurance" to pre-empt the federal antitrust laws. FTC v. National Casualty Co., 357 U.S. 560, 78 S.Ct. 1260, 2 L.Ed.2d 1540, is the only case in this Court involving that question. There, the Court held that state statutes "prohibiting unfair and deceptive insurance practices," id., at 562, 78 S.Ct., at 1261, pre-empted Federal Trade Commission regulations "prohibiting respondent insurance companies from carrying on certain advertising practices found by the Commission to be false, misleading, and deceptive, in violation of the Federal Trade Commission Act . . . ." Id., at 561-562, 78 S.Ct., at 1261. Noting that no one had alleged that the state regulation was "mere pretense," the Court rejected the FTC's argument that the state regulation was "too 'inchoate' to be 'regulation until [the State's statutory] prohibition has been crystallized into 'administrative elaboration of these standards and application in individual cases.' " Id., at 564, 78 S.Ct., at 1262. 5 In Senator Ferguson's words: "There are certain things which a State cannot interfere with. It cannot interfere with the application of the Sherman Act to any agreement to boycott, coerce, or intimidate, or an act of boycotting, coercion, or intimidation." 91 Cong.Rec. 1443 (1945). 6 Most practices condemned by the Sherman Act can be cast as an act or agreement of "boycott, coercion, or intimidation." For example, price fixing can be seen either as a refusal to deal except at a uniform price (i. e., a boycott), or as an agreement to force buyers to accept an offer on the sellers' common terms (i. e., coercion). Yet state-sanctioned price fixing immunized by § 2(b) was plainly not intended to fall within the § 3(b) exception. See 91 Cong.Rec. 1481 (1945) (remarks of Sen. Ferguson). 7 See H.R.Rep.No.143, 79th Cong., 1st Sess., 2 (1945); U.S.Code Cong.Serv. 1945, p. 670. 8 United States v. South-Eastern Underwriters Assn., 51 F.Supp. 712 (N.D.Ga.). 9 See H.R.Rep.No.143, supra, at 2. 10 H.R. 3270, S. 1362, 78th Cong., 1st Sess. (1943). 11 90 Cong.Rec. 6510 (1944). 12 S.Rep.No.1112, 78th Cong., 2d Sess. (1944). 13 Id., pt. 2, at 6. 14 90 Cong.Rec. 8054 (1944). 15 Id., at A4406. 16 Ibid. 17 The report also appeared to reflect the testimony of ttorney General Biddle, who, on the day after H.R. 3270, see n. 10 supra, passed the House, appeared before the Senate Judiciary Subcommittee that was considering this same legislation. He assured the Subcommittee that the Government did not intend to bring new prosecutions while Congress was considering legislation on the subject, but he insisted that the South-Eastern case should and would go forward because of the seriousness of the charges. After quoting a portion of the Court's opinion set out in the text, supra, at 560-561, he stated: "[T]hat case was not merely a price-fixing case, but involved very serious boycotting. It involved boycotting by insurance companies of agents who would not belong to the association, and under the laws of the State in which the association operated, many of the acts alleged in the indictment would have been illegal." Joint Hearing on S. 1362 et al. before the Subcommittees of the Committees on the Judiciary, 78th Cong., 2d Sess., 636 (1944). 18 S.Rep.No.20, 79th Cong., 1st Sess. (1945). 19 In the floor debates, several Senators pointed out that the bill could be read to support pre-emption of the federal antitrust laws by state regulations. 91 Cong.Rec. 480 (1945). To clarify its intent, the Senate amended S. 340 on the floor to make the antitrust laws expressly and fully applicable after the moratorium period. Id., at 488. 20 As the bill came out of committee, the boycott provision applied only to the section establishing a short-term moratorium. Id., at 479. A proposal to extend the boycott provision to the full Act was offered by Senator Murdock and accepted by Senator Ferguson, ibid., but was never ratified by the Senate. That the boycott exception was originally drafted only to keep the Sherman Act partially in effect during the moratorium suggests that the provision may have been initially intended to prevent interference with the prosecution of the defendants in South-Eastern Underwriters, who still faced trial following the decision of this Court. Certainly, many Congressmen expressed their opposition to legislation that would free those defendants from liability. See, e. g., 90 Cong.Rec. 6450 (1944) (remarks of Rep. Celler); id., at 6452 (remarks of ep. La Follette); Joint Hearings, supra n. 17, at 637 (remarks of Sen. Hatch). On its face, the boycott provision removed any doubt about the Government's authority to continue with that prosecution. Whatever its initial impetus, however, there is no indication that the provision was finally thought to be applicable only to the South-Eastern litigation. 21 See 91 Cong.Rec. 1085 (1945); see also id., at 1484-1485. 22 See n. 1, supra. 23 See n. 2, supra. 24 See, e. g., 91 Cong.Rec. 1480, 1483, 1485 (1945) (remarks of Sen. O'Mahoney); id., at 1481 (remarks of Sen. Ferguson). 25 See id., at 1486 (remarks of Sen. O'Mahoney). 26 See id., at 1485-1486 (remarks of Sen. O'Mahoney).

78

438 U.S. 478 98 S.Ct. 2894 57 L.Ed.2d 895 Earl L. BUTZ et al., Petitioners,v.Arthur N. ECONOMOU et al. No. 76-709. Argued Nov. 7, 1977. Decided June 29, 1978. Syllabus After an unsuccessful Department of Agriculture proceeding to revoke or suspend the registration of respondent's commodity futures commission company, respondent filed an action for damages in District Court against petitioner officials (including the Secretary and Assistant Secretary of Agriculture, the Judicial Officer, the Chief Hearing Examiner who had recommended sustaining the administrative complaint, and the Department attorney who had prosecuted the enforcement proceeding), alleging, inter alia, that by instituting unauthorized proceedings against him they had violated various of his constitutional rights. The District Court dismissed the action on the ground that the individual defendants, as federal officials, were entitled to absolute immunity for all discretionary acts within the scope of their authority. The Court of Appeals reversed, holding that the defendants were entitled only to the qualified immunity available to their counterparts in state government. Held : 1. Neither Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, nor Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780, supports petitioners' contention that all of the federal officials sued in this case are absolutely immune from any liability for damages even if in the course of enforcing the relevant statutes they infringed respondent's constitutional rights and even if the violation was knowing and deliberate. Nor did either of those cases purport to abolish the liability of federal officers for actions manifestly beyond their line of duty; if they are accountable when they stray beyond the plain limits of their statutory authority, it would be incongruous to hold that they may nevertheless willfully or knowingly violate constitutional rights without fear of liability. Pp. 485-496. 2. Without congressional directions to the contrary, it would be untenable to draw a distinction for purposes of immunity law between suits brought against state officials under 42 U.S.C. § 1983, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90, and suits brought directly under the Constitution against federal officials, Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619. Federal officials should enjoy no greater zone of protection when they violate federal constitutional rules than do state officers. Pp. 496-504. 3. In a suit for damages arising from unconstitutional action, federal executive officials exercising discretion are entitled only to the qualified immunity specified in Scheuer v. Rhodes, supra, subject to those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business. While federal officials will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law, there is no substantial basis for holding that executive officers generally may with impunity discharge their duties in a way that is known to them to violate the Constitution or n a manner that they should know transgresses a clearly established constitutional rule. Pp. 504-508. 4. Although a qualified immunity from damages liability should be the general rule for executive officials charged with constitutional violations, there are some officials whose special functions require a full exemption from liability. Pp. 508-517. (a) In light of the safeguards provided in agency adjudication to assure that the hearing examiner or administrative law judge exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency, the risk of an unconstitutional act by one presiding at the agency hearing is clearly outweighed by the importance of preserving such independent judgment. Therefore, persons subject to these restraints and performing adjudicatory functions within a federal agency are entitled to absolute immunity from damages liability for their judicial acts. Pp. 508-514. (b) Agency officials who perform functions analogous to those of a prosecutor must make the decision to move forward with an administrative proceeding free from intimidation or harassment. Because the legal remedies already available to the defendant in such a proceeding provide sufficient checks on agency zeal, those officials who are responsible for the decision to initiate or continue a proceeding subject to agency adjudication are entitled to absolute immunity from damages liability for their parts in that decision. Pp. 515-516. (c) There is no substantial difference between the function of an agency attorney in presenting evidence in an agency hearing and the function of the prosecutor who brings evidence before a court, and since administrative agencies can act in the public interest only if they can adjudicate on the basis of a complete record, an agency attorney who arranges for the presentation of evidence on the record in the course of an adjudication is absolutely immune from suits based on the introduction of such evidence. Pp. 516-517. 5. The case is remanded for application of the foregoing principles to the claims against the particular petitioner-defendants involved. P. 517. 535 F.2d 688, vacated and remanded. Daniel M. Friedman, Washington, D. C., for petitioner. David C. Buxbaum, New York City, for respondents. Mr. Justice WHITE delivered the opinion of the Court. 1 This case concerns the personal immunity of federal officials in the Executive Branch from claims for damages arising from their violations of citizens' constitutional rights. Respondent1 filed suit against a number of officials in the Department of Agriculture claiming that they had instituted an investigation and an administrative proceeding against him in retaliation for his criticism of that agency. The District Court dismissed the action on the ground that the individual defendants, as federal officials, were entitled to absolute immunity for all discretionary acts within the scope of their authority. The Court of Appeals reversed, holding that the defendants were entitled only to the qualified immunity available to their counterparts in state government. Economou v. U. S. Dept. of Agriculture, 535 F.2d 688 (1976). Because of the importance of immunity doctrine to both the vindication of constitutional guarantees and the effective functioning of government, we granted certiorari. 429 U.S. 1089, 97 S.Ct. 1097, 51 L.Ed.2d 534. 2 * Respondent controls Arthur N. Economou and Co., Inc., which was at one time registered with the Department of Agriculture as a commodity futures commission merchant. Most of respondent's factual allegat ons in this lawsuit focus on an earlier administrative proceeding in which the Department of Agriculture sought to revoke or suspend the company's registration. On February 19, 1970, following an audit, the Department of Agriculture issued an administrative complaint alleging that respondent, while a registered merchant, had willfully failed to maintain the minimum financial requirements prescribed by the Department. After another audit, an amended complaint was issued on June 22, 1970. A hearing was held before the Chief Hearing Examiner of the Department, who filed a recommendation sustaining the administrative complaint. The Judicial Officer of the Department, to whom the Secretary had delegated his decisional authority in enforcement proceedings, affirmed the Chief Hearing Examiner's decision. On respondent's petition for review, the Court of Appeals for the Second Circuit vacated the order of the Judicial Officer. It reasoned that "the essential finding of willfulness . . . was made in a proceeding instituted without the customary warning letter, which the Judicial Officer conceded might well have resulted in prompt correction of the claimed insufficiencies." Economou v. U. S. Department of Agriculture, 494 F.2d 519 (1974). 3 While the administrative complaint was pending before the Judicial Officer, respondent filed this lawsuit in Federal District Court. Respondent sought initially to enjoin the progress of the administrative proceeding, but he was unsuccessful in that regard. On March 31, 1975, respondent filed a second amended complaint seeking damages. Named as defendants were the individuals who had served as Secretary and Assistant Secretary of Agriculture during the relevant events; the Judicial Officer and Chief Hearing Examiner; several officials in the Commodity Exchange Authority;2 the Agriculture Department attorney who had prosecuted the enforcement proceeding; and several of the auditors who had investigated respondent or were witnesses against respondent.3 4 The complaint stated that prior to the issuance of the administrative complaints respondent had been "sharply critical of the staff and operations of Defendants and carried on a vociferous campaign for the reform of Defendant Commodity Exchange Authority to obtain more effective regulation of commodity trading." App. 157-158. The complaint also stated that, some time prior to the issuance of the February 19 complaint, respondent and his company had ceased to engage in activities regulated by the defendants. The complaint charged that each of the administrative complaints had been issued without the notice or warning required by law; that the defendants had furnished the complaints "to interested persons and others without furnishing respondent's answers as well"; and that following the issuance of the amended complaint, the defendants had issued a "deceptive" press release that "falsely indicated to the public that [respondent's] financial resources had deteriorated, when Defendants knew that their statement was untrue and so acknowledge[d] previously that said assertion was untrue." Ibid.4 5 The complaint then presented 10 "causes of action," some of which purported to state claims for damages under the United States Constitution. For example, the first "cause of action" alleged that respondent had been denied due process of law because the defendants had instituted unautho ized proceedings against him without proper notice and with the knowledge that respondent was no longer subject to their regulatory jurisdiction. The third "cause of action" stated that by means of such actions "the Defendants discouraged and chilled the campaign of criticism [plaintiff] directed against them, and thereby deprived the [plaintiff] of [his] rights to free expression guaranteed by the First Amendment of the United States Constitution."5 6 The defendants moved to dismiss the complaint on the ground that "as to the individual defendants it is barred by the doctrine of official immunity . . . ." Id., at 163. The defendants relied on an affidavit submitted earlier in the litigation by the attorney who had prosecuted the original administrative complaint against respondent. He stated that the Secretary of Agriculture had had no involvement with the case and that each of the other named defendants had acted "within the course of his official duties." Id., at 42-149. 7 The District Court, apparently relying on the plurality opinion in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), held that the individual defendants would be entitled to immunity if they could show that "their alleged unconstitutional acts were within the outer perimeter of their authority and discretionary." App. to Pet. for Cert. 25a. After examining the nature of the acts alleged in the complaint, the District Court concluded: "Since the individual defendants have shown that their alleged unconstitutional acts were both within the scope of their authority and discretionary, we dismiss the second amended complaint as to them."6 Id., at 28a. 8 The Court of Appeals for the Second Circuit reversed the District Court's judgment of dismissal with respect to the individual defendants. Economou v. U. S. Department of Agriculture, 535 F.2d 688 (1976). The Court of Appeals reasoned that Barr v. Matteo, supra, did not "represen[t] the last word in this evolving area," 535 F.2d, at 691, because principles governing the immunity of officials of the Executive Branch had been elucidated in later decisions dealing with constitutional claims against state officials. E. g., Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). These opinions were understood to establish that officials of the Executive Branch exercising discretionary functions did not need the protection of an absolute immunity from suit, but only a qualified immunity based on good faith and reasonable grounds. The Court of Appeals rejected a proposed distinction between suits against state officials sued pursuant to 42 U.S.C. § 1983 and suits against federal officials under the Constitution, noting that "[o]ther circuits have also concluded that the Supreme Court's development of official immunity doctrine in § 1983 suits against state offic als applies with equal force to federal officers sued on a cause of action derived directly from the Constitution, since both types of suits serve the same function of protecting citizens against violations of their constitutional rights by government officials." 535 F.2d, at 695 n. 7. The Court of Appeals recognized that under Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), state prosecutors were entitled to absolute immunity from § 1983 damages liability but reasoned that Agriculture Department officials performing analogous functions did not require such an immunity because their cases turned more on documentary proof than on the veracity of witnesses and because their work did not generally involve the same constraints of time and information present in criminal cases. 535 F.2d, at 696 n. 8. The court concluded that all of the defendants were "adequately protected by permitting them to avail themselves of the defense of qualified 'good faith, reasonable grounds' immunity of the type approved by the Supreme Court in Scheuer and Wood." Id., at 696. After noting that summary judgment would be available to the defendants if there were no genuine factual issues for trial, the Court of Appeals remanded the case for further proceedings. II 9 The single submission by the United States on behalf of petitioners is that all of the federal officials sued in this case are absolutely immune from any liability for damages even if in the course of enforcing the relevant statutes they infringed respondent's constitutional rights and even if the violation was knowing and deliberate. Although the position is earnestly and ably presented by the United States, we are quite sure that it is unsound and consequently reject it. 10 In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the victim of an arrest and search claimed to be violative of the Fourth Amendment brought suit for damages against the responsible federal agents. Repeating the declaration in Marbury v. Madison, 1 Cranch 137, 163, 2 L.Ed. 60 (1803), that " '[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws,' " 403 U.S., at 397, 91 S.Ct., at 2005, and stating that "[h]istorically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty," id., at 395, 91 S.Ct., at 2004, we rejected the claim that the plaintiff's remedy lay only in the state court under state law, with the Fourth Amendment operating merely to nullify a defense of federal authorization. We held that a violation of the Fourth Amendment by federal agents gives rise to a cause of action for damages consequent upon the unconstitutional conduct. Ibid.7 11 Bivens established that compensable injury to a constitutionally protected interest could be vindicated by a suit for damages invoking the general federal-question jurisdiction of the federal courts,8 but we reserved the question whether the agents involved were "immune from liability by virtue of their official position," and remanded the case for that determination. On remand the Court of Appeals for the Second Circuit, as has every other Court of Appeals that has faced the question,9 held that the agents were not absolutely immune and that the public interest would be sufficiently protected by according the agents and their superiors a qualified immunity. 12 In our view, the Courts of Appeals have reached sound results. We cannot agree with the United States that our prior cases are to the contrary and support the rule it now urges us to embrace. Indeed, as we see it, the Government's submission is contrary to the course of decision in this Court from the very early days of the Republic. 13 The Government places principal reliance on Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). In that case, the acting director of an agency had been sued for malicious defamation by two employees whose suspension for misconduct he had announced in a press release. The defendant claimed an absolute or qualified privilege, but the trial court rejected both and the jury returned a verdict for plaintiff. 14 In the 1958 Term,10 the Court granted certiorari in Barr "to determine whether in the circumstances of this case petitioner's claim of absolute privilege should have stood as a bar to maintenance of the suit despite the allegations of malice made in the complaint." Id., at 569, 79 S.Ct., at 1338. The Court was divided in reversing the judgment of the Court of Appeals, and there was no opinion for the Court.11 The plurality opinion inquired whether the conduct complained of was among those "matters committed by law to [the official's] control" and concluded, after an analysis of the specific circumstances, that the press release was within the "outer perimeter of [his] line of duty" and was "an appropriate exercise of the discretion which an officer of that rank must possess if the public service is to function effectively." Id., at 575, 79 S.Ct., at 1341. The plurality then held that under Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896), the act was privileged and that the officer could not be held liable for the tort of defamation despite the allegations of malice.12 Barr clearly held that a false and damaging publication, the issuance of which was otherwise within the official's authority, was not itself actionable and would not become so by being issued maliciously. The Court did not choose to discuss whether the director's privilege would be defeated by showing that he was without reasonable grounds for believing his release was true or that he knew that it was false, although the issue was in the case as it came from the Court of Appeals.13 15 Barr does not control this case. It did not address the liability of the acting director had his conduct not been within the outer limits of his duties, but from the care with which the Court inquired into the scope of his authority, it may be inferred that had the release been unauthorized, and surely if the issuance of press releases had been expressly forbidden by statute, the claim of absolute immunity would not have been upheld. The inference is supported by the fact that Mr. Justice STEWART, although agreeing with the principles announced by Mr. Justice Harlan, dissented and would have rejected the immunity claim because the press release, in his view, was not action in the line of duty. 360 U.S., at 592, 79 S.Ct., at 1350. It is apparent also that a quite different question would have been presented had the officer ignored an express statutory or constitutional limitation on his authority. 16 Barr did not, therefore, purport to depart from the general rule, which long prevailed, that a federal official may not with impunity ignore the limitations which the controlling law has placed on his powers. The immunity of federal executive officials began as a means of protecting them in the execution of their federal statutory duties from criminal or civil actions based on state law. See Osborn v. Bank of United States, 9 Wheat. 738, 865-866, 6 L.Ed. 204 (1824).14 A federal official who acted outside of his federal statutory authority would be held strictly liable for his trespassory acts. For example, Little v. Barreme, 2 Cranch 170, 2 L.Ed. 243 (1804), held the commander of an American warship liable in damages for the seizure of a Danish cargo ship on the high seas. Congress had directed the President to intercept any vessels reasonably suspected of being en route to a French port, but the President had authorized the seizure of suspected vessels whether going to or from French ports, and the Danish vessel seized was en route from a forbidden destination. The Court, speaking through Mr. Chief Justice Marshall, held that the President's instructions could not "change the nature of the trans ction, or legalize an act which, without those instructions, would have been a plain trespass." Id., at 179. Although there was probable cause to believe that the ship was engaged in traffic with the French, the seizure at issue was not among that class of seizures that the Executive had been authorized by statute to effect. See also Wise v. Withers, 3 Cranch 331, 2 L.Ed. 457 (1806). 17 Bates v. Clark, 95 U.S. 204, 24 L.Ed. 471 (1877), was a similar case. The relevant statute directed seizures of alcoholic beverages in Indian country, but the seizure at issue, which was made upon the orders of a superior, was not made in Indian country. The "objection fatal to all this class of defenses is that in that locality [the seizing officers] were utterly without any authority in the premises" and hence were answerable in damages. Id., at 209. 18 As these cases demonstrate, a federal official was protected for action tortious under state law only if his acts were authorized by controlling federal law. "To make out his defence he must show that his authority was sufficient in law to protect him." Cunningham v. Macon & Brunswick R. Co., 109 U.S. 446, 452, 3 S.Ct. 292, 297, 27 L.Ed. 992 (1883); Belknap v. Schild, 161 U.S. 10, 19, 16 S.Ct. 443, 446, 40 L.Ed. 599 (1896). Since an unconstitutional act, even if authorized by statute, was viewed as not authorized in contemplation of law, there could be no immunity defense.15 SeeunitED STATES v. leE, 106 u.s. 196, 218-223, 1 S.CT. 240, 258-263, 27 L.Ed. 171 (1882); Virginia Coupon Cases, 114 U.S. 269, 285-292, 5 S.Ct. 903, 911-915, 29 L.Ed. 185 (1885).16 19 In both Barreme and Bates, the officers did not merely mistakenly conclude that the circumstances warranted a particular seizure, but failed to observe the limitations on their authority by making seizures not within the category or type of seizures they were authorized to make. Kendall v. Stokes, 3 How. 87, 11 L.Ed. 506 (1845), addressed a different situation. The case involved a suit against the Postmaster General for erroneously suspending payments to a creditor of the Post Office. Examining and, if necessary, suspending payments to creditors were among the Postmaster's normal duties, and it appeared that he had simply made a mistake in the exercise of the discretion conferred upon im. He was held not liable in damages since "a public officer, acting to the best of his judgment and from a sense of duty, in a matter of account with an individual [is not] liable in an action for an error of judgment." Id., at 97-98. Having "the right to examine into this account" and the right to suspend it in the proper circumstances, id., at 98, the officer was not liable in damages if he fell into error, provided, however, that he acted "from a sense of public duty and without malice." Id., at 99. 20 Four years later, in a case involving military discipline, the Court issued a similar ruling, exculpating the defendant officer because of the failure to prove that he had exceeded his jurisdiction or had exercised it in a malicious or willfully erroneous manner: "[I]t is not enough to show he committed an error of judgment, but it must have been a malicious and wilful error." Wilkes v. Dinsman, 7 How. 89, 131, 12 L.Ed. 618 (1849). 21 In Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896), on which the Government relies, the principal issue was whether the malicious motive of an officer would render him liable in damages for injury inflicted by his official act that otherwise was within the scope of his authority. The Postmaster General was sued for circulating among the postmasters a notice that assertedly injured the reputation of the plaintiff and interfered with his contractual relationships. The Court first inquired as to the Postmaster General's authority to issue the notice. In doing so, it "recognize[d] a distinction between action taken by the head of a Department in reference to matters which are manifestly or palpably beyond his authority, and action having more or less connection with the general matters committed by law to his control or supervision." Id., at 498, 16 S.Ct., at 637. Concluding that the circular issued by the Postmaster General "was not unauthorized by law, nor beyond the scope of his official duties," the Court then addressed the major question in the case—whether the action could be "maintained because of the allegation that what the officer did was done maliciously?" Id., at 493, 16 S.Ct., at 635. Its holding was that the head of a department could not be "held liable to a civil suit for damages on account of official communications made by him pursuant to an act of Congress, and in respect of matters within his authority," however improper his motives might have been. Id., at 498, 16 S.Ct., at 637. Because the Postmaster General in issuing the circular in question "did not exceed his authority, nor pass the line of his duty," id., at 499, 16 S.Ct., at 637, it was irrelevant that he might have acted maliciously.17 22 Spalding made clear that a malicious intent will not subject a public officer to liability for performing his authorized duties as to which he would otherwise not be subject to damages liability.18 But Spalding did not involve conduct manifestly or otherwise beyond the authority of the official, nor did it involve a mistake of either law or fact in construing or applying the statute.19 It did not purport to immunize officials who ignore limitations on their authority imposed by law. Although the "manifestly or palpably" standard for examining the reach of official power may have been suggested as a gloss on Barreme, Bates, Kendall, and Wilkes, none of those cases was overruled.20 It is also evident that Spalding presented no claim that the officer was liable in damages because he had acted in violation of a limitation placed upon his conduct by the United States Constitution. If any inference is to be drawn from Spalding in any of these respects, it is that the official would not be excused from liability if he failed to observe obvious statutory or constitutional limitations on his powers or if his conduct was a manifestly erroneous application of the statute. 23 Insofar as cases in this Court dealing with the immunity or privilege of federal officers are concerned,21 this is where the matter stood untilBarr v. Matteo. there, as we have set out above, immunity was granted even though the publication contained a factual error, which was not the case inspalding. the plurality Opinion and judgment in barr also appear— salthough without any discussion of the matter—to have extended absolute immunity to an officer who was authorized to issue press releases, who was assumed to know that the press release he issued was false and who therefore was deliberately misusing his authority. Accepting this extension of immunity with respect to state tort claims, however, we are confident that Barr did not purpo t to protect an official who has not only committed a wrong under local law, but also violated those fundamental principles of fairness embodied in the Constitution.22 Whatever level of protection from state interference is appropriate for federal officials executing their duties under federal law, it cannot be doubted that these officials, even when acting pursuant to congressional authorization, are subject to the restraints imposed by the Federal Constitution. 24 The liability of officials who have exceeded constitutional limits was not confronted in either Barr or Spalding. Neither of those cases supports the Government's position. Beyond that, however, neither case purported to abolish the liability of federal officers for actions manifestly beyond their line of duty; and if they are accountable when they stray beyond the plain limits of their statutory authority, it would be incongruous to hold that they may nevertheless willfully or knowingly violate constitutional rights without fear of liability. 25 Although it is true that the Court has not dealt with this issue with respect to federal officers,23 we have several times addressed the immunity of state officers when sued under 42 U.S.C. § 1983 for alleged violations of constitutional rights. These decisions are instructive for present purposes. III 26 Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), decided that § 1983 was not intended to abrogate the immunity of state judges which existed under the common law and which the Court had held applicable to federal judges in Bradley v. Fisher, 13 Wall. 335 (1872). Pierson also presented the issue "whether immunity was available to that segment of the executive branch of a state government that is . . . most frequently exposed to situations which can give rise to claims under § 1983 the local police officer." Scheuer v. Rhodes, 416 U.S., at 244-245, 94 S.Ct., at 1690. Relying on the common law, we held that police officers were entitled to a defense of "good faith and probable cause," even though an arrest might subsequently be proved to be unconstitutional. We observed, however, that "[t]he common law has never granted police officers an absolute and unqualified immunity, and the officers in this case do not claim that they are entitled to one." 386 U.S., at 555, 87 S.Ct., at 1218. 27 In Scheuer v. Rhodes, supra, the issue was whether "higher officers of the executive branch" of state governments were immune from liability under § 1983 for violations of constitutionally protected rights. 416 U.S., at 246, 94 S.Ct., at 1691. There, the Governor of a State, the senior and subordinate officers of the state National Guard, and a state university president had been sued on the allegation that they had suppressed a civil disturbance in an unconstitutional manner. We explained that the doctrine of official immunity from § 1983 liability, although not constitutionally grounded and essentially a matter of statutory construction, was based on two mutually dependent rationales: 28 "(1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good." 416 U.S., at 240, 94 S.Ct., at 1688. 29 The opinion also recognized that executive branch officers must often act swiftly and on the basis of factual information supplied by others, constraints which become even more acute in the "atmosphere of confusion, ambiguity, and swiftly moving events" created by a civil disturbance. Id., at 246-247, 94 S.Ct., at 1691. Although quoting at length from Barr v. Matteo,24 we did not believe that there was a need for absolute immunity from § 1983 liability for these high-ranking state officials. Rather the considerations discussed above indicated: 30 "[I]n varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct." 416 U.S., at 247-248, 94 S.Ct., at 1692. 31 Subsequent decisions have applied the Scheuer standard in other contexts. In Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), school administrators were held entitled to claim a similar qualified immunity. A school board member would lose his immunity from a § 1983 suit only if "he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student." 420 U.S., at 322, 95 S.Ct., at 1001. In O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), we applied the same standard to the superintendent of a state hospital. In Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), we held that prison administrators would be adequately protected by the qualified immunity outlined in Scheuer and Wood. We emphasized, however, that, at least in the absence of some showing of malice, an official would not be held liable in damages under § 1983 unless the constitutional right he was alleged to have violated was "clearly established" at the time of the violation. 32 None of these decisions with respect to state officials furnishes any support for the submission of the United States that federal officials are absolutely immune from liability for their constitutional transgressions. On the contrary, with impressive unanimity, the Federal Courts of Appeals have concluded that federal officials should receive no greater degree of protection from constitutional claims than their counterparts in state government.25 Subsequent to Scheuer, the Court of Appeals for the Fourth Circuit concluded that "[a]lthough Scheuer involved a suit against state executive officers, the court's discussion of the qualified nature of executive immunity would appear to be equally applicable to federal executive officers." States Marine Lines v. Shultz, 498 F.2d 1146, 1159 (1974). In the view of the Court of Appeals for the Second Circuit, 33 "it would be 'incongruous and confusing, to say the least' to develop different standards of immunity for state officials sued under § 1983 and federal officers sued on similar grounds under causes of action founded directly on the Constitution." Economou v. U. S. Dept. of Agriculture, 535 F.2d, at 695, n. 7, quoting Bivens v. Six Unknown Fed. Narcotics Agents, 456 F.2d 1339, 1346-1347 (C.A.2 1972) (on remand).26 34 The Court of Appeals for the Ninth Circuit has reasoned: 35 "[Defendants] offer no significant reason for distinguishing, as far as the immunity doctrine is concerned, between litigation under § 1983 against state officers and actions against federal officers alleging violation of constitutional rights under the general federal question statute. In contrast, the practical advantage of having just one federal immunity doctrine for suits arising under federal law is self-evident. Further, the rights at stake in a suit brought directly under the Bill of Rights are no less worthy of full protection than the constitutional and statutory rights protected by § 1983." Mark v. Groff, 521 F.2d 1376, 1380 (1975). 36 Other courts have reached similar conclusions. E. g., Apton v. Wilson, 165 U.S.App.D.C. 22, 506 F.2d 83 (1974); Brubaker v. King, 505 F.2d 534 (C.A.7 1974); see Weir v. Muller, 527 F.2d 872 (C.A.5 1976); Paton v. La Prade, 524 F.2d 862 (C.A.3 1975); Jones v. United States, 536 F.2d 269 (C.A.8 1976); G. M. Leasing Corp. v. United States, 560 F.2d 1011 (C.A.10 1977).27 37 We agree with the perception of these courts that, in the absence of congressional direction to the contrary, there is no basis for according to federal officials a higher degree of immunity from liability when sued for a constitutional infringement as authorized by Bivens than is accorded state officials when sued for the identical violation under § 1983. The constitutional injuries made actionable by § 1983 are of no greater magnitude than those for which federal officials may be responsible. The pressures and uncertainties facing decisionmakers in state government are little if at all different from those affecting federal officials.28 We see no sense in holding a state governor liable but immunizing the head of a federal department; in holding the administrator of a federal hospital immune where the superintendent of a state hospital would be liable; in protecting the warden of a federal prison where the warden of a state prison would be vulnerable; or in distinguishing between state and federal police participating in the same investigation. Surely, federal officials should enjoy no greater zone of protection when they violate federal constitutional rules than do state officers. 38 The Government argues that the cases involving state officials are distinguishable because they reflect the need to preserve the effectiveness of the right of action authorized by § 1983. But as we discuss more fully below, the cause of action recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), would similarly be "drained of meaning" if federal officials were entitled to absolute immunity for their constitutional transgressions. Cf. Scheuer v. Rhodes, 416 U.S., at 248, 94 S.Ct., at 1692. 39 Moreover, the Government's analysis would place undue emphasis on the congressional origins of the cause of action in determining the level of immunity. It has been observed more than once that the law of privilege as a defense to damages actions against officers of Government has "in large part been of judicial making." Barr v. Matteo, 360 U.S., at 569, 79 S.Ct., at 1338; Doe v. McMillan, 412 U.S. 306, 318, 93 S.Ct. 2018, 2027, 36 L.Ed.2d 912 (1973). Section 1 of the Civi Rights Act of 187129—the predecessor of § 1983—said nothing about immunity for state officials. It mandated that any person who under color of state law subjected another to the deprivation of his constitutional rights would be liable to the injured party in an action at law.30 This Court nevertheless ascertained and announced what it deemed to be the appropriate type of immunity from § 1983 liability in a variety of contexts. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Scheuer v. Rhodes, supra. The federal courts are equally competent to determine the appropriate level of immunity where the suit is a direct claim under the Federal Constitution against a federal officer. 40 The presence or absence of congressional authorization for suits against federal officials is, of course, relevant to the question whether to infer a right of action for damages for a particular violation of the Constitution. In Bivens, the Court noted the "absence of affirmative action by Congress" and therefore looked for "special factors counselling hesitation." 403 U.S., at 396, 91 S.Ct., at 2004. Absent congressional authorization, a court may also be impelled to think more carefully about whether the type of injury sustained by the plaintiff is normally compensable in damages, 403 U.S., at 397, 91 S.Ct., at 2005, and whether the courts are qualified to handle the types of questions raised by the plaintiff's claim, see id., at 409, 91 S.Ct., at 2011 (Harlan, J., concurring in judgment). 41 But once this analysis is completed, there is no reason to return again to the absence of congressional authorization in resolving the question of immunity. Having determined that the plaintiff is entitled to a remedy in damages for a constitutional violation, the court then must address how best to reconcile the plaintiff's right to compensation with the need to protect the decisionmaking processes of an executive department. Since our decision in Scheuer was intended to guide the federal courts in resolving this tension in the myriad factual situations in which it might arise, we see no reason why it should not supply the governing principles for resolving this dilemma in the case of federal officials. The Court's opinion in Scheuer relied on precedents dealing with federal as well as state officials, analyzed the issue of executive immunity in terms of general policy considerations, and stated its conclusion, quoted supra, in the same universal terms. The analysis presented in that case cannot be limited to actions against state officials. 42 Accordingly, without congressional directions to the contrary, we deem it untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials. The § 1983 action was provided to vindicate federal constitutional rights. That Congress decided, after the passage of the Fourteenth Amendment, to enact legislation specifically requiring state officials to respond in federal court for their failures to observe the constitutional limitations on their powers is hardly a reason for excusing their federal counterparts for the identical constitutional transgressions. To create a system in which the Bill of Rights monitors more closely the conduct of state officials than it does that of federal officials is to stand the constitutional design on its head. IV 43 As we have said, the decision in Bivens established that a citizen suffering a compensable injury to a constitutionally protected interest could invoke the general federal-question jurisdiction of the district courts to obtain an award of monetary damages against the responsible federal official. As Mr. Justice Harlan, concurring in the judgment, pointed out, the action for damages recognized in Bivens could be a vital means of providing redress for persons whose constitutional rights have been violated. The barrier of sovereign immunity is frequently impenetrable.31 Injunctive or declaratory relief is useless to a person who has already been injured. "For people in Bivens' shoes, it is damages or nothing." 403 U.S., at 410, 91 S.Ct., at 2012. 44 Our opinion in Bivens put aside the immunity question; but we could not have contemplated that immunity would be absolute.32 If, as the Government argues, all officials exercising discretion were exempt from personal liability, a suit under the Constitution could provide no redress to the injured citizen, nor would it in any degree deter federal officials from committing constitutional wrongs. Moreover, no compensation would be available from the Government, for the Tort Claims Act prohibits recovery for injuries stemming from discretionary acts, even when that discretion has been abused.33 45 The extension of absolute immunity from damages liability to all federal executive officials would seriously erode the protection provided by basic constitutional guarantees. The broad authority possessed by these officials enables them to direct their subordinates to undertake a wide range of projects—including some which may infringe such important personal interests as liberty, property, and free speech. It makes little sense to hold that a Government agent is liable for warrantless and forcible entry into a citizen's house in pursuit of evidence, but that an official of higher rank who actually orders such a burglary is immune simply because of his greater authority. Indeed, the greater power of such officials affords a greater potential for a regime of lawless conduct. Extensive Government operations offer opportunities for unconstitutional action on a massive scale. In situations of abuse, an action for damages against the responsible official can be an important means of vindicating constitutional guarantees. 46 Our system of jurisprudence rests on the assumption that all individuals, whatever their position in government, are subject to federal law: 47 "No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law, and are bound to obey it." United States v. Lee, 106 U.S., at 220, 1 S.Ct., at 261. 48 See also Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803); Scheuer v. Rhodes, 416 U.S., at 239-240, 94 S.Ct., at 1687-1688. In light of this principle, federal officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope. 49 This is not to say that considerations of public policy fail to support a limited immunity for federal executive officials. We consider here, as we did in Scheuer, the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority. Yet Scheuer and other cases have recognized that it is not unfair to hold liable the official who knows or should know he is acting outside the law, and that insisting on an awareness of clearly established constitutional limits will not unduly interfere with the exercise of official judgment. We therefore hold that, in a suit for damages arising from unconstitutional action, federal executive officials exercising discretion are entitled only to the qualified immunity specified in Scheuer, subject to those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business.34 50 The Scheuer principle of only qualified immunity for constitutional violations is consistent with Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896); and Kendall v. Stokes, 3 How. 87, 11 L.Ed. 506 (1847). Federal officials will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law. But we see no substantial basis for holding, as the United States would have us do, that executive officers generally may with impunity discharge their duties in a way that is known to them to violate the United States Constitution or in a manner that they should know transgresses a clearly established constitutional rule. The principle should prove as workable in suits against federal officials as it has in the context of suits against state officials. Insubstantial lawsuits can be quickly terminated by federal courts alert to the possibilities of artful pleading. Unless the complaint states a compensable claim for relief under the Federal Constitution, it should not survive a motion to dismiss. Moreover, the Court recognized in Scheuer that damages suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgment based on the defense of immunity.35 See 416 U.S., at 250, 94 S.Ct., at 1693. In responding to such a motion, plaintiffs may not play dog in the manger; and firm application of the Federal Rules of Civil Procedure will ensure that federal officials are not harassed by frivolous lawsuits. V 51 Although a qualified immunity from damages liability should be the general rule for executive officials charged with constitutional violations, our decisions recognize that there are some officials whose special functions require a full exemption from liability. E. g., Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). In each case, we have undertaken "a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it." Id., at 421, 96 S.Ct., at 990. 52 In Bradley v. Fisher, the Court analyzed the need for absolute immunity to protect judges from lawsuits claiming that their decisions had been tainted by improper motives. The Court began by noting that the principle of immunity for acts done by judges "in the exercise of their judicial functions" had been "the settled doctrine of the English courts for many centuries, and has never been denied, that we are aware of, in the courts of this country." 13 Wall., at 347. The Court explained that the value of this rule was proved by experience. Judges were often called to decide "[c]ontroversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings." Id., at 348. Such adjudications invariably produced at least one losing party, who w uld "accep[t] anything but the soundness of the decision in explanation of the action of the judge." Ibid. "Just in proportion to the strength of his convictions of the correctness of his own view of the case is he apt to complain of the judgment against him, and from complaints of the judgment to pass to the ascription of improper motives to the judge." Ibid. If a civil action could be maintained against a judge by virtue of an allegation of malice, judges would lose "that independence without which no judiciary can either be respectable or useful." Id., at 347. Thus, judges were held to be immune from civil suit "for malice or corruption in their action whilst exercising their judicial functions within the general scope of their jurisdiction." Id., at 354.36 53 The principle of Bradley was extended to federal prosecutors through the summary affirmance in Yaselli v. Goff, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927), aff'g 12 F.2d 396 (C.A.2 1926). The Court of Appeals in that case discussed in detail the common-law precedents extending absolute immunity to parties participating in the judicial process: judges, grand jurors, petit jurors, advocates, and witnesses. Grand jurors had received absolute immunity " 'lest they should be biased with the fear of being harassed by a vicious suit for acting according to their consciences (the danger of which might easily be insinuated where powerful men are warmly engaged in a cause and thoroughly prepossessed of the justice of the side which they espouse).' " Id., at 403, quoting 1 W. Hawkins, Pleas of the Crown 349 (6th ed. 1787). The court then reasoned that " '[t]he public prosecutor, in deciding whether a particular prosecution shall be instituted or followed up, performs much the same function as a grand jury.' " 12 F.2d, at 404, quoting Smith v. Parman, 101 Kan. 115, 116, 165 P. 663 (1917). The court held the prosecutor in that case immune from suit for malicious prosecution and this Court, citing Bradley v. Fisher, supra, affirmed. 54 We recently reaffirmed the holding of Yaselli v. Goff in Imbler v. Pachtman, supra, a suit against a state prosecutor under § 1983. The Court's examination of the leading precedents led to the conclusion that "[t]he common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties." 424 U.S., at 422-423, 96 S.Ct., at 991. The prosecutor's role in the criminal justice system was likely to provoke "with some frequency" retaliatory suits by angry defendants. Id., at 425, 96 S.Ct., at 992. A qualified immunity might have an adverse effect on the functioning of the criminal justice system, not only by discouraging the initiation of prosecutions, seeid., at 426 n. 24, 96 S.Ct., at 993, but also by affecting the prosecutor's conduct of the trial. 55 "Attaining the system's goal of accurately determining guilt or innocence requires that both the prosecution and the defense have wide discretion in the conduct of the trial and the presentation of evidence. . . . If prosecutors were hampered in exercising their judgment as to the use of . . . witnesses by concern about resulting personal liability, the triers of fact in criminal cases often would be denied relevant evidence." Id., at 426, 96 S.Ct., at 993. 56 In light of these and other practical considerations, the Court held that the defendant in that case was entitled to absolute immunity with respect to his activities as an advocate, "activities [which] were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force." Id., at 430, 96 S.Ct., at 995.37 57 Despite these precedents, the Court of Appeals concluded that all of the defendants in this case—including the Chief Hearing Examiner, Judicial Officer, and prosecuting attorney—were entitled to only a qualified immunity. The Court of Appeals reasoned that officials within the Executive Branch generally have more circumscribed discretion and pointed out that, unlike a judge, officials of the Executive Branch would face no conflict of interest if their legal representation was provided by the Executive Branch. The Court of Appeals recognized that "some of the Agriculture Department officials may be analogized to criminal prosecutors, in that they initiated the proceedings against [respondent], and presented evidence therein," 535 F.2d, at 696 n. 8, but found that attorneys in administrative proceedings did not face the same "serious constraints of time and even information" which this Court has found to be present frequently in criminal cases. See Imbler v. Pachtman, 424 U.S., at 425, 96 S.Ct., at 992. 58 We think that the Court of Appeals placed undue emphasis on the fact that the officials sued here are—from an administrative perspective—employees of the Executive Branch. Judges have absolute immunity not because of their particular location within the Government but because of the special nature of their responsibilities. This point is underlined by the fact that prosecutors—themselves members of the Executive Branch—are also absolutely immune. "It is the functional comparability of their judgments to those of the judge that has resulted in both grand jurors and prosecutors being referred to as 'quasi-judicial' officers, and their immunities being termed 'quasi-judicial' as well." Id., at 423 n. 20, 96 S.Ct., at 991. 59 The cluster of immunities protecting the various participants in judge-supervised trials stems from the characteristics of the judicial process rather than its location. As the Bradley Court suggested, 13 Wall., at 348-349, controversies sufficiently intense to erupt in litigation are not easily capped by a judicial decree. The loser in one forum will frequently seek another, charging the participants in the first with unconstitutional animus. See Pierson v. Ray, 386 U.S., at 554, 87 S.Ct., at 1217. Absolute immunity is thus necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation. 60 At the same time, the safeguards built into the judicial process tend to reduce the need for private damages actions as a means of controlling unconstitutional conduct. The insulation of the judge from political influence, the importance of precedent in resolving controversies, the adversary nature of the process, and the correctability of error on appeal are just a few of the many checks on malicious action by judges.38 Advocates are restrained not only by their professional obligations, but by the knowledge that their assertions will be contested by their adversaries in open court. Jurors are carefully screened to remove all possibility of bias. Witnesses are, of course, subject to the rigors of cross-examination and he penalty of perjury. Because these features of the judicial process tend to enhance the reliability of information and the impartiality of the decisionmaking process, there is a less pressing need for individual suits to correct constitutional error. 61 We think that adjudication within a federal administrative agency shares enough of the characteristics of the judicial process that those who participate in such adjudication should also be immune from suits for damages. The conflicts which federal hearing examiners seek to resolve are every bit as fractious as those which come to court. As the Bradley opinion points out: "When the controversy involves questions affecting large amounts of property or relates to a matter of general public concern, or touches the interests of numerous parties, the disappointment occasioned by an adverse decision, often finds vent in imputations of [malice]." 13 Wall., at 348, 20 L.Ed. 646. Moreover, federal administrative law requires that agency adjudication contain many of the same safeguards as are available in the judicial process. The proceedings are adversary in nature. See 5 U.S.C. § 555(b) (1976 ed.). They are conducted before a trier of fact insulated from political influence. See § 554(d). A party is entitled to present his case by oral or documentary evidence, § 556(d), and the transcript of testimony and exhibits together with the pleadings constitute the exclusive record for decision. § 556(e). The parties are entitled to know the findings and conclusions on all of the issues of fact, law, or discretion presented on the record. § 557(c). 62 There can be little doubt that the role of the modern federal hearing examiner or administrative law judge within this framework is "functionally comparable" to that of a judge. His powers are often, if not generally, comparable to those of a trial judge: He may issue subpoenas, rule on proffers of evidence, regulate the course of the hearing, and make or recommend decisions. See § 556(c). More importantly, the process of agency adjudication is currently structured so as to assure that the hearing examiner exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency. Prior to the Administrative Procedure Act, there was considerable concern that persons hearing administrative cases at the trial level could not exercise independent judgment because they were required to perform prosecutorial and investigative functions as well as their judicial work, see, e. g., Wong Yang Sung v. McGrath, 339 U.S. 33, 36-41, 70 S.Ct. 445, 447-450, 94 L.Ed. 616 (1950), and because they were often subordinate to executive officials within the agency, see Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128, 131, 73 S.Ct. 570, 572, 97 L.Ed. 872 (1953). Since the securing of fair and competent hearing personnel was viewed as "the heart of formal administrative adjudication," Final Report of the Attorney General's Committee on Administrative Procedure 46 (1941), the Administrative Procedure Act contains a number of provisions designed to guarantee the independence of hearing examiners. They may not perform duties inconsistent with their duties as hearing examiners. 5 U.S.C. § 3105 (1976 ed.). When conducting a hearing under § 5 of the APA, 5 U.S.C. § 554 (1976 ed.), a hearing examiner is not responsible to, or subject to the supervision or direction of, employees or agents engaged in the performance of investigative or prosecution functions for the agency. 5 U.S.C. § 554(d)(2) (1976 ed.). Nor may a hearing examiner consult any person or party, including other agency officials, concerning a fact at issue in the hearing, unless on notice and opportunity for all parties to participate. § 554(d)(1). Hearing examiners must be assigned to cases in rotation so far as is practicable. § 3105. They may be removed only for good cause establishe and determined by the Civil Service Commission after a hearing on the record. § 7521. Their pay is also controlled by the Civil Service Commission. 63 In light of these safeguards, we think that the risk of an unconstitutional act by one presiding at an agency hearing is clearly outweighed by the importance of preserving the independent judgment of these men and women. We therefore hold that persons subject to these restraints and performing adjudicatory functions within a federal agency are entitled to absolute immunity from damages liability for their judicial acts. Those who complain of error in such proceedings must seek agency or judicial review. 64 We also believe that agency officials performing certain functions analogous to those of a prosecutor should be able to claim absolute immunity with respect to such acts. The decision to initiate administrative proceedings against an individual or corporation is very much like the prosecutor's decision to initiate or move forward with a criminal prosecution. An agency official, like a prosecutor, may have broad discretion in deciding whether a proceeding should be brought and what sanctions should be sought. The Commodity Futures Trading Commission, for example, may initiate proceedings whenever it has "reason to believe" that any person "is violating or has violated any of the provisions of this chapter or of the rules, regulations, or orders of the Commission." 7 U.S.C. § 9 (1976 ed.). A range of sanctions is open to it. Ibid. 65 The discretion which executive officials exercise with respect to the initiation of administrative proceedings might be distorted if their immunity from damages arising from that decision was less than complete. Cf. Imbler v. Pachtman, 424 U.S., at 426 n. 24, 96 S.Ct., at 993 n. 24. While there is not likely to be anyone willing and legally able to seek damages from the officials if they do not authorize the administrative proceeding, cf. id., at 438, 96 S.Ct., at 998 (WHITE, J., concurring in judgment), there is a serious danger that the decision to authorize proceedings will provoke a retaliatory response. An individual targeted by an administrative proceeding will react angrily and may seek vengeance in the courts. A corporation will muster all of its financial and legal resources in an effort to prevent administrative sanctions. "When millions may turn on regulatory decisions, there is a strong incentive to counter-attack."39 66 The defendant in an enforcement proceeding has ample opportunity to challenge the legality of the proceeding. An administrator's decision to proceed with a case is subject to scrutiny in the proceeding itself. The respondent may present his evidence to an impartial trier of fact and obtain an independent judgment as to whether the prosecution is justified. His claims that the proceeding is unconstitutional may also be heard by the courts. Indeed, respondent in this case was able to quash the administrative order entered against him by means of judicial review. See Economou v. U. S. Department of Agriculture, 494 F.2d 519 (C.A.2 1974). 67 We believe that agency officials must make the decision to move forward with an administrative proceeding free from intimidation or harassment. Because the legal remedies already available to the defendant in such a proceeding provide sufficient checks on agency zeal, we hold that those officials who are responsible for the decision to initiate or continue a proceeding subject to agency adjudication are entitled to absolute immunity from damages liability for their parts in that decision. 68 We turn finally to the role of an agency attorney in conducting a trial and presenting evidence on the record to the trier of fact. We can see no substantial difference between the function of the agency attorney in pres nting evidence in an agency hearing and the function of the prosecutor who brings evidence before a court.40 In either case, the evidence will be subject to attack through cross-examination, rebuttal, or reinterpretation by opposing counsel. Evidence which is false or unpersuasive should be rejected upon analysis by an impartial trier of fact. If agency attorneys were held personally liable in damages as guarantors of the quality of their evidence, they might hesitate to bring forward some witnesses or documents. "This is particularly so because it is very difficult if not impossible for attorneys to be absolutely certain of the objective truth or falsity of the testimony which they present." Imbler v. Pachtman, supra, 424 U.S., at 440, 96 S.Ct., at 999 (WHITE, J., concurring in judgment). Apart from the possible unfairness to agency personnel, the agency would often be denied relevant evidence. Cf. Imbler v. Pachtman, supra, at 426, 96 S.Ct., at 993. Administrative agencies can act in the public interest only if they can adjudicate on the basis of a complete record. We therefore hold that an agency attorney who arranges for the presentation of evidence on the record in the course of an adjudication is absolutely immune from suits based on the introduction of such evidence. VI 69 There remains the task of applying the foregoing principles to the claims against the particular petitioner-defendants involved in this case. Rather than attempt this here in the first instance, we vacate the judgment of the Court of Appeals and remand the case to that court with instructions to remand the case to the District Court for further proceedings consistent with this opinion. 70 So ordered. 71 Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice STEVENS join, concurring in part and dissenting in part. 72 I concur in that part of the Court's judgment which affords absolute immunity to those persons performing adjudicatory functions within a federal agency, ante, at 514, those who are responsible for the decision to initiate or continue a proceeding subject to agency adjudication, ante, at 516, and those agency personnel who present evidence on the record in the course of an adjudication, ante, at 517. I cannot agree, however, with the Court's conclusion that in a suit for damages arising from allegedly unconstitutional action federal executive officials, regardless of their rank or the scope of their responsibilities, are entitled to only qualified immunity even when acting within the outer limits of their authority. The Court's protestations to the contrary notwithstanding, this decision seriously misconstrues our prior decisions, finds little support as a matter of logic or precedent, and perhaps most importantly, will, I fear, seriously "dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties." Gregoire v. Biddle, 177 F.2d 579, 581 (C.A.2 1949) (Learned Hand, J.). 73 Most noticeable is the Court's unnaturally co strained reading of the landmark case of Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896). The Court in that case did indeed hold that the actions taken by the Postmaster General were within the authority conferred upon him by Congress, and went on to hold that even though he had acted maliciously in carrying out the duties conferred upon him by Congress he was protected by official immunity. But the Court left no doubt that it would have reached the same result had it been alleged the official acts were unconstitutional. 74 "We are of the opinion that the same general considerations of public policy and convenience which demand for judges of courts of superior jurisdiction immunity from civil suits for damages arising from acts done by them in the course of the performance of their judicial functions, apply, to a large extent to official communications made by heads of Executive Departments when engaged in the discharge of duties imposed upon them by law. The interests of the people require that due protection be accorded to them in respect of their official acts." Id., at 498, 16 S.Ct., at 637. 75 The Court today attempts to explain away that language by observing that Spalding indicated no intention to overrule Kendall v. Stokes, 3 How. 87, 11 L.Ed. 506 (1845), or Wilkes v. Dinsman, 7 How. 89, 12 L.Ed. 618 (1849). See ante, at 493 n. 18. But as the Court itself observes, the Postmaster General was held not "liable in an action for an error of judgment" in Kendall, supra, at 98. The Court in Wilkes, supra, likewise exonerated the defendant. The Court did indicate in dictum in both those cases that a federal officer might be liable if he acted with malice, Kendall, supra, at 99; Wilkes, supra, at 131, but the holding in Spalding was, as even the Court is forced to admit today, see ante, at 492-493, directly contrary to those cases on that point. In short, Spalding clearly and inescapably stands for the proposition that high-ranking executive officials acting within the outer limits of their authority are absolutely immune from suit. 76 Indeed, the language from Spalding quoted above unquestionably applies with equal force in the case at bar. No one seriously contends that the Secretary of Agriculture or the Assistant Secretary, who are being sued for $32 million in damages, had wandered completely off the official reservation in authorizing prosecution of respondent for violation of regulations promulgated by the Secretary for the regulation of "futures commission merchants," 7 U.S.C. § 6 (1976 ed.). This is precisely what the Secretary and his assistants were empowered and required to do. That they would on occasion be mistaken in their judgment that a particular merchant had in fact violated the regulations is a necessary concomitant of any known system of administrative adjudication; that they acted "maliciously" gives no support to respondent's claim against them unless we are to overrule Spalding. 77 The Court's attempt to distinguish Spalding may be predicated on a simpler but equally erroneous concept of immunity. At one point the Court observes that even under Spalding "an executive officer would be vulnerable if he took action 'manifestly or palpably' beyond his authority or ignored a clear limitation on his enforcement powers." Ante, at 493 n. 18. From that proposition, which is undeniably accurate, the Court appears to conclude that anytime a plaintiff can paint his grievance in constitutional colors, the official is subject to damages unless he can prove he acted in good faith. After all, Congress would never "authorize" an official to engage in unconstitutional conduct. That this notion in fact underlies the Court's decision is strongly suggested by its discussion of numerous cases which supposedly support its position, but all of which in fact deal not with the question of what level of immunity a federal official may claim when ac ing within the outer limits of his authority, but rather with the question of whether he was in fact so acting. See ante, at 489-491. 78 Putting to one side the illogic and impracticability of distinguishing between constitutional and common-law claims for purposes of immunity, which will be discussed shortly, this sort of immunity analysis badly misses the mark. It amounts to saying that an official has immunity until someone alleges he has acted unconstitutionally. But that is no immunity at all: The "immunity" disappears at the very moment when it is needed. The critical inquiry in determining whether an official is entitled to claim immunity is not whether someone has in fact been injured by his action; that is part of the plaintiff's case in chief. The immunity defense turns on whether the action was one taken "when engaged in the discharge of duties imposed upon [the official] by law," Spalding, 161 U.S., at 498, 16 S.Ct., at 637, or in other words, whether the official was acting within the outer bounds of his authority. Only if the immunity inquiry is approached in this manner does it have any meaning. That such a rule may occasionally result in individual injustices has never been doubted, but at least until today, immunity has been accorded nevertheless. As Judge Learned Hand said in Gregoire v. Biddle, 177 F.2d, at 581: 79 "The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. . . ." 80 Indeed, in that very case Judge Hand laid bare the folly of approaching the question of immunity in the manner suggested today by the Court. 81 "The decisions have, indeed, always imposed as a limitation upon the immunity that the official's act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment's reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him. . . ." Ibid. 82 Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), unfortunately fares little better at the Court's hand than Spalding. Here the Court at least recognizes and reaffirms the minimum proposition for which Barr stands—that executive officials are absolutely immune at least from actions predicated on common-law claims as long as they are acting within the outer limits of their authority. See ante, at 495. Barr is distinguished, however, on the ground that it did not involve a violation of "those fund mental principles of fairness embodied in the Constitution." Ibid. But if we allow a mere allegation of unconstitutionality, obviously unproved at the time made, to require a Cabinet-level official, charged with the enforcement of the responsibilities to which the complaint pertains, to lay aside his duties and defend such an action on the merits, the defense of official immunity will have been abolished in fact if not in form. The ease with which a constitutional claim may be pleaded in a case such as this, where a violation of statutory or judicial limits on agency action may be readily converted by any legal neophyte into a claim of denial of procedural due process under the Fifth Amendment, will assure that. The fact that the claim fails when put to trial will not prevent the consumption of time, effort, and money on the part of the defendant official in defending his actions on the merits. The result can only be damage to the "interests of the people," Spalding, supra, 161 U.S., at 498, 16 S.Ct., at 637, which "require[s] that due protection be accorded to [Cabinet officials] in respect of their official acts." 83 It likewise cannot seriously be argued that an official will be less deterred by the threat of liability for unconstitutional conduct than for activities which might constitute a common-law tort. The fear that inhibits is that of a long, involved lawsuit and a significant money judgment, not the fear of liability for a certain type of claim. Thus, even viewing the question functionally—indeed, especially viewing the question functionally the basis for a distinction between constitutional and common-law torts in this context is open to serious question. Even the logical justification for raising such a novel distinction is far from clear. That the Framers thought some rights sufficiently susceptible of legislative derogation that they should be enshrined in the Constitution does not necessarily indicate that the Framers likewise intended to establish an immutable hierarchy of rights in terms of their importance to individuals. The most heinous common-law tort surely cannot be less important to, or have less of an impact on, the aggrieved individual than a mere technical violation of a constitutional proscription. 84 The Court purports to find support for this distinction, and therefore this result, in the principles supposedly underlying Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803) and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the fact that cognate state officials are not afforded absolute immunity for actions brought under 42 U.S.C. § 1983. Undoubtedly these rationales have some superficial appeal, but none withstands careful analysis. Marbury v. Madison, supra, leaves no doubt that the high position of a Government official does not insulate his actions from judicial review. But that case, like numerous others which have followed, involved equitable-type relief by way of mandamus or injunction. In the present case, respondent sought damages in the amount of $32 million. There is undoubtedly force to the argument that injunctive relief, in these cases where a court determines that an official defendant has violated a legal right of the plaintiff, sets the matter right only as to the future. But there is at least as much force to the argument that the threat of injunctive relief without the possibility of damages in the case of a Cabinet official is a better tailoring of the competing need to vindicate individual rights, on the one hand, and the equally vital need, on the other, that federal officials exercising discretion will be unafraid to take vigorous action to protect the public interest. 85 The Court also suggests in sweeping terms that the cause of action recognized in Bivens would be " 'drained of meaning' if federal officials were entitled to absolute immunity for their constitutional transgressions." Ante, at 501. But Bivens is a slender reed on which to rely when abrogating official immunity for Cabinet-level officials. In the first place, those officials most susceptible to claims under Bivens have historically been given only a qualified immunity. As the Court observed in Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967), "[t]he common law has never granted police officers an absolute and unqualified immunity . . . ." In any event, it certainly does not follow that a grant of absolute immunity to the Secretary and Assistant Secretary of Agriculture requires a like grant to federal law enforcement officials. But even more importantly, on the federal side, when Congress thinks redress of grievances is appropriate, it can and generally does waive sovereign immunity, allowing an action directly against the United States. This allows redress for deprivations of rights, while at the same time limiting the outside influences which might inhibit an official in the free and considered exercise of his official powers. In fact, Congress, making just these sorts of judgments with respect to the very causes of action which the Court suggests require abrogation of absolute immunity, has amended the Federal Tort Claims Act, see 28 U.S.C. § 2680(h) (1976 ed.), to allow suits against the United States on the basis of certain intentional torts if committed by federal "investigative or law enforcement officers." 86 The Court also looks to the question of immunity of state officials for causes arising under § 1983 and, quoting a concurring opinion in Anderson v. Nosser, 438 F.2d 183, 205 (CA 5 1971), to the effect that there should not be "one law for Athens and another for Rome," finds no reason why those principles should not likewise apply when federal officers are the target. Homilies cannot replace analysis in this difficult area, however. And even a moment's reflection on the nature of the Bivens -type action and the purposes of § 1983, as made abundantly clear in this Court's prior cases, supplies a compelling reason for distinguishing between the two different situations. In the first place, as made clear above, a grant of absolute immunity to high-ranking executive officials on the federal side would not eviscerate the cause of action recognized in Bivens. The officials who are the most likely defendants in a Bivens -type action have generally been accorded only a qualified immunity. But more importantly, Congress has expressly waived sovereign immunity for this type of suit. This permits a direct action against the Government, while limiting those risks which might "dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties." And the Federal Government can internally supervise and check its own officers. The Federal Government is not so situated that it can control state officials or strike this same balance, however. Hence the necessity of § 1983 and the differing standards of immunity. As the Court observed in District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973): 87 "Although there are threads of many thoughts running through the debates on the 1871 Act, it seems clear that § 1 of the Act, with which we are here concerned, was designed primarily in response to unwillingness or inability of the state governments to enforce their own laws against those violating the civil rights of others." Id., at 426, 93 S.Ct., at 607. 88 "[T]he [basic] rationale underlying Congress' decision not to enact legislation similar to § 1983 with respect to federal officials [was] the assumption that the Federal Government could keep its own officers under control . . . ." Id., at 429-430, 93 S.Ct., at 609. 89 The Court attempts to avoid the force of this argument by suggesting that the statute which vests federal courts with general federal-question jurisdiction is basically the equivalent of § 1983. Ante, at 502 n. 30. But tha suggestion evinces a basic misunderstanding of the difference between a statute which vests jurisdiction in federal courts, which are, as a constitutional matter, courts of limited jurisdiction, and a statute, or even a constitutional provision, which creates a private right of action. As even the Court's analysis in Bivens made clear, a statute giving jurisdiction to federal courts does not, in and of itself, create a right of action. And to date, the Court has not held that the Constitution itself creates a privateright of action for damages except when federal law enforcement officials arrest someone and search his premises in violation of the Fourth Amendment. Thus, the Court's attempt to equate § 1983 and 28 U.S.C. § 1331 (1976 ed.) simply fails, and its further observation—that there should be no difference in immunity between state and federal officials—remains subject to serious doubt. 90 My biggest concern, however, is not with the illogic or impracticality of today's decision, but rather with the potential for disruption of Government that it invites. The steady increase in litigation, much of it directed against governmental officials and virtually all of which could be framed in constitutional terms, cannot escape the notice of even the most casual observer. From 1961 to 1977, the number of cases brought in the federal courts under civil rights statutes increased from 296 to 13,113. See Director of the Administrative Office of the United States Courts Ann.Rep. 189, Table 11 (1977); Ann.Rep. 173, Table 17 (1976). It simply defies logic and common experience to suggest that officials will not have this in the back of their minds when considering what official course to pursue. It likewise strains credulity to suggest that this threat will only inhibit officials from taking action which they should not take in any event. It is the cases in which the grounds for action are doubtful, or in which the actor is timid, which will be affected by today's decision. 91 The Court, of course, recognizes this problem and suggests two solutions. First, judges, ever alert to the artful pleader, supposedly will weed out insubstantial claims. Ante, at 507. That, I fear, shows more optimism than prescience. Indeed, this very case, unquestionably frivolous in the extreme, belies any hope in that direction. And summary judgment on affidavits and the like is even more inappropriate when the central, and perhaps only, inquiry is the official's state of mind. See C. Wright, Law of Federal Courts 493 (3d ed. 1976) (It "is not feasible to resolve on motion for summary judgment cases involving state of mind"); Subin v. Goldsmith, 224 F.2d 753 (C.A.2 1955). 92 The second solution offered by the Court is even less satisfactory. The Court holds that in those special circumstances "where it is demonstrated that absolute immunity is essential for the conduct of the public business," absolute immunity will be extended. Ante, at 507. But this is a form of "absolute immunity" which in truth exists in name only. If, for example, the Secretary of Agriculture may never know until inquiry by a trial court whether there is a possibility that vexatious constitutional litigation will interfere with his decision-making process, the Secretary will obviously think not only twice but thrice about whether to prosecute a litigious commodities merchant who has played fast and loose with the regulations for his own profit. Careful consideration of the rights of every individual subject to his jurisdiction is one thing; a timorous reluctance to prosecute any of such individuals who have a reputation for using litigation as a defense weapon is quite another. Since Cabinet officials are mortal, it is not likely that we shall get the precise judgmental balance desired in each of them, and it is because of these very human failings that the principles of Spalding, 161 U.S., at 498, 16 S.Ct., at 637, dictate that absolute immunity be accorded once it be concluded by a court that a high level executive official was "engaged in the discharge of duties imposed upon [him] by law."* 93 Today's opinion has shouldered a formidable task insofar as it seeks to justify the rejection of the views of the first Mr. Justice Harlan expressed in his opinion for the Court in Spalding v. Vilas, supra, and those of the second Mr. Justice Harlan expressed in his opinions in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), and its companion case of Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959). In terms of juridical jousting, if not in terms of placement in the judicial hierarchy, it has taken on at least as formidable a task when it disregards the powerful statement of Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579 (CA 2 1949). 94 History will surely not condemn the Court for its effort to achieve a more finely ground product from the judicial mill, a product which would both retain the necessary ability of public officials to govern and yet assure redress to those who are the victims of official wrongs. But if such a system of redress for official wrongs was indeed capable of being achieved in practice, it surely would not have been rejected by this Court speaking through the first Mr. Justice Harlan in 1896, by this Court speaking through the second Mr. Justice Harlan in 1959, and by Judge Learned Hand speaking for the Court of Appeals for the Second Circuit in 1948. These judges were not inexperienced neophytes who lacked the vision or the ability to define immunity doctrine to accomplish that result had they thought it possible. Nor were they obsequious toadies in their attitude toward high-ranking officials of coordinate branches of the Federal Government. But they did see with more prescience than the Court does today, that there are inevitable trade-offs in connection with any doctrine of official liability and immunity. They forthrightly accepted the possibility that an occasional failure to redress a claim of official wrongdoing would result from the doctrine of absolute immunity which they espoused, viewing it as a lesser evil than the impairment of the ability of responsible public officials to govern. 95 But while I believe that history will look approvingly on the motives of the Court in reaching the result it does today, I do not believe that history will be charitable in its judgment of the all but inevitable result of the doctrine spoused by the Court in this case. That doctrine seeks to gain and hold a middle ground which, with all deference, I believe the teachings of those who were at least our equals suggest cannot long be held. That part of the Court's present opinion from which I dissent will, I fear, result in one of two evils, either one of which is markedly worse than the effect of according absolute immunity to the Secretary and the Assistant Secretary in this case. The first of these evils would be a significant impairment of the ability of responsible public officials to carry out the duties imposed upon them by law. If that evil is to be avoided after today, it can be avoided only by a necessarily unprincipled and erratic judicial "screening" of claims such as those made in this case, an adherence to the form of the law while departing from its substance. Either one of these evils is far worse than the occasional failure to award damages caused by official wrongdoing, frankly and openly justified by the rule of Spalding v. Vilas, Barr v. Matteo, and Gregoire v. Biddle. 1 The individual Arthur N. Economou, his corporation Arthur N. Economou and Co., and another corporation which he heads, the American Board of Trade, Inc., were all plaintiffs in this action and are all respondents in this Court. For convenience, however, we refer to Arthur N. Economou and his interests in the singular, as "respondent." 2 These individuals included the Administrator of the Commodity Exchange Authority, the Director of its Compliance Division, the Deputy Director of its Registration and Audit Division, and the Regional Administrator for the New York Region. 3 Also named as defendants were the United States, the Department of Agriculture and the Commodity Exchange Authority. 4 More detailed allegations concerning many of the incidents charged in the complaint were contained in an affidavit filed by respondent in connection with his earlier efforts to obtain injunctive relief. 5 In the second "cause of action," respondent stated that the defendants had issued administrative orders "illegal and punitive in nature" against him when he was no longer subject to their authority. The fourth "cause of action" alleged, inter alia, that respondent's rights to due process of law and to privacy as guaranteed by the Federal Constitution had been infringed by the furnishing of the administrative complaints to interested persons without respondent's answers. The fifth "cause of action" similarly alleged as a violation of due process that defendants had issued a press release containing facts the defendants knew or should have known were false. Respondent's remaining "causes of action" allege common-law torts: abuse of legal process, malicious prosecution, invasion of privacy, negligence, and trespass. 6 The District Court held that the complaint was barred as to the Government agency defendants by the doctrine of sovereign immunity. 7 Although we had noted in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), that "where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief," id., at 684, 66 S.Ct., at 777, the specific question faced in Bivens had been reserved. 8 The Court's opinion in Bivens concerned only a Fourth Amendment claim and therefore did not discuss what other personal interests were similarly protected by provisions of the Constitution. We do not consider that issue here. Cf. Doe v. McMillan, 412 U.S. 306, 325, 93 S.Ct. 2018, 2031, 36 L.Ed.2d 912 (1973). 9 Black v. United States, 534 F.2d 524 (C.A. 2 1976); States Marine Lines v. Shultz, 498 F.2d 1146 (C.A. 4 1974); Mark v. Groff, 521 F.2d 1376 (C.A. 9 1975); G. M. Leasing Corp. v. United States, 560 F.2d 1011 (C.A. 10 1977); Apton v. Wilson, 165 U.S.App.D.C. 22, 506 F.2d 83 (1974); see Paton v. La Prade, 524 F.2d 862 (C.A. 3 1975); Weir v. Muller, 527 F.2d 872 (C.A. 5 1976); Brubaker v. King, 505 F.2d 534 (C.A. 7 1974); Jones v. United States, 536 F.2d 269 (C.A. 8 1976). 10 The case had been before the Court once before, during the 1957 Term. After the trial, the defendant had appealed only the denial of an absolute privilege. The Court of Appeals affirmed the judgment against him on the ground that the press release exceeded his authority. Barr. v. Matteo, 100 U.S.App.D.C. 319, 244 F.2d 767 (1957). This Court vacated that judgment, 355 U.S. 171, 78 S.Ct. 204, 2 L.Ed.2d 179 (1957), directing the Court of Appeals to consider the qualified-privilege question. This the Court of Appeals did, 103 U.S.App.D.C. 176, 256 F.2d 890 (1958), holding as this Court described it, that "the press release was protected by a qualified privilege, but that there was evidence from which a jury could reasonably conclude that petitioner had acted maliciously, or had spoken with lack of reasonable grounds for believing that his statement was true, and that either conclusion would defeat the qua ified privilege." 360 U.S., at 569, 79 S.Ct., at 1338. Because the case was remanded for a new trial, the defendant sought certiorari a second time. 11 Mr. Justice Harlan's opinion in Barr was joined by three other Justices. The majority was formed through the concurrence in the judgment of Mr. Justice Black, who emphasized in a separate opinion the strong public interest in encouraging federal employees to ventilate their ideas about how the Government should be run. Id., at 576, 79 S.Ct., at 1342. 12 The Court wrote a similar opinion and entered a similar judgment in a companion case, Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959). There a complaint for defamation under state law alleged the publication of a deliberate and knowing falsehood by a federal officer. Judgment was entered for the officer before trial on the ground that the release was within the limits of his authority. The judgment was reversed in part by the Court of Appeals on the ground that in some respects the defendant was entitled to only a qualified privilege. This Court reversed, ruling that Barr controlled. 13 See n. 10, supra. The question presented in the Government's petition for certiorari was broadly framed: "Whether the absolute immunity from defamation suits, accorded officials of the Government with respect to acts done within the scope of their official authority, extends to statements to the press by high policy-making officers, below cabinet or comparable rank, concerning matters committed by law to their control or supervision." Pet. for Cert. in Barr v. Matteo, O.T. 1958, No. 350, p. 2. This question might be viewed as subsuming the question whether the official's immunity extended to situations in which the official had no reasonable grounds for believing that a statement was true. 14 Mr. Chief Justice Marshall explained: "An officer, for example, is ordered to arrest an individual. It is not necessary, nor is it usual, to say that he shall not be punished for obeying this order. His security is implied in the order itself. It is no unusual thing for an act of congress to imply, without expressing, this very exemption from State control . . . The collectors of the revenue, the carriers of the mail, the mint establishment, and all those institutions which are public in their nature, are examples in point. It has never been doubted that all who are employed in them are protected while in the line of duty; and yet this protection is not expressed in any act of congress. It is incidental to, and is implied in, the several acts by which these institutions are created, and is secured to the individuals employed in them by the judicial power alone . . . ." 15 Indeed, there appears to have been some doubt as to whether even an Act of Congress would immunize federal officials from suits seeking damages for constitutional violations. See Milligan v. Hovey, 17 F.Cas. 380 (No. 9,605) (CC Ind.1871); Griffin v. Wilcox, 21 Ind. 370, 372-373 (1863). See generally Engdahl, Immunity and Accountability for Positive Governmental Wrongs, 44 U.Colo.L.Rev. 1, 50-51 (1972). 16 While the Virginia Coupon Cases, like United States v. Lee, involved a suit for the return of specific property, the principles espoused therein are equally applicable to a suit for damages and were later so applied. Atchison, Topeka & Santa Fe R. Co. v. O'Connor, 223 U.S. 280, 287, 32 S.Ct. 216, 217, 56 L.Ed. 436 (1912). 17 An individual might be viewed as acting maliciously where "the circumstances show that he is not disagreeably impressed by the fact that his action injuriously affects the claims of particular individuals." 161 U.S., at 499, 16 S.Ct., at 499. 18 In addressing the liability of the Postmaster General, the Court referred to Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872), which the Court described as holding that "judges of courts of superior or general jurisdiction [are] not liable to civil suits for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." 161 U.S., at 493, 16 S.Ct., at 635. The Court was of the view that "the same general considerations of public policy and convenience which demand for judges of courts of superior jurisdiction immunity from civil suits for damages arising from acts done by them in the course of the performance of their judicial functions, apply to a large extent to official communications made by heads of Executive Departments when engaged in the discharge of duties imposed upon them by law." Id., at 498, 16 S.Ct., at 637. The Court plainly applied Bradley v. Fisher principles in holding that proof of malice would not subject an executive officer to liability for performing an act which he was authorized to perform by federal law. These principles, however, were not said to be completely applicable; and, as indicated in the text, the Court revealed no intention to overrule Kendall v. Stokes or Wilkes or to immunize an officer from liability for a willful misapplication of his authority. Also, on the face of the Spalding opinion, it would appear that an executive officer would be vulnerable if he took action "manifestly or palpably" beyond his authority or ignored a clear limitation on his enforcement powers. 19 Mr. Justice BRENNAN, dissenting in Barr v. Matteo, 360 U.S., at 587 n. 3, 79 S.Ct., at 1348 n. 3, emphasized this point: "The suit in Spalding seems to have been as much, if not more, a suit for malicious interference with advantageous relationships as a libel suit. The Court reviewed the facts and found no false statement. See 161 U.S., at 487-493, 16 S.Ct., at 633. The case may stand for no more than the proposition that where a Cabinet officer publishes a statement, not factually inaccurate, relating to a matter within his Department's competence, he cannot be charged with improper motives in publication. The Court's opinion leaned heavily on the fact that the contents of the statement (which were not on their face defamatory) were quite accurate, in support of its conclusion that publishing the statement was within the officer's discretion, foreclosing inquiry into his motives. Id., at 489-493, 16 S.Ct., at 637." The Barr plurality did not disagree with this characterization of the lawsuit in Spalding. See also Gray, Private Wrongs of Public Servants, 47 Calif.L.Rev. 303, 336 (1959). 20 Indeed, Barreme and Bates were cited with approval in a decision that was under submission with Spalding and was handed down a scant month before the judgment in Spalding was announced. Belknap v. Schild, 161 U.S. 10, 18, 16 S.Ct. 443, 445 (1896). 21 During the period prior to Barr, the lower federal courts broadly extended Spalding in according absolute immunity to federal officials sued for common-law torts. E. g., Jones v. Kennedy, 73 App.D.C. 292, 121 F.2d 40, cert. denied, 314 U.S. 665, 62 S.Ct. 130, 86 L.Ed. 532 (1941); Papagianakis v. The Samos, 186 F.2d 257 (C.A.4 1950), cert. denied, 341 U.S. 921, 71 S.Ct. 741, 95 L.Ed. 1354 (1951). See cases collected in Gray, supra n. 19, at 337-338. 22 We view this case, in its present posture, as concerned only with constitutional issues. The District Court memorandum focused exclusively on respondent's constitutional claims. It appears from the language and reasoning of its opinion that the Court of Appeals was also essentially concerned with respondent's constitutional claims. See, e. g., 535 F.2d, at 695 n. 7. The Second Circuit has subsequently read Economou as limited to that context. See Huntington Towers, Ltd. v. Franklin Nat. Bank, 559 F.2d 863, 870, and n. 2 (1977), cert. denied sub nom. Huntington Towers, Ltd. v. Federal Reserve Bank of N. Y., 434 U.S. 1012, 98 S.Ct. 726, 54 L.Ed.2d 756 (1978). The argument before us as well has focused on respondent's constitutional claims, and our holding is so limited. 23 Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973), did involve a constitutional claim for invasion of privacy—but in the special context of the Speech or Debate Clause. The Court held that the executive officials would be immune from suit only to the extent that the legislators at whose behest they printed and distributed the documents could claim the protection of the Speech or Debate Clause. 24 416 U.S., at 247, 94 S.Ct., at 1691, quoting Barr v. Matteo, 360 U.S., at 573-574, 79 S.Ct., at 1340-1341. The Court spoke of Barr v. Matteo as arising "[i]n a context other than a § 1983 suit." 416 U.S., at 247, 94 S.Ct., at 1692. Elsewhere in the opinion, however, the Court discussed Barr as arising "in the somewhat parallel context of the privilege of public officers from defamation actions." 416 U.S., at 242, 94 S.Ct., at 1689. The Court also relied on Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 47 (1896), without mentioning that that decision concerned federal officials. 416 U.S., at 242 n. 7, 246 n. 8, 94 S.Ct., at 1689 n. 7, 1691 n. 8. 25 As early as 1971, Judge, now Attorney General, Bell, concurring specially in a judgment of the Court of Appeals for the Fifth Circuit, recorded his "continuing belief that all police and ancillary personnel in this nation, whether state or federal, should be subject to the same accountability under law for their conduct." Anderson v. Nosser, 438 F.2d 183, 205 (1971). He objected to the notion that there should be "one law for Athens and another for Rome." Ibid. It appears from a recent decision that the Fifth Circuit has abandoned the view he criticized. See Weir v. Muller, 527 F.2d 872 (1976). 26 Courts and judges have noted the "incongruity" that would arise if officials of the District of Columbia, who are not subject to § 1983, were given absolute immunity while their counterparts in state government received qualified immunity. Bivens v. Six Unknown Fed. Narcotics Agents, 456 F.2d, at 1347; Carter v. Carlson, 144 U.S.App.D.C. 388, 401, 447 F.2d 358, 371 (1971) (Nichols, J., concurring), rev'd on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). 27 The First and Sixth Circuits have recently accorded immunity to federal officials sued for common-law torts, without discussion of their views with respect to constitutional claims. Berberian v. Gibney, 514 F.2d 790 (C.A.1 1975); Mandel v. Nouse, 509 F.2d 1031 (C.A.6 1975). 28 In Apton v. Wilson, 165 U.S.App.D.C. 22, 32, 506 F.2d 83, 93 (1974), Judge Leventhal compared the Governor of a State with the highest officers of a federal executive department: "The difference in office is relevant, for immunity depends in part upon 'scope of discretion and responsibilities of the office,' Scheuer v. Rhodes, supra, 416 U.S., at 247, 94 S.Ct., at 1692. But the difference is not conclusive in this case. Like the highest executive officer of a state, the head of a Federal executive department has broad discretionary authority. Each is called upon to act under circumstances where judgments are tentative and an unambiguously optimal course of action can be ascertained only in retrospect. Both officials have functions and responsibilities concerned with maintaining the public order; these may impel both officials to make decisions 'in an atmosphere of confusion, ambiguity, and swiftly moving events.' Scheuer v. Rhodes, supra, 416 U.S., at 247, 94 S.Ct., at 1691. Having a wider territorial responsibility than the head of a state government, a Federal cabinet officer may be entitled to consult fewer sources and expend less effort inquiring into the circumstances of a localized problem. But these considerations go to the showing an officer vested with a qualified immunity must make in support of 'good faith belief;' they do not make the qualified immunity itself inappropriate. The head of an executive department, no less than the chief executive of a state, is adequately protected by a qualified immunity." 29 Section 1 of the Civil Rights Act of 1871, 17 Stat. 13, provided in pertinent part: "[A]ny person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law . . . ." 30 The purpose of § 1 of the Civil Rights Act was not to abolish the immunities available at common law, see Pierson v. Ray, supra, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967), but to insure that federal courts would have jurisdiction of constitutional claims against state officials. We explained in District of Columbia v. Carter, 409 U.S., at 427-428, 93 S.Ct., at 607: "At the time this Act was adopted, . . . there existed no general federal-question jurisdiction in the lower federal courts. Rather, 'Congress relied on the state courts to vindicate essential rights arising under the Constitution and federal laws.' Zwickler v. Koota, 389 U.S. 241, 245, 88 S.Ct. 391, 394, 19 L.Ed.2d 444 (1967). With the growing awareness that this reliance had been misplaced, however, Congress recognized the need for original federal court jurisdiction as a means to provide at least indirect federal control over the unconstitutional actions of state officials." (Footnotes omitted.) The situation with respect to federal officials was entirely different: They were already subject to judicial control through the state courts, which were not particularly sympathetic to federal officials, or through the removal jurisdiction of the federal courts. See generally Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969); Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648 (1880). Moreover, in 1875 Congress vested the circuit courts with general federal-question jurisdiction, which encompassed many suits against federal officials. 18 Stat. 470. Thus, the absence of a statute similar to § 1983 pertaining to federal officials cannot be the basis for an inference about the level of immunity appropriate to federal officials. 31 At the time of the Bivens decision, the Federal Tort Claims Act prohibited recovery against the Government for "Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. § 2680(h). The statute was subsequently amended in light of Bivens to lift the bar against some of these claims when arising from the act of federal law enforcement officers. See 28 U.S.C. § 2680(h) (1976 ed.). 32 Mr. Justice Harlan, the author of the plurality opinion in Barr, noted that although "interests in efficient law enforcement . . . argue for a protective zone with respect to many types of Fourth Amendment violations . . . at the very least . . . a remedy would be available for the most flagrant and patently unjustified sorts of police conduct." Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S., at 411, 91 S.Ct., at 2012 (concurring in judgment). 403 U.S. 411, 91 S.Ct. 2012 (Harlan, J., concurring). 33 Pursuant to 28 U.S.C. § 2680 (1976 ed.), the Government is immune from "(a) Any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." See generally Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). 34 The Government argued in Bivens that the plaintiff should be relegated to his traditional remedy at state law. "In this scheme the Fourth Amendment would serve merely to limit the extent to which the agents could defend the state law tort suit by asserting that their actions were a valid exercise of federal power: if the agents were shown to have violated the Fourth Amendment such a defense would be lost to them and they would stand before the state law merely as private individuals." 403 U.S., at 390-391, 91 S.Ct., at 2002. Although, as this passage makes clear, traditional doctrine did not accord immunity to officials who transgressed constitutional limits, we believe that federal officials sued by such traditional means should similarly be entitled to a Scheuer immunity. 35 The defendant official may also be able to assert on summary judgment some other common-law or constitutional privilege. For example, in this case the defendant officials may be able to argue that their issuance of the press release was privileged as an accurate report on a matter of public record in an administrative proceeding. See Handler & Klein, The Defense of Privilege in Defamation Suits Against Government Executive Officials, 74 Harv.L.Rev. 44, 61-62, 75-76 (1960). Of course, we do not decide this issue at this time. 36 In Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), we recognized that state judges sued on constitutional claims pursuant to § 1983 could claim a similar absolute immunity. The Court reasoned: "It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation." Id., at 554, 87 S.Ct., at 1218. 37 The Imbler Court specifically reserved the question "whether like or similar reasons require immunity for those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate." 424 U.S., at 430-431, 96 S.Ct., at 995. 38 See generally Handler & Klein, supra n. 35, at 54-55. 39 Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institution, 184 U.S.App.D.C. 397, 401, 566 F.2d 289, 293 (1977), cert. pending, No. 76-418. 40 That prosecutors act under "serious constraints of time and even information" was not central to our decision in Imbler, for the same might be said of a wide variety of state and federal officials who enjoy only qualified immunity. See Scheuer v. Rhodes, 416 U.S., at 246-247, 94 S.Ct., at 1691. Nor do we think that administrative enforcement proceedings may be distinguished from criminal prosecutions on the ground that the former often turn on documentary proof. The key point is that administrative personnel, like prosecutors, "often must decide, especially in cases of wide public interest, whether to proceed to trial where there is a sharp conflict in the evidence." Imbler, 424 U.S., at 426 n. 24, 96 S.Ct., at 993. The complexity and quantity of documentary proof that may be adduced in a full-scale enforcement proceeding may make this decision even more difficult than the decision to prosecute a suspect. * The ultimate irony of today's decision is that in the area of common-law official immunity, a body of law fashioned and applied by judges, absolute immunity within the federal system is extended only to judges and prosecutors functioning in the judicial system. See Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872); Yaselli v. Goff, 12 F.2d 396 (C.A.2 1926), summarily aff'd, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927). Similarly, where this Court has interpreted 42 U.S.C. § 1983 in the light of common-law doctrines of official immunity, again only judges and prosecutors are accorded absolute immunity. See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed. 128 (1976). If one were to hazard an informed guess as to why such a distinction in treatment between judges and prosecutors, on the one hand, and other public officials on the other, obtains, mine would be that those who decide the common law know through personal experience the sort of pressures that might exist for such decisionmakers in the absence of absolute immunity, but may not know or may have forgotten that similar pressures exist in the case of nonjudicial public officials to whom difficult decisions are committed. But the cynical among us might not unreasonably feel that this is simply another unfortunate example of judges treating those who are not part of the judicial machinery as "lesser breeds without the law."

78

438 U.S. 645 98 S.Ct. 2985 57 L.Ed.2d 1018 State of CALIFORNIA et al., Petitioners,v.UNITED STATES. No. 77-285. Argued March 28, 1978. Decided July 3, 1978. Syllabus The United States Bureau of Reclamation applied to the California State Water Resources Control Board for a permit to appropriate water that would be impounded by the New Melones Dam, a unit of the California Central Valley Project. Congress specifically directed that the Dam be constructed and operated pursuant to the Reclamation Act of 1902, which established a program for federal construction and operation of reclamation projects to irrigate arid western land. Section 8 of that Act provides that "nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, . . . and the Secretary of the Interior in carrying out the provisions of this Act, shall proceed in conformity with such laws . . . ." After lengthy hearings, the Board, having found that unappropriated water was available for the project during certain times of the year, approved the Bureau's applications, but attached 25 conditions to the permit (the most important of which prohibited full impoundment until the Bureau was able to show a specific plan for use of the water) which the Board concluded were necessary to meet California's statutory water appropriation requirements. The United States then brought this action against petitioners (the State, the Board, and its members) seeking a declaratory judgment that the United States may impound whatever unappropriated water is necessary for a federal reclamation project without complying with state law. The District Court held that, as a matter of comity, the United States must apply to the State for an appropriation permit, but that the State must issue the permit without conditions if there is sufficient unappropriated water. The Court of Appeals affirmed, but held that § 8, rather than comity, requires the United States to apply for a permit. Held : 1. Under the clear language of § 8 and in light of its legislative history, a State may impose any condition on "control, appropriation, use or distribution of water" in a federal reclamation project that is not inconsistent with clear congressional directives respecting the project. To the extent that petitioners would be prevented by dicta that may point to a contrary conclusion in Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313; City of Fresno v. California, 372 U.S. 627, 83 S.Ct. 996, 10 L.Ed.2d 28, and Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542, from imposing conditions in this case that are not inconsistent with congressional directives authorizing the project in question, those dicta are disavowed. Pp. 653-679. 2. Whether the conditions imposed by the Board in this case are inconsistent with congressional directives as to the New Melones Dam and issues involving the consistency of the conditions remain to be resolved. P. 679. 558 F.2d 1347, reversed and remanded. Roderick E. Walston, San Francisco, Cal., for petitioners. Stephen R. Barnett, Washington, D. C., for respondent. Mr. Justice REHNQUIST delivered the opinion of the Court. 1 The United States seeks to impound 2.4 million acre-feet of water from California's Stanislaus River as part of its Central Valley Project. The California State Water Resources Control Board ruled that the water could not be allocated to the Government under state law unless it agreed to and complied with various conditions dealing with the water's use. The Government then sought a declaratory judgment in the District Court for the Eastern District of California to the effect that the United States can impound whatever unappropriated water is necessary for a federal reclamatio project without complying with state law. The District Court held that, as a matter of comity, the United States must apply to the State for an appropriation permit, but that the State must issue the permit without condition if there is sufficient unappropriated water. 403 F.Supp. 874 (1975). The Court of Appeals for the Ninth Circuit affirmed, but held that § 8 of the Reclamation Act of 1902, 32 Stat. 390, as codified, 43 U.S.C. §§ 372, 383, rather than comity, requires the United States to apply for the permit. 558 F.2d 1347 (1977). We granted certiorari to review the decision of the Court of Appeals insofar as it holds that California cannot condition its allocation of water to a federal reclamation project. 434 U.S. 984, 98 S.Ct. 608, 54 L.Ed.2d 477 (1977). We now reverse. 2 * Principles of comity and federalism, which the District Court and the Court of Appeals referred to and which have received considerable attention in our decisions, are as a legal matter based on the Constitution of the United States, statutes enacted by Congress, and judge-made law. But the situations invoking the application of these principles have contributed importantly to their formation. Just as it has been truly said that the life of the law is not logic but experience, see O. Holmes, The Common Law 1 (1881), so may it be said that the life of the law is not political philosophy but experience. 3 The very vastness of our territory as a Nation, the different times at which it was acquired and settled, and the varying physiographic and climatic regimes which obtain in its different parts have all but necessitated the recognition of legal distinctions corresponding to these differences. Those who first set foot in North America from ships sailing the tidal estuaries of Virginia did not confront the same problems as those who sailed flat boats down the Ohio River in search of new sites to farm. Those who cleared the forests in the old Northwest Territory faced totally different physiographic problems from those who built sod huts on the Great Plains. The final expansion of our Nation in the 19th century into the arid lands beyond the hundredth meridian of longitude, which had been shown on early maps as the "Great American Desert," brought the participants in that expansion face to face with the necessity for irrigation in a way that no previous territorial expansion had. 4 In order to correctly ascertain the meaning of the Reclamation Act of 1902, we must recognize the obvious truth that the history of irrigation and reclamation before that date was much fresher in the minds of those then in Congress than it is to us today. "[T]he afternoon of July 23, 1847, was the true date of the beginning of modern irrigation. It was on that afternoon that the first band of Mormon pioneers built a small dam across City Creek near the present site of the Mormon Temple and diverted sufficient water to saturate some 5 acres of exceedingly dry land. Before the day was over they had planted potatoes to preserve the seed."1 During the subsequent half century, irrigation expanded throughout the arid States of the West, supported usually by private enterprise or the local community.2 By the turn of the century, however, most of the land which could be profitably irrigated by such small-scale projects had been put to use. Pressure mounted on the Federal Government to provide the funding for the massive projects that would be needed to complete the reclamation, culminating in the Reclamation Act of 1902.3 5 The arid lands were not all susceptible of the same sort of reclamation. The climate and topography of the lands that constituted the "Great American Desert" were quite different from the climate and topography of the Pacific Coast States. As noted in both United States v. Gerlach Live Stock Co., 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231 (1950), and Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958), the latter States not only had a more pronounced seasonal variation and precipitation than the intermountain States, but the interior portions of California had climatic advantages which many of the intermountain States did not. 6 "The prime value in our national economy of the lands of summer drought on the Pacific Coast is as a source of plant products that require mild winters and long growing seasons. Citrus fruits, the less hardy deciduous fruits, fresh vegetables in winter—these are their most important contributions at present. Rainless summers make possible the inexpensive drying of fruits, which puts into the market prunes, raisins, dried peaches, and apricots. In its present relation to American economy in general, the primary technical problem of agriculture in the Pacific coast States is to make increasingly more effective use of the mild winters and the long growing season in the face of the great obstacle presented by the rainless summers. To overcome that obstacle supplementary irrigation is necessary. Hence the key position of water in Pacific Coast agriculture."4 7 If the term "cooperative federalism" had been in vogue in 1902, the Reclamation Act of that year would surely have qualified as a leading example of it. In that Act, Congress set forth on a massive program to construct and operate dams, reservoirs, and canals for the reclamation of the arid lands in 17 Western States. Reflective of the "cooperative federalism" which the Act embodied is § 8, whose exact meaning and scope are the critical inquiries in this case: 8 "[N]othing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, That the right to use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right." 32 Stat. 390. (emphasis added). 9 Perhaps because of the cooperative nature of the legislation, and the fact that Congress in the Act merely authorized the expenditure them expended, there has not been a great deal of litigation involving the meaning of its language. Indeed, so far as we can tell, the first case to come to this Court involving the Act at all was Ickes v. Fox, 300 U.S. 82, 57 S.Ct. 412, 81 L.Ed. 412 (1937), and the first case to require construction of § 8 of the Act was United States v. Gerlach Live Stock Co., supra, decided nearly half a century after the enactment of the 902 statute.5 10 The New Melones Dam, which this litigation concerns, is part of the California Central Valley Project, the largest reclamation project yet authorized under the 1902 Act.6 The Dam, which will impound 2.4 million acre-feet of water of California's Stanislaus River, has the multiple purposes of flood control, irrigation, municipal use, industrial use, power, recreation, water-quality control, and the protection of fish and wildlife. The waters of the Stanislaus River that will be impounded behind the New Melones Dam arise and flow solely in California. 11 The United States Bureau of Reclamation, as it has with every other federal reclamation project, applied for a permit from the appropriate state agency, here the California State Water Resources Control Board, to appropriate the water that would be impounded by the Dam and later used for reclamation.7 After lengthy hearings, the State Board found that unappropriated water was available for the New Melones Dam during certain times of the year. Although it therefore approved the Bureau's applications, the State Board attached 25 conditions to the permit. California State Water Resources Control Board, Decision 1422 (Apr. 14, 1973). The most important conditions prohibit full impoundment until the Bureau is able to show firm commitments, or at least a specific plan, for the use of the water.8 The State Board concluded that without such a specific plan of beneficial use the Bureau had failed to meet the California statutory requirements for appropriation. 12 "The limited unappropriated water resources of the State should not be committed to an applicant in the absence of a showing of his actual need for the water within a reasonable time in the future. When the evidence indicates, as it does here, that an applicant already has a right to sufficient water to meet his needs for beneficial use within the foreseeable future, rights to additional water should be withheld and that water should be reserved for other beneficial uses." Id., at 16. II 13 The history of the relationship between the Federal Government and the States in the reclamation of the arid lands of the Western States is both long and involved, but through it runs the consistent thread of purposeful and continued deference to state water law by Congress. The rivers, streams, and lakes of California were acquired by the United States under the 1848 Treaty of Guadalupe Hidalgo, with the Republic of Mexico, 9 Stat. 922. Within a year of that treaty, the California gold rush began, and the settlers in this new land quickly realized that the riparian doctrine of water rights that had served well in the humid regions of the East would not work in the arid lands of the West. Other settlers coming into the intermountain area, the vast basin and range country which lies between the Rocky Mountains on the east and the Sierra Nevada and Cascade Ranges on the west, were forced to the same conclusion. In its place, the doctrine of prior appropriation, linked to beneficial use of the water, arose through local customs, laws, and judicial decisions. Even in this early stage of the development of Western water law, before many of the Western States had been admitted to the Union, Congress deferred to the growing local law. Thus, in Broder v. Water Co., 101 U.S. 274, 25 L.Ed. 790 (1879), the Court observed that local appropriation rights were "rights which the government had, by its conduct, recognized and encouraged and was bound to protect." Id., at 276. 14 In 1850, California was admitted as a State to the Union "on an equal footing with the original States in all respects whatever." 9 Stat. 452. While § 3 of the Act admitting California to the Union specifically reserved to the United States all "public lands" within the limits of California, no provision was made for the unappropriated waters in California's streams and rivers. One school of legal commentators held the view that, under the equal-footing doctrine, the Western States, upon their admission to the Union, acquired exclusive sovereignty over the unappropriated waters in their streams. In 1903, for example, one leading expert on reclamation and water law observed that "[i]t has heretofore been assumed that the authority of each State in the disposal of the water-supply within its borders was unquestioned and supreme, and two of the States have constitutional provisions asserting absolute ownership of all water-supplies within their bounds." E. Mead, Irrigation Institutions 372 (1903).9 Such commentators were not without some support from language in contemporaneous decisions of this Court. See S. Wiel, Water Rights in the Western States §§ 40-43, pp. 84-95 (2d Ed. 1908). Thus, inKansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956 (1907), the Court noted: 15 "While arid lands are to be found mainly, if not only in the Western and newer States, yet the powers of the National Government within the limits of those States are the same (no greater and no less) than those within the limits of the original thirteen. 16 * * * * * 17 "In the argument on the demurrer counsel for plaintiff endeavored to show that Congress had expressly imposed the common law on all this territory prior to its formation into States. . . . But when the States of Kansas and Colorado were admitted into the Union they were admitted with the full powers of local sovereignty which belonged to other States, Pollard v. Hagan, [44 U.S., 3 How. 212, 11 L.Ed. 565]; Shively v. Bowlby, [152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331]; Hardin v. Shedd, 190 U.S. 508, 519, 23 S.Ct. 685, 47 L.Ed. 1156, 1157; and Colorado by its legislation has recognized the right of appropriating the flowing waters to the purposes of irrigation." Id., at 92 and 95, 27 S.Ct., at 665 and 666. 18 And see United States v. Rio Grande Dam & Irrig. Co., 174 U.S. 690, 702-703, and 709, 19 S.Ct. 770, 774-775, and 777, 43 L.Ed. 1136 (1899). 19 As noted earlier, reclamation of the arid lands began almost immediately upon the arrival of pioneers to the Western States. Huge sums of private money were invested in systems to transport water vast distances for mining, agriculture, and ordinary consumption. Because a very high percentage of land in the West belonged to the Federal Government, the canals and ditches that carried this water frequently crossed federal land. In 1862, Congress opened the public domain to homesteading. Homestead Act of 1862, 12 Stat. 392. And in 1866, Congress for the first time expressly opened the mineral lands of the public domain to exploration and occupation by miners. Mining Act of 1866, ch. 262, 14 Stat. 251. Because of the fear that these Acts might in some way interfere with the water rights and systems that had grown up under state and local law, Congress explicitly recognized and acknowledged the local law: 20 "[W]henever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same." § 9, 14 Stat. 253. 21 The Mining Act of 1866 was not itself a grant of water rights pursuant to federal law. Instead, as this Court observed, the Act was " 'a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use.' " United States v. Rio Grande Dam & Irrig. Co., supra, at 705, 19 S.Ct., at 776. Congress intended "to recognize as valid the customary law with respect to the use of water which had grown up among the occupants of the public land under the peculiar necessities of their condition."10 Basey v. Gallagher, 87 U.S. 670, 20 Wall. 670, 684, 22 L.Ed. 452 (1875). See Broder v. Water Co., supra, 101 U.S., at 276; Jennison v. Kirk, 98 U.S. 453, 459-461, 25 L.Ed. 240 (1879).11 22 In 1877, Congress took its first step toward encouraging the reclamation and settlement of the public desert lands in the West and made it clear that such reclamation would generally follow state water law. In the Desert Land Act of 1877, Congress provided for the homesteading of arid public lands in larger tracts 23 "by [the homesteader's] conducting water upon the same, within the period of three years [after filing a declaration to do so], Provided however that the right to the use of water by the person so conducting the same . . . shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation: and all surplus water over and above such actual appropriation and use, together with the water of all, lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights." Ch. 107, 19 Stat. 377 (emphasis added). 24 This Court has had an opportunity to construe the 1877 Desert Land Act before. In California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 55 S.Ct. 725, 79 L.Ed. 1356 (1935), Mr. Justice Sutherland12 explained that, through this language, Congress "effected a severance of all waters upon the public domain, not theretofore appropriated, from the land itself." Id., at 158, 55 S.Ct., at 729. The nonnavigable waters thereby severed were "reserved for the use of the public under the laws of the states and territories." Id., at 162, 55 S.Ct., at 731. Congress' purpose was not to federalize the prior-appropriation doctrine already evolving under local law. Quite the opposite: 25 "What we hold is that following the act of 1877, if not before, all non-navigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated states, including those since created out of the territories named, with the right in each to determine for itself to what extent the rule of appropriation or the common-law rule in respect of riparian rights should obtain. For since 'Congress cannot enforce either rule upon any state,' Kansas v. Colorado, 206 U.S. 46, 94, 27 S.C . 655, 666, 51 L.Ed. 956, the full power of choice must remain with the state. The Desert Land Act does not bind or purport to bind the states to any policy. It simply recognizes and gives sanction, in so far as the United States and its future grantees are concerned, to the state and local doctrine of appropriation, and seeks to remove what otherwise might be an impediment to its full and successful operation. See Wyoming v. Colorado, 259 U.S. 419, 465, 42 S.Ct. 552, 557, 66 L.Ed. 999." Id., at 163-164, 55 S.Ct., at 731. 26 See also Gutierres v. Albuquerque Land & Irrig. Co., 188 U.S. 545, 552-553, 23 S.Ct. 338, 340-341, 47 L.Ed. 588 (1903); Ickes v. Fox, 300 U.S. 82, 95, 57 S.Ct. 412, 416, 81 L.Ed. 525 (1937); Brush v. Commissioner, 300 U.S. 352, 367, 57 S.Ct. 495, 498, 81 L.Ed. 691 (1937). 27 Congress next addressed the task of reclaiming the arid lands of the West 11 years later. The opening of the arid lands to homesteading raised the specter that settlers might claim lands more suitable for reservoir sites or other irrigation works, impeding future reclamation efforts. Congress addressed this problem in the Act of Oct. 2, 1888, 25 Stat. 527, which provided: 28 "[A]ll the lands which may hereafter be designated or selected by such United States surveys for sites for reservoirs, ditches or canals for irrigation purposes and all the lands made susceptible of irrigation by such reservoirs, ditches or canals are from this time henceforth hereby reserved from sale as the property of the United States, and shall not be subject after the passage of this act, to entry, settlement or occupation until further provided by law." 29 Unfortunately, this language, which had been hastily drafted and passed, had the practical effect of reserving all of the public lands in the West from settlement.13 As a result, "there came a perfect storm of indignation from the people of the West, which resulted in the prompt repeal of the extraordinary [1888] provision." 29 Cong.Rec. 1955 (1897) (statement of Cong. McRae). In the Act of Aug. 30, 1890, 26 Stat. 391, Congress repealed the 1888 provision except insofar as it reserved reservoir sites. Then, in the Act of Mar. 3, 1891, 26 Stat. 1101, as amended, 43 U.S.C. § 946, Congress provided for rights-of-way across the public lands to be used by "any canal or ditch company or drainage district formed for the purpose of irrigation." The apparent purpose of the 1890 and 1891 Acts was to reserve reservoir sites from settlement but to open them for use in reclamation projects.14 As before, Congress expressly indicated that the reclamation would be controlled by state water law:15 30 "[T]he right of way through the public lands and reservations of the United States is hereby granted . . . for the purpose of irrigation . . ., to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals . . .; Provided, That . . . the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories." 26 Stat. 1101 (emphasis added). 31 The Secretary of the Interior, unfortunately, interpreted the 1890 and 1891 Acts as reserving governmentally surveyed reservoir sites from use rather than for use. Congress rectified this interpretation in the Act of Feb. 26, 1897, ch. 335, 29 Stat. 599, which provided: 32 "[A]ll reservoir sites reserved or to be reserved shall be open to use and occupation under the right-of-way Act of March third, eighteen hundred and ninety-one. And any State is hereby authorized to improve and occupy such reservoir sites to the same extent as an individual or private corporation, under such rules and regulations as the Secretary of the Interior may prescribe: Provided, That the charges for water coming in whole or part from reservoir sites used or occupied under the provisions of this Act shall always be subject to the control and regulation of the respective States and Territories in which such reservoirs are in whole or part situate." 33 The final provision of the 1897 Act was proposed as a floor amendment by Representative, later Speaker, Cannon to expressly preserve State's control over reclamation within their borders. It was clearly the opinion of a majority of the Congressmen who spoke on the bill, however, that such an amendment was unnecessary except out of an excess of caution.16 According to Congressman Lacey, Chairman of the House Committee on Public Lands and a principal sponsor of the 1897 Act, the water through which the reclamation would be accomplished 34 "does not belong to the [Federal] Government. The reservoirs in which the water is stored belong to the Government, but the water belongs to the States and will be controlled by them. The amendment proposed by the gentleman from Illinois [Mr. Cannon] relieves this measure from all possible doubt upon that subject. I think there could be no doubt anyhow, but this amendment takes away the possibility of any question being raised as to the right of the States and Territories to regulate and control the management and the price of the water." 29 Cong.Rec. 1952 (1897). 35 Congressman Lacey's statement found reflection in contemporaneous decisions of this Court holding that, with limited exceptions not relevant to reclamation, authority over intrastate waterways lies with the States. In United States v. Rio Grande Dam & Irrig. Co., for example, New Mexico's authority to adopt a prior appropriation system of water rights for the Rio Grande River was challenged. The Court unhesitatingly held that "as to every stream within its dominion a State may change [the] common law rule and permit the appropriation of the flowing waters for such purposes as it deems wise." 174 U.S., at 702-703, 19 S.Ct., at 775. The Court noted that there are two limitations to the States' exclusive control of its streams—reserved rights "so far at least as may be necessary for the beneficial uses of the government property," id., at 703, 19 S.Ct., at 775, and the navigation servitude. The Court, however, was careful to emphasize with respect to these limitations on the States' power that, except where the reserved rights or navigation servitude of the United States are invoked, the State has total authority over its internal waters. "Unquestionably the State . . . has a right to appropriate its waters, and the United States may not question such appropriation, unless thereby the navigability of the [river] be disturbed." Id., 690 U.S., at 709, 19 S.Ct., at 777. 36 Similarly, in Kansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956 (1907), the United States claimed that it had a right in the Arkansas River superior to that of Kansas and Colorado stemming from its power "to control the whole system of the reclamation of arid lands." The Court disagreed and held that state reclamation law must prevail. The United States, of course, could appropriate water and build projects to reclaim its own public lands. "As to those lands within the limits of the States, at least, of the Western States, the National Government is the most considerable owner and has power to dispose of and make all needful rules and regulations respecting its property." Id., at 92, 27 S.Ct., at 665. But federal legislation could not "override state laws in respect to the general subject of reclamation." Ibid. "[E]ach State has full jurisdiction over the lands within its borders, including the beds of streams and other waters." Id., at 93, 27 S.Ct., at 665. With respect to the question that had been presented in Rio Grande Dam & Irrig. Co., the Court reaffirmed that each State "may determine for itself whether the common law rule in respect to riparian rights or that doctrine which obtains in the arid regions of the West of the appropriation of waters for the purposes of irrigation shall control. Congress cannot enforce either rule upon any State." 206 U.S., at 94, 27 S.Ct., at 666. III 37 It is against this background that Congress passed the Reclamation Act of 1902. With the help of the 1891 and 1897 Acts, private and state reclamation projects had gone far toward reclaiming the arid lands,17 but massive projects were now needed to complete the goal and these were beyond the means of private companies and the States. In 1900, therefore, all of the major political parties endorsed federal funding of reclamation projects. While the Democratic Party's platform specified none of the attributes of a federal program other than to recommend that it be "intelligent," K. Porter & D. Johnson, National Party Platforms 115 (2d ed. 1961), the Republicans specifically recommended that the reclamation program "reserv[e] control of the distribution of water for irrigation to the respective States and territories." Id., at 123. In his first message to Congress after assuming the Presidency, Theodore Roosevelt continued the cry for national funding of reclamation and again recommended that state law control the distribution of water.18 38 As a result of the public demand for federal reclamation funding, a bill was introduced into the 57th Congress to use the money from the sale of public lands in the Western States to build reclamation projects in those same States. The projects would be built on federal land and the actual construction and operation of the projects would be in the hands of the Secretary of the Interior. But the Act clearly provided that state water law would control in the appropriation and later distribution of the water. As originally introduced, § 8 of the Reclamation Act provided:19 39 "[N]othing in this act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation; but State and Territorial laws shall govern and control in the appropriation, use, and distribution of the waters rendered available by the works constructed under the provisions of this act: Provided, That the right to the use of water acquired under the provisions of this act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right." 40 From the legislative history of the Reclamation Act of 1902, it is clear that state law was expected to control in two important respects. First, and of controlling importance to this case, the Secretary would have to appropriate, purchase, or condemn necessary water rights in strict conformity with state law. According to Representative Mondell, the principal sponsor of the reclamation bill in the House, once the Secretary determined that a reclamation project was feasible and that there was an adequate supply of water for the project, "the Secretary of the Interior would proceed to make the appropriation of the necessary water by giving the notice and complying with the forms of law of the State or Territory in which the works were located." 35 Cong.Rec. 6678 (1902) (emphasis added). The Secretary of the Interior could not take any action in appropriating the waters of the state streams "which could not be undertaken by an individual or corporation if it were in the position of the Government as regards the ownership of its lands." H.R.Rep.No. 794, 57th Cong., 1st Sess., 7-8 (1902). Thus, in response to the statement of an opponent to the bill that the Secretary would be allowed to condemn water even if in violation of state law, Representative Mondell briskly responded: 41 "Whereabouts does the gentleman find any such provision as he is arguing? Whereabouts in the bill is there anything that attempts to give the Federal Government any right to condemn or to take any water right or do anything which an individual could not do? Will the gentleman point out any place or any provision for the Federal Government to do anything that I could not do if I owned the public land? 42 "Mr. RAY of New York. Do you say there is nothing in this bill that provides for condemnation? 43 "Mr. MONDELL. The bill provides explicitly that even an appropriation of water can not be made except under State law." 35 Cong.Rec. 6687 (1902) (emphasis added).20 44 Second, once the waters were released from the Dam, their distribution to individual landowners would again be controlled by state law. As explained by Senator Clark of Wyoming, one of the principal supporters of the reclamation bill in the Senate, "the control of waters after leaving the reservoirs shall be vested in the States and Territories through which such waters flow." Id., at 2222. As Senator Clark went on to explain: 45 "[I]t is right and proper that the various States and Territories should control in the distribution. The conditions in each and every State and Territory are different. What would be applicable in one locality is totally and absolutely inapplicable in another. . . . In each and every one of the States and Territories affected, after a long series of experiments, after a due consideration of conditions, there has arisen a set of men who are especially qualified to deal with local conditions. 46 "Every one of these States and Territories has an accomplished and experienced corps of engineers who for years have devoted their energies and their learning to a solution of this problem of irrigation in their individual localities. To take from these experienced men, to take from the legislatures of the various States and Territories, the control of this question at the present time would be something little less than suicidal. They are the men qualified to deal with the question, the laws are written upon their statute books and read of all men, and in every one of these States and Territories the laws have been passed that most diligently regard the rights of the settler and of th farmer . . . ." Ibid. 47 As Representative Sutherland, later to be a Justice of this Court, succinctly put it, "if the appropriation and use were not under the provisions of the State law the utmost confusion would prevail." Id., at 6770. Different water rights in the same State would be governed by different laws and would frequently conflict.21 48 A principal motivating factor behind Congress' decision to defer to state law was thus the legal confusion that would arise if federal water law and state water law reigned side by side in the same locality. Congress also intended to "follo[w] the well-established precedent in national legislation of recognizing local and State laws relative to the appropriation and distribution of water." Id., at 6678 (Cong. Mondell). As Representative Mondell noted after reviewing the legislation discussed in Part II of this opinion: "Every act since that of April 26, 1866, has recognized local laws and customs appertaining to the appropriation and distribution of water used in irrigation, and it has been deemed wise to continue our policy in this regard." Id., at 6679.22 49 Both sponsors and opponents of the Reclamation Act also expressed constitutional doubts as to Congress' power to override the States' regulation of waters within their borders. Congress was fully aware that the Supreme Court had "in several decisions recognized the right of the State to regulate and control the use of water within its borders." Ibid. (Cong. Mondell). According to the House Report, "Section 8 recognizes State control over waters of nonnavigable streams such as are used in irrigation." H.R.Rep.No. 794, 57th Cong., 1st Sess., 6 (1902) (emphasis added).23 IV 50 For almost half a century, this congressionally mandated division between federal and state authority worked smoothly. No project was constructed without the approval of the Secretary of the Interior, and the United States through this official preserved its authority to determine how federal funds should be expended. But state laws relating to water rights were observed in accordance with the congressional directive contained in § 8 of the Act of 1902. In 1958, however, the first of two cases was decided by this Court in which private landowners or municipal corporations contended that state water law had the effect of overriding specific congressional directives to the Secretary of the Interior as to the operation of federal reclamation projects. In Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313, the Supreme Court of California decided that California law forbade the 160-acre limitation on irrigation water deliveries expressly written into § 5 of the Reclamation Act of 1902, and that therefore, under § 8 of the Reclamation Act, the Secretary was equired to deliver reclamation water without regard to the acreage limitation. Both the State of California and the United States appealed from this judgment, and this Court reversed it, saying: 51 "Section 5 is a specific and mandatory prerequisite laid down by the Congress as binding in the operation of reclamation projects, providing that '[n]o right to the use of water . . . shall be sold for a tract exceeding one hundred and sixty acres to any one landowner. . . . Without passing generally on the coverage of § 8 in the delicate area of federal-state relations in the irrigation field, we do not believe that the Congress intended § 8 to override the repeatedly reaffirmed national policy of § 5." 357 U.S., at 291-292, 78 S.Ct., at 1184. 52 Five years later, in City of Fresno v. California, 372 U.S. 627, 83 S.Ct. 996, 10 L.Ed.2d 28 (1963), this Court affirmed a decision of the United States Court of Appeals for the Ninth Circuit holding that § 8 did not require the Secretary of the Interior to ignore explicit congressional provisions preferring irrigation use over domestic and municipal use.24 53 Petitioners do not ask us to overrule these holdings, nor are we presently inclined to do so.25 Petitioners instead ask us to hold that a State may impose any condition on the "control, appropriation, use, or distribution of water" through a federal reclamation project that is not inconsistent with clear congressional directives respecting the project. Petitioners concede, and the Government relies upon, dicta in our cases that may point to a contrary conclusion. Thus, in Ivanhoe, the Court went beyond the actual facts of that case and stated: 54 "As we read § 8, it merely requires the United States to comply with state law when, in the construction and operation of a reclamation project, it becomes necessary for it to acquire water rights or vested interests therein. . . . We read nothing in § 8 that compels the United States to deliver water on conditions imposed by the State." 357 U.S., at 291-292, 78 S.Ct., at 1184. 55 Like dictum was repeated in City of Fresno, supra, at 630, 83 S.Ct., at 998, and in this Court's opinion in Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963), where the Court also said: 56 "The argument that § 8 of the Reclamation Act requires the United States in the delivery of water to follow priorities laid down by state law has already been disposed of by this Court in Ivanhoe Irr. Dist. v. McCracken, . . . and reaffirmed in City of Fresno v. California . . .. Since § 8 of the Reclamation Act did not subject the Secretary to state law in disposing of water in [Ivanhoe ], we cannot, consistently with Ivanhoe, hold that the Secretary must be bound by state law in disposing of water under the Project Act." Id., at 586-587, 83 S.Ct., at 1491. 57 While we are not convinced that the above language is diametrically inconsistent with the position of petitioners,26 or that it squarely supports the United States, it undoubtedly goes further than was necessary to decide the cases presented to the Court. Ivanhoe and City of Fresno involved conflicts between § 8, requiring the Secretary to follow state law as to water rights, and other provisions of Reclamation Acts that placed specific limitations on how the water was to be distributed. Here the United States contends that it may ignore state law even if no explicit congressional directive conflicts with the conditions imposed by the California State Water Control Board.27 58 In Arizona v. California, the States had asked the Court to rule that state law would control in the distribution of water from the Boulder Canyon Project, a massive multistate reclamation project on the Colorado River.28 After reviewing the legislative history of the Boulder Canyon Project Act, 43 U.S.C. § 617 et seq., the Court concluded that because of the unique size and multistate scope of the Project, Congress did not intend the States to interfere with the Secretary's power to determine with whom and on what terms water contracts would be made.29 While the Court in rejecting the States' claim repeated the language from Ivanhoe and City of Fresno as to the scope of § 8, there was no need for it to reaffirm such language except as it related to the singular legislative history of the Boulder Canyon Project Act. 59 But because there is at least tension between the above-quoted dictum and what we conceive to be the correct reading of § 8 of the Reclamation Act of 1902, we disavow the dictum to the extent that it would prevent petitioners from imposing conditions on the permit granted to the United States which are not inconsistent with congressional provisions authorizing the project in question. Section 8 cannot be read to require the Secretary to comply with state law only when it becomes necessary to purchase or condemn vested water rights. That section does, of course, provide for the protection of vested water rights, but it also requires the Secretary to comply with state law in the "control, appropriation, use, or distribution of water." Nor, as the United States contends, does § 8 merely require the Secretary of the Interior to file a notice with the State of his intent to appropriate but to thereafter ignore the substantive provisions of state law. The legislative history of the Reclamation Act of 1902 makes it abundantly clear that Congress intended to defer to the substance, as well as the form, of state water law. The Government's interpretation would trivialize the broad language and purpose of § 8. 60 Indeed, until recently, it has been the consistent position of the Secretary of the Interior and the Bureau of Reclamation, who are together responsible for executing the provisions of the Reclamation Act of 1902, that in appropriating water for reclamation purposes the Bureau must comply with state law. The Bureau's operating instructions, for example, provide: 61 "State and Federal law and policy establish the framework for project formulation. Project plans must comply with State legal provisions or priorities for beneficial use of water . . . . In some cases, . . . State laws . . . have been modified to meet specific conditions in the authorization of particular projects." U.S. Department of Interior, Bureau of Reclamation, Reclamation Instructions § 116.3.1 (1959) (emphasis added). 62 "The Reclamation Act recognizes the interests and rights of the States in the utilization and control of their water resources and requires the Bureau, in carrying out provisions of the Act, to proceed in conformity with State water laws. Since the construction of a reservoir and the subsequent storage and release of water for beneficial purposes normally entails stream regulation, it is necessary to reach an understanding with the States regarding reservoir operating limitations." Id., § 231.5.1 (1957) (emphasis added). 63 With respect to the Central Valley Project, the Bureau advised Congress that " '[r]eclamation law . . . recognizes State water law and rights thereunder' " and that "Bureau filings on water are subject to State approval." 95 Cong.Rec. A961 (1949).30 64 Indeed, until the unnecessarily broad language of the Court's opinion in Ivanhoe, both the uniform practice of the Bureau of Reclamation and the opinions of the Court clearly supported petitioners' argument that they may impo e any condition not inconsistent with congressional directive. In holding that the United States was not an indispensable party in Nebraska v. Wyoming, 295 U.S. 40, 55 S.Ct. 568, 79 L.Ed. 1289 (1935), this Court observed: 65 "[T]he Secretary of the Interior, pursuant to the [1902] Act, applied to the state engineer of Wyoming and obtained from him permission . . . to appropriate waters, and was awarded a priority date. . . . All of the acts of the Reclamation Bureau in operating the reservoirs so as to impound and release waters of the river are subject to the authority of Wyoming. 66 * * * * * 67 "The bill alleges, and we know as matter of law [citing § 8 of the 1902 Reclamation Act], that the Secretary and his agents, acting by authority of the Reclamation Act and supplementary legislation, must obtain permits and priorities for the use of water from the State of Wyoming in the same manner as a private appropriator or an irrigation district formed under the state law." Id., at 42-43, 55 S.Ct., at 569. 68 Ten years later, in its final decision in Nebraska v. Wyoming, 325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. 1815 (1945), the Court elaborated on its original observation: 69 "All of these steps make plain that [the Reclamation] projects were designed, constructed and completed according to the pattern of state law as provided in the Reclamation Act. We can say here what was said in Ickes v. Fox, 300 U.S. 82, 57 S.Ct. 412, 81 L.Ed. 525 (1937): 'Although the government diverted, stored and distributed the water, the contention of petitioner that thereby ownership of the water or water rights became vested in the United States is not well founded. Appropriation was made not for the use of the government, but, under the Reclamation Act, for the use of the land owners; and by the terms of the law and of the contract already referred to, the water rights became the property of the land owners, wholly distinct from the property right of the government in the irrigation works. . . . The government was and remained simply a carrier and distributor of the water . . . , with the right to receive the sums stipulated in the contracts as reimbursement for the cost of construction and annual charges for operation and maintenance of the works.' 70 * * * * * 71 "We have then a direction by Congress to the Secretary of the Interior to proceed in conformity with state laws in appropriating water for irrigation purposes. We have a compliance with that direction. . . ." Id., at 613-615, 65 S.Ct., at 1348-49. 72 The United States suggests that, even if the Congress of 1902 intended the Secretary of the Interior to comply with state law, more recent legislative enactments have subjected reclamation projects "to a variety of federal policies that leave no room for state controls on the operation of a project or on the choice of uses it will serve."31 Brief for United States 89. While later Congresses have indeed issued new directives to the Secretary, they have consistently reaffirmed that the Secretary should follow state law in all respects not directly inconsistent with these directives. The Flood Control Act of 1944, 58 Stat. 888, for example, which first authorized the New Melones Dam, provides that it is the "policy of the Congress to recognize the interests and rights of the States in determining the development of watersheds within their borders and likewise their interests and rights in water utilization and control." Perhaps the most eloquent expression of the need to observe state water law is found in the Senate Report on the McCarran Amendment, 43 U.S.C. § 666(a), which subjects the United States to state-court jurisdiction for general stream adjudications: 73 "In the arid Western States, for more than 80 years, the law has been the water above and beneath the surface of the ground belongs to the public, and the right to the use thereof is to be acquired from the State in which it is found, which State is vested with the primary control thereof. 74 * * * * * 75 "Since it is clear that the States have the control of water within their boundaries, it is essential that each and every owner along a given water course, including the United States, must be amenable to the law of the State, if there is to be a proper administration of the water law as it has developed over the years." S.Rep.No. 755, 82d Cong., 1st Sess., 3, 6 (1951). V 76 Because the District Court and the Court of Appeals both held that California could not impose any conditions whatever on the United States' appropriation permit, those courts did not reach the United States' alternative contention that the conditions actually imposed are inconsistent with congressional directives as to the New Melones Dam. Nor did they reach California's contention that the United States is barred by principles of collateral estoppel from challenging the consistency of the permit conditions. Assuming, arguendo, that the United States is still free to challenge the consistency of the conditions, resolution of their consistency may well require additional factfinding. We therefore reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion. 77 Reversed and remanded. 78 Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting. 79 Early in its opinion, the majority identifies the critical issues in this case as to the "meaning and scope" of § 8 of the Reclamation Act of 1902. In quest of suitable answers, the majority launches on an extensive survey of 19th- and 20th-century statutory and judicial precedents that partially delineate the relationship between federal and state law with respect to the conservation and use of the water resources of the Western States. At the end of this Odyssean journey, the conclusion seems to be that under the relevant federal statutes containing the reclamation policy of the United States, the intention of the Congress has been to recognize local and state law as controlling both the "appropriation and distribution" of the water resources that are the object of federal reclamation projects. 80 Straightaway, however, and with obvious reluctance, it is conceded in a footnote that § 8 does not really go so far and that Congress, after all, "did not intend to relinquish total control of the actual distribution of the reclamation water to the States." Ante, at 668 n.21. Where following state law would be inconsistent with other provisions of the Reclamation Act or with congressional directives to the Secretary contained in other statutes, § 8 and local law must give way.1 Otherwise, however, it is insisted that by virtue of § 8, state policy must govern federal projects. The next section of the majority opinion is devoted to defending this conclusion and to explaining why it refuses to follow our prior cases construing § 8 much more narrowly than the present temporal majority finds acceptable. 81 Meanwhile, the opinion has also concluded that because of § 8, the United States may not acquire water rights by appropriation or condemnation except in accordance with state law. If, for example, particular water rights are not subject to condemnation under state law by private interests, neither may they be taken by the United States. This issue, going to the acquisition by the United States of water rights by eminent domain, is not among the questions presented in this case, and the views expressed in this respect are no sounder and no less inconsistent with our prior cases than is the majority's view that the distribution of water developed by federal reclamation projects is to be governed by state law. 82 * Four of the five major cases bearing on the construction of § 8 have arisen out of the Central Valley Reclamation Project, a massively expensive reclamation undertaking which aimed at redistributing the water in California's Central Valley, which the State was unable to finance and which the Federal Government eventually undertook.2 The salient features of the project, which need not be repeated, have been outlined in the Court's cases. United States v. Gerlach Live Stock Co., 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231 (1950); Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958); Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); and City of Fresno v. California, 372 U.S. 627, 83 S.Ct. 996, 10 L.Ed.2d 28 (1963). One of the project's principal components is the Friant Dam, which interrupted the flow of the upper San Joaquin River, the impounded waters being distributed to irrigate lands not theretofore served by San Joaquin water. To supply the needs of the lower river basin, water was imported from the Sacramento River Valley to the north. The difficulty was that Sacramento water was delivered to the San Joaquin some 60 miles below the Friant Dam. The riparian owners and others along this section of the river, the flow of which would at the very least be severely diminished, naturally sought their remedy. 83 In Gerlach, supra, the Court of Claims had made compensation awards to the owners of certain riparian grasslands that had been watered by the seasonal overflow along this section of the river. This overflow would no longer take place. The United States insisted that the project was an undertaking under the commerce power to control navigation and that the Government need not compensate for the destruction of riparian rights. The Court disagreed, concluding that Congress in an exercise of its constitutional power to tax and spend for the general welfare, had elected to proceed under the reclamation laws and to pay for any vested rights taken by the Government: "[W]hether requir d to do so or not, Congress elected to recognize any state-created rights and to take them under its power of eminent domain." 339 U.S., at 739, 70 S.Ct., at 963 (footnote omitted). 84 Since the closing of the Dam would terminate the annual inundation of the lands involved, the inquiry became whether there had been a taking of any water rights defined and recognized by state law. After an extensive inquiry, the Court determined that the Court of Claims had properly understood state law, and the compensation awards were affirmed. 85 The next case before this Court involving the Central Valley Project was Ivanhoe, supra. That case arose out of proceedings in the state courts, required by federal statute, to confirm contracts for the use of water entered into between state irrigation districts and a state water agency, on the one hand, and the United States on the other. The contracts contained provisions against the use of project water on tracts in excess of 160 acres, a provision specified by § 5 of the Reclamation Act of 1902 and substantially re-enacted in the Omnibus Adjustment Act of 1926, 44 Stat. 650, as amended, 70 Stat. 524, 43 U.S.C. § 423e.3 They also contained the 40-year payout provisions provided for in § 9 of the Reclamation Project Act of 1939, 53 Stat. 1193, as amended, 72 Stat. 542, 43 U.S.C. § 485h. The California Supreme Court refused to confirm the contracts because it construed § 8 of the Reclamation Act of 1902 as requiring the contracts to conform to state law and because the 160-acre limitation and the payout provisions were, for separate reasons, contrary to the law of California. This judgment rested in part on the theory that the water rights acquired by the United States were, by virtue of § 8, subject to the normal trust obligations to water users that were imposed by state law and that were inconsistent with the proposed contract provisions.4 As described by the Attorney General of California, who represented the state water districts in this Court, the California Supreme Court reasoned that the water rights needed to perform the contracts could not be acquired by the United States; this was an untenable position, the Attorney General contended, because "never before has it been held that property rights in a state could be endowed with attributes which would prevent the United States from acquiring the rights it needs to accomplish a federal purpose." Brief for Appellants in Ivanhoe Irrigation District v. McCracken, O.T. 1957, Nos. 122-125, p. 21.5 86 This Court unanimously reversed the judgment of the California Supreme Court. It first ruled: "[T]he authority to impose the conditions of the contracts here comes from the power of the Congress to condition the use of federal funds, works, and projects on compliance with reasonable requirements. And . . . if the enforcement of those conditions impairs any compensable property rights, then recourse for just compensation is open in the courts." 357 U.S., at 291, 78 S.Ct., at 1183. The Court also rejected the argument that § 8 required the Secretary to follow state law that was inconsistent with § 5. As the Court understood § 8, "it merely requires the United States to comply with state law when, in the construction and operation of a reclamation project, it becomes necessary for it to acquire water rights or vested interests therein." 357 U.S., at 291, 78 S.Ct., at 1183. (Emphasis added.) The United States would be obliged to pay for any water rights which were vested under state law and which it took, "[b]ut the acquisition of water rights must not be confused with the operation of federal projects." Ibid. (Emphasis added.) The Court could find nothing in § 8 that "compels the United States to deliver water on conditions imposed by the State," 357 U.S., at 292, 78 S.Ct., at 1184 (emphasis added), and quoted with approval from Nebraska v. Wyoming, 325 U.S. 589, 615, 65 S.Ct. 1332, 1349, 89 L.Ed. 1815 (1945): "We do not suggest that where Congress has provided a system of regulation for federal projects it must give way before an inconsistent state system." Accordingly, the Court held that § 8 did not require the Secretary to ignore § 5, the provisions of which had been national policy for over 50 years. 87 Like Gerlach, the Dugan and Fresno cases involved the consequences of the Friant Dam on those dependent on the first 60 miles of the San Joaquin downstream from the project. These cases arose from the judgment of the Court of Appeals for the Ninth Circuit entered in a suit brought by water-right claimants below the Friant Dam, including the city of Fresno, for an injunction to prevent the storing and diverting of water at the Dam until a satisfactory remedy for the deprivation of their rights had been achieved. State v. Rank, 293 F.2d 340 (1961). The defendants were local officials of the United States Reclamation Bureau, a number of irrigation and utility districts, and later the United States itself. The District Court overruled the claim that the suit was an unconsented suit against the United States and ordered that the injunction issue unless the Government effected a "physical solution" adequate to satisfy plaintiffs' water rights, which it held the United States was obligated to respect. The Court of Appeals dismissed the United States from the action and then inquired whether the suit against the officials and the districts was also a suit against the United States. This depended in the first instance on whether these officers were acting within their statutory and constitutional authority. If they were not, the suit could go forward. Plaintiffs contended, among other things, that Congress had not conferred any right to condemn water rights along this stretch of the river and that in any event plaintiffs had rights under California's county-of-origin and watershed-of-Oregon statutes that were not subject to condemnation under state law and hence, pursuant to § 8, were not seizable by the United States.6 88 The Court of Appeals rejected the argument based on § 8 and state law. Section 7 of the original Reclamation Act had authorized the Secretary to acquire any rights necessary to carry out the provisions of the Act and to do so by purchase or by condemnation under judicial process. Moreover, in expressly authorizing the Central Valley Project in 1937, the Rivers and Harbors Act, 50 Stat. 850, provided that the Secretary could "acquire by proceedings in eminent domain, or otherwise, all lands, rights-of-way, water rights, and other property necessary for said purposes . . .." The Court of Appeals thus found ample authority for the condemnation or taking of the plaintiffs' rights and held that, even if California law gave these plaintiffs a preference over the United States and the other defendants as to rights to appropriate surplus waters, it did not follow that the preferred rights could not be taken by the United States. "While a state can bestow property rights on its citizens which the United States must respect, it cannot take from the United States the power to acquire those rights." 293 F.2d, at 354. Although holding that the United States had ample power to seize the water rights at issue, the Court of Appeals went on to hold, nevertheless, that no taking in the legal sense had transpired; the officials were made trespassers, were acting outside their authority, and could be enjoined. Absent condemnation of vested rights, § 8 required the project to respect those rights in operating the project. Hence, an injunction was warranted. 89 The case was brought to this Court where the public officers continued to claim that they were acting legally and were not subject to suit. Plaintiffs argued, among other things, that their riparian rights could not be taken by condemnation for purposes of use outside the county of origin or the watershed of origin. Brief for Respondents in Delano-Earlimart Irrig. Dist. v. Rank, O.T. 1962, No. 115, pp. 30-41. This Court in Dugan, however, unanimously agreed with the Court of Appeals that the United States had ample statutory authority to take the asserted rights. "The question was specifically settled in Ivanhoe Irrigation District v. McCracken . . ., where we said that such rights could be acquired by the payment of compensation 'either through condemnation or, if already taken, through action of the owners in the courts.' " 372 U.S., at 619, 83 S.Ct., at 1006. Furthermore, the Court noted: "[T]he power to seize which was granted here had no limitation placed upon it by the Congress, nor did the Court of Appeals bottom its conclusion on a finding of any limitation. [The United States had] plenary power to seize the whole of respondents' rights in carrying out the congressional mandate . . .." Id., at 622-623, 83 S.Ct., at 1007-08. 90 Disagreeing, however, with the Court of Appeals as to the taking issue, the Court ruled that the power to take had actually been exercised, and properly so, and that the suit against the officers was therefore a suit against the United States and should be dismissed. The remedy of the plaintiffs, as it was in Gerlach, was in the Court of Claims. 91 The Court also granted the petition for cert orari filed by the city of Fresno and dealt separately with the city's case. 372 U.S. 627, 83 S.Ct. 996, 10 L.Ed.2d 28 (1963). Fresno, as a riparian, overlying landowner, had vested rights to underground waters from a source fed by the San Joaquin River. These rights were threatened by the anticipated diminishment of the San Joaquin below Friant Dam. Among other things, the city claimed that the water necessary to satisfy its rights was being diverted to areas beyond the limits permitted by the county-of-origin and watershed-of-origin statutes of the State of California; under these statutes the city's rights were preferred and were not subject to condemnation under § 8 and state law.7 Opinions of the Attorney General of California were submitted in support of this claim. Brief for Petitioner in City of Fresno v. California, O.T. 1962, No. 51, pp. 148-150.8 These claims were essentially those of a riparian owner to the maintenance of the flow of the San Joaquin River. Fresno also claimed, however, that under the county-of-origin and watershed-of-origin statutes, it had a prior right to Friant Dam water in an amount necessary to satisfy its needs and that project water could not be delivered beyond the limits prescribed by these statutes until the city's needs were met.9 Section 8, it was argued, required the United States to respect the city's rights under these statutes. The city also claimed a statutory priority for municipal uses, as well as the right to purchase project water for less than the price Bureau officials proposed to charge. 92 The Court rejected each of these claims. The United States had authority, despite § 8 and state law, to acquire Fresno's riparian rights, and had done so. To that extent, the city's recourse was in the Court of Claims, as in Dugan. Section 8 "does not mean that state law may operate to prevent the United States from exercising the power of eminent domain to acquire the water rights of others. This was settled in Ivanhoe Irrigation District v. McCracken . . .." 372 U.S., at 630, 83 S.Ct., at 998. Nor did § 8 require "compliance with California statutes relating to preferential rights of counties and watersheds of origin and to the priority of domestic over irrigation uses." 372 U.S., at 629-630, 83 S.Ct., at 998. The more limited role of § 8 "is to leave to state law the definition of the property interests, if any, for which compensation must be made." 372 U.S., at 630, 83 S.Ct., at 998. The Court went on to say that in any event the California watershed and county statutes did not give Fresno the priority claimed and that the claims with respect to a municipal priority and to a lower water price were contrary to § 9 of the Reclamation Project Act of 1939.10 93 Fresno was decided on April 15, 1963, having been argued on January 7 of that year. The opinion and judgment in Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542, were announced on June 3, 1963, the case having been argued for the second time in November 1962. In Arizona, the Special Master had concluded that in choosing between users within each State and in settling the terms of his contracts with them, the Secretary was required to follow state law by virtue of §§ 14 and 18 of the Project Act and by reason of § 8 of the Reclamation Act. The Court expressly disagreed, relying on Ivanhoe and Fresno and saying with respect to § 8: 94 "The argument that § 8 of the Reclamation Act requires the United States in the delivery of water to follow priorities laid down by state law has already been disposed of by this Court in Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958), and reaffirmed in City of Fresno v. California, 372 U.S. 627, 83 S.Ct. 996, 10 L.Ed.2d 28 (1963). In Ivanhoe we held that, even though § 8 of the Reclamation Act preserved state law, that general provision could not override a specific provision of the same Act prohibiting a single landowner from getting water for more than 160 acres. We said: 95 " 'As we read § 8, it merely requires the United States to comply with state law when, in the construction and operation of a reclamation project, it becomes necessary for it to acquire water rights or vested interests therein. But the acquisition of water rights must not be confused with the operation of federal projects. As the Court said in Nebraska v. Wyoming, [325 U.S.,] at 615, 65 S.Ct. at page 1349: "We do not suggest that where Congress has provided a system of regulation for federal projects it must give way before an inconsistent state system." . . . We read nothing in § 8 that compels the United States to deliver water on conditions imposed by the State.' [357 U.S.,] at 291-292, 78 S.Ct. at 1183-1184. 96 "Since § 8 of the Reclamation Act did not subject the Secretary to state law in disposing of water in that case, we cannot, consistently with Ivanhoe, hold that the Secretary must be bound by state law in disposing of water under the Project Act." 373 U.S., at 586-587, 83 S.Ct., at 1491. 97 The Court thus held again that § 8 did not require the Secretary to follow state law in distributing project water because § 8 dealt with acquisition, not distribution, of reclamation water. II 98 The majority reads Ivanhoe as holding that § 5 and similar explicit statutory directives are exceptions to § 8's otherwise controlling mandate that state law must govern both the acquisition and distribution of reclamation water. This misinterprets that opinion. It is plain enough that in response to the argument that § 8 subjected the § 5 contract provisions to the strictures of state law, the Court squarely rejected the submission on the ground that § 8 dealt only with the acquisition of water rights and required the United States to respect the water rights that were vested under state law. That the Court might have saved the § 5 provision on a different and narrower ground more acceptable to the present Court majority does not render the ground actually employed any less of a holding of the Court or transform it into the discardable dictum the majority considers it to be. 99 It is also beyond doubt that both Fresno and Arizona considered Ivanhoe to contain a holding that § 8 was limited to water-right acquisition and did not reach the distribution of reclamation water. But whatever the proper characterization of the Court's pronouncement in Ivanhoe might be, Fresno itself held that in distributing project water the United States, despite state law and § 8, not only was not bound by the municipal-preference laws of California, which were contrary to a specific federal statute, but also could export water from the watershed without regard to the county-and watershed-of-origin statutes. The Court held the latter even though no provision of federal law forbade the federal officers from complying with the preferences assertedly established by those state laws. 100 Much the same is true of Arizona, where the Court heard two arguments totaling over 22 hours and considered voluminous briefs that dealt with a variety of subjects, including the important issue of the impact of § 8 on the Secretary's freedom to contract for the distribution of water. In its opinion, the Court not only dealt with both Ivanhoe and Fresno as considered holdings that § 8 did not bear on distribution rights, but also expressly disagreed with its Special Master and squarely rejected claims that the Secretary could not contract for the sale of water except in compliance with the priorities established by state law. Nor, as suggested by the majority, is there anything in the Arizona case to suggest that the Court arrived at its conclusion by factors peculiar to the statutes authorizing the project. The particular terms of the Secretary's contracts were not authorized or directed by any federal statute. The Court's holding that he was free to proceed as he did was squarely premised on the proposition that § 8 did not control the distribution of the project water. 101 The short of the matter is that no case in this Court, until this one, has construed § 8 as the present majority insists that it be construed. All of the relevant cases are to the contrary. 102 Our cases that the Court now discards are relatively recent decisions dealing with an issue of statutory construction and with a subject matter that is under constant audit by Congress. As the majority suggests, reclamation project authorizations are normally accompanied by declarations that the provisions of the reclamation laws shall be applicable. Here, the New Melones Dam, which was and is a part of the Central Valley Project, was first authorized in 1944, 58 Stat. 901, and again in 1962, 76 Stat. 1191. The latter legislation provided for construction of the Dam by the Army Corps of Engineers but for operation and maintenance by the Secretary of the Interior "pursuant to the Federal reclamation laws . . .." Those laws included § 8, which by that time had been construed in Ivanhoe as set out above. There were no amendments to § 8, which is now codified in 43 U.S.C. §§ 372 and 383, when the project was reauthorized in 1962. 103 Furthermore, in amending the reclamation laws in 1972, Congress provided that except as otherwise indicated in the amendments, "the provisions of the Federal reclamation laws, and Acts amendatory thereto, are continued in full force and effect." 43 U.S.C. § 421d (1970 ed., Supp. V). More specifically, § 421g stated that nothing in the amendments "shall be construed to repeal or limit the procedural and substantive requirements of sections 372 and 383 of this title." There is no hint of disagreement with the construction placed on these sections in Ivanhoe, Dugan, Fresno, and Arizona. 104 Only the revisionary zeal of the present majority can explain its misreading of our cases and its evident willingness to disregard them. Congress has not disturbed these cases, and until it does, I would respect them. In contrast to Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), there is no problem here of reconciling inconsistent lines of cases or of correcting an err r with respect to an issue not briefed or argued and raised by the Court sua sponte. All of the relevant cases are contrary to today's holding, and in none of them was the Court on a frolic of its own. The courts below were quite right in holding that the State was without power under the reclamation laws to impose conditions on the operation of the New Melones Dam and on the distribution of project water developed by that Dam, which would be undertaken with federal funds. III 105 Even less explicable is the majority's insistence on reaching out to overturn the holding of this Court in Fresno, which reflected the decision in Dugan and was in turn grounded on a similar approach in Ivanhoe, that state law may not restrict the power of the United States to condemn water rights. The issue was squarely presented and decided in both Dugan and Fresno. In both cases it was claimed—and State Attorney General's opinions supported the claim—that some of the rights at issue were not condemnable under state law and that § 8 therefore forbade their taking by the Federal Government. In both cases, the claim was rejected by this Court, just as it was in the Court of Appeals. Without briefing and argument, the majority now discards these holdings in a footnote. See ante, at 671-672, n. 24. 106 Section 7 of the Reclamation Act, now 43 U.S.C. § 421, authorizes the Secretary to acquire any rights or property by purchase or condemnation under judicial process, and the Attorney General is directed to institute suit at the request of the Secretary. Also, as Mr. Justice Jackson explained for the Court in Gerlach, 339 U.S., at 735 n. 8, 70 S.Ct., at 960, when the Central Valley Project was authorized in 1937, the Secretary of the Interior was "authorized to acquire 'by proceedings in eminent domain, or otherwise, all lands, rights-of-way, water rights, and other property necessary for said purposes . . ..' 50 Stat. 844, 850." Furthermore, § 10 of the Reclamation Act, now 43 U.S.C. § 373, authorizes the Secretary to perform any and all acts necessary to carry out the Act. As the Court said in United States v. Buffalo Pitts Co., 234 U.S. 228, 233, 34 S.Ct. 840, 843, 58 L.Ed. 1290 (1914), "the government was authorized by § 7 of the act of June 17, 1902, ch. 1093, 32 Stat. 388, under which this improvement was being made to acquire any property necessary for the purpose and if need be to appropriate it." And in Henkel v. United States, 237 U.S. 43, 50, 35 S.Ct. 536, 539, 59 L.Ed. 831 (1915), the Court, referring to §§ 7 and 10, said: 107 "In carrying out the purposes of the act, the Secretary of the Interior is authorized to acquire any rights or property necessary for that purpose, and to acquire the same, either by purchase or by condemnation. He is specifically authorized to perform any and all acts necessary and proper for the purpose of carrying into effect the provisions of the act. Authority could hardly have been conferred in more comprehensive terms, and we do not believe it was the intention of Congress, because of the Indians' right of selection of lands under the circumstances here shown, to reserve such lands from the operation of the act. To do so might defeat the reclamation projects which it was evidently the purpose of Congress to authorize and promote." 108 Never has there been a suggestion in our cases that Congress, by adopting § 8, intended to permit a State to disentitle the Government to acquire the property necessary or appropriate to carry out an otherwise constitutionally permissible and statutorily authorized undertaking. Gerlach, Ivanhoe, Dugan and Fresno are to the contrary. 109 The Court's "disavowal" of our prior cases and of the Government's power to condemn state water rights, all without briefing and argument, is a gratuitous effort that I do not care to join and from which I dissent. IV 110 Although I do not join the Court in reconstruing the controlling statutes as it does the Court's work today is a precedent for "setting things right" in the area of statutory water law so as to satisfy the views of a current Court majority. And surely the dicta with which the Court's opinion is laced today deserve no more or no less respect than what it has chosen to label as dicta in past Court decisions. Of course, the matter is purely statutory and Congress could easily put an end to our feuding if it chose to make it clear that local authorities are to control the spending of federal funds for reclamation projects and to control the priorities for the use of water developed by federal projects. 1 A. Golse, Reclamation in the United States 6 (2d ed. 1961). The author was at the time of publication the Chief Engineer of the California Department of Water Resources and had been formerly Assistant Commissioner of the United States Bureau of Reclamation. 2 Id., at 6-12. 3 Id., at 12-13. Private development has continued to be a major contributor to the reclamation of the West. From 1902 to 1950, federal reclamation projects increased the am unt of irrigated land by 5,700,000 acres. This still only accounted, however, for approximately one-fifth of the irrigated acreage in the 17 Western States covered by the Reclamation Act of 1902. During the same period from 1902 to 1950, private reclamation opened up over 10,000,000 acres for irrigation. Id., at 14, Table 1-1. 4 U.S. Department of Agriculture, Climate and Man 204 (1941). For a general description of water conditions in California and the Californians' answer to them, see E. Cooper, Aqueduct Empire (1968). 5 Section 8 of the 1902 Reclamation Act has been addressed in only six cases decided by this Court. See Nebraska v. Wyoming, 295 U.S. 40, 55 S.Ct. 568, 79 L.Ed. 1289 (1935); Nebraska v. Wyoming, 325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. 1815 (1945); United States v. Gerlach Live Stock Co., 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231 (1950); Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958); City of Fresno v. California, 372 U.S. 627, 83 S.Ct. 996, 10 L.Ed.2d 28 (1963); Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963). 6 The New Melones Dam was authorized by the Flood Control Acts of 1944 and 1962, 58 Stat. 901, 76 Stat. 1191. As in the case of all other reclamation projects, Congress specifically directed that the Dam be constructed and operated "pursuant to the Federal reclamation laws," 76 Stat. 1191, the principal one of which is the Reclamation Act of 1902. 7 Under California law any person who wishes to appropriate water must apply for a permit from the State Water Resources Control Board. Cal.Water Code Ann. §§ 1201 and 1225 (West 1971). The Board is to issue a permit only if it determines that unappropriated water is available and that the proposed use is both "reasonable" and "beneficial" and best serves "the public interest." §§ 1240, 1255, and 1375; Cal.Const., Art. 10, § 2. In determining whether to issue a permit, the Board is to consider not only the planned use of the water but also alternative uses, including enhancement of water quality, recreation, and the preservation of fish and wildlife. Cal.Water Code Ann. §§ 1242.5, 1243, and 1257 (West 1971). The Board can also impose such conditions in the permit as are necessary to insure the "reasonable" and "beneficial" use of the water and to protect "the public interest." §§ 1253 and 1391. 8 Other conditions prohibit collection of water during periods of the year when unappropriated water is unavailable; require that a preference be given to water users in the water basin in which the New Melones Dam is located; require storage releases to be made so as to maintain maximum and minimum chemical concentrations in the San Joaquin River and protect fish and wildlife; require the United States to provide means for the release of excess waters and to clear vegetation and structures from the reservoir sites; require the filing of additional reports and studies; and provide for access to the project site by the State Board and the public. Still other conditions reserve jurisdiction to the Board to impose further conditions on the appropriations if necessary to protect the "beneficial use" of the water involved. The United States did not challenge any of the conditions under state law, but instead filed the federal declaratory action that is now before us. 9 Dr. Elwood Mead was Chief of Irrigation Investigations for the Department of Agriculture at the time of his treatise's publication. Dr. Mead was a principal witness before Congress during the hearings on the Reclamation Act of 1902 and later became Commissioner of Reclamation, ser ing in that position from 1924 until his death in 1936. Three Western States have adopted constitutional provisions asserting absolute ownership over the waters in their States. See Colo. Const., Art. 16, § 5; N.D. Const., Art. 17, § 210; Wyo. Const., Art. 8, § 1. Other States have asserted ownership by statute. See, e. g., Idaho Code § 42-101 (1977). The courts of these States have upheld these provisions on the ground that the States gained absolute dominion over their nonnavigable waters upon their admission to the Union. See, e. g., Stockman v. Leddy, 55 Colo. 24, 27-29, 129 P. 220, 221-222 (1912); Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 P. 258 (1900). 10 Senator Stewart, the most vocal of the 1866 Act's supporters, noted during debate that § 9 "confirms the ights to use of the water . . . as established by local law and the decisions of the courts. In short, it proposes no new system, but sanctions, regulates, and confirms a system to which the people are devotedly attached." Cong. Globe, 39th Cong., 1st Sess., 3227 (1866) (emphasis added). 11 Four years later, in the Act of July 9, 1870, 16 Stat. 218, Congress reaffirmed that occupants of federal public land would be bound by state water law, by providing that "all patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued water rights." The effect of the 1866 and 1870 Acts was not limited to rights previously acquired. "They reach[ed] into the future as well, and approve[d] and confirm[ed] the policy of appropriation for a beneficial use, as recognized by local rules and customs, and the legislation and judicial decisions of the arid-land states, as the test and measure of private rights in and to the non-navigable waters on the public domain." California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 155, 55 S.Ct. 725, 728, 79 L.Ed. 1356 (1935). 12 Mr. Justice Sutherland had grown up in Utah and was very familiar with the Westerners' efforts to tame the desert. Elected to Congress in 1900, Sutherland was assigned to the Committee on Irrigation. According to his biographer, Sutherland's "intimate knowledge of the water problem in the West enabled him to make a conspicuous contribution" in this assignment. J. Paschal, Mr. Justice Sutherland: A Man Against the State 43 (1951). Sutherland was one of the principal participants in the formulation of the Reclamation Act of 1902. Id., at 44. 13 See 29 Cong.Rec. 1948 (1897) (discussion by Cong. Lacey); id., at 1955 (discussion by Cong. McRae). 14 Ibid. And see Report to the Secretary of the Interior on the Blue Water Land & Irrigation Co. by the Acting Commissioner of the General Land Office, Nov. 23, 1895. 15 Congress' intent was reflected in contemporary administrative decisions. According to the Department of the Interior, the 1891 Act "relegate[d] the matter of appropriation and control of all natural sources of water supply in the state of California to the authority of that state. The act of March 3, 1891, deals only with the right of way over the public lands to be used for the purposes of irrigation, leaving the disposition of the water to the state." H. H. Sinclair, 18 I.D. 573, 574 (1894). In a circular of the same period explaining the 1891 Act, the Interior Department noted that the "control of the flow and use of the water is . . . a matter exclusively under State or Territorial control, the matter of administration within the jurisdiction of this Department being limited to the approval of maps carrying the right of way over the public lands." 18 I.D. 168, 169-170 (1894). 16 "A reservoir site without water is entirely useless. The water is the particular thing in question, and the waters are controlled by the States through which they flow, and not by the United States of America. These are surface waters, the waters of small streams not navigable, and the States control them. * * * * * "[T]he United States does not control the water. It controls only the reservoir sites in which the water may be collected. The water is under the control of the States." 29 Cong.Rec. 1948-1949 (1897) (Cong. Lacey). "It is the State alone that owns and controls the water, under the constitution of our States; and I suppose that is true under the laws of every State." Id., at 1951 (Cong. Bell). "The amendment which has been proposed by the gentleman from Illinois [Mr. Cannon], and adopted, really serves no purpose, because it merely reenacts the existing law. It would be the law even if the act of 1891 were not in existence. The waters belong to the States. The United States Government has always recognized that, and the States have enacted legislation directly controlling the use of the waters." Id., at 1952 (Cong. Shafroth). Only Congressman Terry, who unsuccessfully opposed the bill, suggested the contrary. In his view, the Federal Government could use its control of the land to regulate the price of the water stored. See id., at 1949-1950. 17 See A. Golze, Reclamation in the United States 9-23 (1961). 18 "The pioneer settlers on the arid public domain chose their homes along streams from which they could thems lves divert the water to reclaim their holdings. Such opportunities are practically gone. There remain, however, vast areas of public land which can be made available for homestead settlement, but only by reservoirs and main-line canals impracticable for private enterprise. These irrigation works should be built by the National Government. The lands reclaimed by them should be reserved by the Government for actual settlers, and the cost of construction should so far as possible be repaid by the land reclaimed. The distribution of the water, the division of the streams among irrigators, should be left to the settlers themselves in conformity with State laws and without interference with those laws or with vested rights." H.R.Doc. No. 1, 57th Cong., 1st Sess. XXVIII (1901) (emphasis added). 19 In the House, § 8 was amended so as to provide, rather than that state law "shall govern and control," that "the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with" state law "relating to the control, appropriation, use, or distribution of water." According to Representative Newlands, who had introduced the original bill in the House, the original bill was "identical in its provisions, though differing somewhat in phraseology," to the ultimate Act. 35 Cong.Rec. 6673 (1902). The bill may have been amended to make clear the congressional intent that state law could not override the specific directives of Congress that water rights would be appurtenant to the land and would not be sold to tracts of greater than 160 acres. See id., at 6674. See generally n. 21, infra. 20 Earlier in the debates, Representative Mondell observed that under the Reclamation Act the Secretary of the Interior would only have the power to condemn water rights in compliance with state law. "In some of the arid States . . . water rights can be condemned for the purposes contemplated in this bill, and in such States the Secretary of the Interior would have as much authority to condemn as any other individual, and no more. Where the State laws do not recognize the right to condemn property for the purposes contemplated in the act, it will not be condemned, and there is the end of it . . . . [W]here the State laws do not authorize condemnation, and projects can not be carried on without condemnation, those particular projects will not be undertaken, and others, where there is no such obstacle, will." 35 Cong.Rec. 6680 (1902). In response to Representative Mondell's statement, Representative Ray asked whether he had "forgotten . . . that they have in this bill a provision which purports to confer upon the Secretary of the Interior power to condemn water and water rights for the purpose of carrying out this scheme." Representative Mondell responded that the power existed only "[w]herever the State law gives him authority to do so." Id., at 6688. Representative Sutherland also noted that the "Secretary must proceed in the condemnation proceedings under the laws of the State." Id., at 6769. 21 Congress did not intend to relinquish total control of the actual distribution of the reclamation water to the States. Congress provided in § 8 itself that the water right must be appurtenant to the land irrigated and governed by beneficial use, and in § 5 Congress forbade the sale of reclamation water to tracts of land of more than 160 acres. It is conceivable, of course, that Congress may not have intended to actually override state law when inconsistent with these other provisions but instead only intended to exercise a veto power over any reclamation project that, because of state law, could not be operated in compliance with these provisions. A project simply would not be built by the Federal Government if such a conflict existed. As the House Report explained the workings of the 160-acre limitation and the appurtenance requirement: "The character of the water rights contemplated being clearly defined, the Secretary of the Interior would not be authorized to begin construction of works for the irrigation of lands in any State or Territory until satisfied that the laws of said State or Territory fully recognized and protected water rights of the character contemplated. This feature of the bill will undoubtedly tend to uniformity and perfection of water laws throughout the region affected." H.R.Rep.No. 794, 57th Cong., 1st Sess., 6 (1902). Some support for this interpretation of the congressional intent can also be found in contemporaneous administrative material of the Department of the Interior. See, e. g., Department of the Interior, Proceedings of First Conference of Engineers of the Reclamation Service 103 (1904) ("Before the filing of the first notice of appropriation of water in any State the matter of the advisability of making such filing should be submitted to the chief engineer, because some of the State laws may be such that it is impossible to comply with them in conducting operations under the reclamation act"); Department of the Interior, Second Annual Report of the Reclamation Service 33 (1904) ("[C]areful study must be made of the effect of State laws upon each project under consideration in that particular State. It appears probable that in some of the States radical changes in the laws must be made before important projects can be undertaken"). In previous cases interpreting § 8 of the 1902 Reclamation Act, however, this Court has held that state water law does not control in the distribution of reclamation water if inconsistent with other congressional directives to the Secretary. See Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958); City of Fresno v. California, 372 U.S. 627, 83 S.Ct. 996, 10 L.Ed.2d 28 (1963). We believe that this reading of the Act is also consistent with the legislative history and indeed is the preferable reading of the Act. See n. 25, infra. Whatever the intent of Congress with respect to state control over the distribution of water, however, Congress in the 1902 Act intended to follow state law as to appropriation of water and condemnation of water rights. Under the 1902 Act, the Secretary of the Interior was authorized in his discretion to "locate and construct" reclamation projects. As the legislative history of the 1902 Act convincingly demonstrates, however, if state law did not allow for the appropriation or condemnation of the necessary water, Congress did not intend the Secretary of the Interior to initiate the project. Subsequent legislation authorizing a specific project may by its terms signify congressional intent that the Secretary condemn or be permitted to appropriate the nec ssary water rights for the project in question, but no such legislation was considered by the Court of Appeals in its opinion in this case. That court will be free to consider arguments by the Government to this effect on remand. See Part V, infra. 22 In addition to the legislation discussed in Part II of this opinion, Congressman Mondell also cited to the National Forest Act of 1897, 30 Stat. 36, "provid[ing] for the use of waters on such reserves 'under the laws of the State wherein such forest reservations are situated.' " 35 Cong.Rec. 6679 (1902). 23 Opponents of the 1902 Reclamation Act also expressed doubt whether Congress could constitutionally override the States' regulation of waters within their borders: "Again, to be clear, the United States as to its public lands in a State is only an owner with the rights of private ownership, the same as those of an individual. When territory is admitted into the Union as a State the sovereignty of the United States is surrendered to the new State and the sovereignty of the State attaches and becomes paramount as to every foot of soil, unless expressly reserved to the General Government, and subject to the right of that Government to condemn for a public use of the United States necessary to the performance of its governmental functions or to its preservation." H.R.Rep.No. 794, 57th Cong., 1st Sess., pt. 2 (Minority Views), 16-17 (1902). See also id., at 8; 35 Cong.Rec. 6687 (1902) (Cong. Ray). 24 "Section 9(c) of the Reclamation Project Act of 1939 . . . provides: 'No contract relating to municipal water supply or miscellaneous purposes . . . shall be made unless, in the judgment of the Secretary [of the Interior], it will not impair the efficiency of the project for irrigation purposes.' . . . It therefore appears clear that Fresno has no preferential rights to contract for project water, but may receive it only if, in the Secretary's judgment, irrigation will not be adversely affected." 372 U.S., at 630-631, 83 S.Ct., at 998. The Court also concluded in a separate portion of its opinion: "§ 8 does not mean that state law may operate to prevent the United States from exercising the power of eminent domain to acquire the water rights of others. . . . Rather, the effect of § 8 in such a case is to leave to state law the definition of the property interests, if any, for which compensation must be made." Id., at 630, 83 S.Ct., at 998. Because no provision of California law was actually inconsistent with the exercise by the United States of its power of eminent domain, this statement was dictum. It also might have been apparent from examination of the congressional authorization of the Central Valley Project that Congress intended the Secretary to have the power to condemn any necessary water rights. We disavow this dictum, however, to the extent that it implies that state law does not control even where not inconsistent with such expressions of congressional intent. 25 As discussed earlier in n.21, it is at least arguable that Congress did not intend to override state water law when it was inconsistent with congressional objectives such as the 160-acre limitation, but intended instead to enforce those objectives simply by the Secretary's refusal to approve a project which could not be built or operated in accordance with them. This intent, however, is not clear, and Congress may have specifically amended § 8 to provide that state law could not override congressional directives with respect to a reclamation project. See n.19, supra. Ivanhoe and City of Fresno read the legislative history of the 1902 Act as evidencing Congress' intent that specific congressional directives which were contrary to state law regulating distribution of water would overri e that law. Even were this aspect of Ivanhoe res nova, we believe it to be the preferable reading of the Act. 26 Part of the Court's opinion in Ivanhoe indeed would appear to directly support petitioners' position. Thus, the Court concluded that under § 8 of the 1902 Reclamation Act the United States must "comply with state law when, in the construction and operation of a reclamation project, it becomes necessary for it to acquire water rights or vested interests therein." 357 U.S., at 291, 78 S.Ct., at 1183 (emphasis added). 27 The State of California was an appellant in Ivanhoe and supported the decision of the Court of Appeals for the Ninth Circuit in City of Fresno. 28 The Special Master agreed with the States that they had such power under § 14 of the Project Act, 43 U.S.C. § 617m, which incorporated the Reclamation Act of 1902, and § 18 of the Project Act, 43 U.S.C. § 617q, which provided that nothing in the Act should be construed "as interfering with such rights as the States had on December 21, 1928, either to the waters within their borders or to adopt such policies and enact such laws as they deem necessary with respect to the appropriation, control, and use of waters within their borders." The Court disagreed, with three Justices dissenting. 29 Even though concluding that the power of the States was so limited, the Court went on to note that the Project Act "plainly allows the States to do things not inconsistent with the Project Act or with federal control of the river." 373 U.S., at 588, 83 S.Ct., at 1491. 30 A remarkably similar history of administrative construction and advice to Congress was given weight in United States v. Gerlach Live Stock Co., 339 U.S., at 735-736, 70 S.Ct., at 960-961. Considerable weight must be accorded to these interpretations of the Reclamation Act by the agency charged with its operation. See Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965); Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971); General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). 31 It is worth noting that the original Reclamation Act of 1902 was not devoid of such directives. That Act provided that the charges for water should "be determined with a view of returning to the reclamation fund th estimated cost of construction of the project, and . . . be apportioned equitably" and that water rights should "be appurtenant to the land irrigated, and beneficial use . . . the basis, the measure, and the limit of the right"; the Act also forbade sales to tracts of more than 160 acres. Despite these restraints on the Secretary, however, it is clear from the language and legislative history of the 1902 Act that Congress intended state law to control where it was not inconsistent with the above provisions. 1 Section 8 of the Reclamation Act, 32 Stat. 390, now 43 U.S.C. §§ 372, 383, provided: [N]othing in this Act shall be construed as affecting or intended to affect or to in any way interfere with t e laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, That the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right." 2 As the United States said in its brief in Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958), the Central Valley Project was "the largest single undertaking pursuant to the federal reclamation program. The project was adopted by the United States at the instance of the State of California, at an estimated cost to the United States of more than $800,000,000." Brief for United States as Amicus Curiae, O.T. 1957, Nos. 122-125, p. 28. 3 Section 5 of the Reclamation Act, 32 Stat. 389, provided in pertinent part: "No right to the use of water for land in private ownership shall be sold for a tract exceeding one hundred and sixty acres to any one landowner, and no such sale shall be made to any landowner unless he be an actual bona fide resident on such land, or occupant thereof residing in the neighborhood of said land, and no such right shall permanently attach until all payments therefor are made." 4 The issue posed was revealed by the brief for the United States in Ivanhoe : "The California Supreme Court also erred in upholding the claim of denial of just compensation. Chief Justice Gibson correctly stated in his dissenting opinion below that 'if there is any state-recognized vested right which, in fact, conflicts with the acreage limitation, that right may be taken and compensated for by the federal government under its power of eminent domain' (AJS 73, 79; cf. p. 48). The trust declared and applied by the majority of the court cannot have the effect of imposing a state restriction on the federal power of eminent domain. That power 'is inseparable from sovereignty' because it permits 'acquisition of the means or instruments by which alone governmental functions can be performed.' 'It can neither be enlarged nor diminished by a State. Nor can any State prescribe the manner in which it must be exercised. The consent of a State can never be a condition precedent to its njoyment.' Kohl v. United States, 91 U.S. 367, 371-372, 374, 23 L.Ed. 449. It makes no difference whether the property 'sought to be condemned is held . . . in trust instead of in fee.' United States v. Carmack, 329 U.S. 230, 239, 67 S.Ct. 252, 256, 91 L.Ed. 209. The beneficiaries may press their claims to compensation." Brief for United States as Amicus Curiae, O.T. 1957, Nos. 122-125, p. 56. 5 The California Attorney General's analysis of the California Supreme Court's opinion is to be found in his Brief for Appellants 54-60. 6 As the Court of Appeals explained, one of the three reasons submitted by the riparian owners for the lack of authority to condemn on the part of the United States was as follows: "The third contention of the plaintiffs is that California's County of Origin and Watershed of Origin statutes . . . (which under § 8 of the Reclamation Act . . . the United States is bound to respect), prevent diversion of waters of the San Joaquin beyond its watershed until the rights of these plaintiffs have been satisfied; that to condemn the rights of these plaintiffs for the purpose of such diversion is to disregard California law contrary to § 8." 293 F.2d, at 354. 7 Question 3 of Fresno's petition for certiorari specifically posed the issue whether the United States "can take percolating underground waters . . . by condemnation or eminent domain for agricultural use in areas outside the county and watershed of origin." Pet. for Cert., O.T. 1962, No. 51, p. 6. 8 The State Attorney General's opinion submitted was in relevant part: " 'The legislative background of the priority makes it difficult to conceive that the Legislature intended that the authority could destroy the priority b[y] condemnation. Since the priority exists only as against the authority, such a construction would completely destroy the effect of Section 11460 and make its enactment an idle gesture.' " Brief for Petitioner, O.T. 1962, No. 51, pp. 148-149. 9 The dual nature of Fresno's claim, first as a riparian owner with vested rights to percolating water, and second as a municipality claiming watershed preference under state law to project-developed water, is made clear in 293 F.2d, at 351-352, 360-361. 10 The usual rule in this Court is that when two independent reasons are given to support a judgment, "the ruling on neither is obiter, but each is the judgment of the court and of equal validity with the other." Union Pacific R. Co. v. Mason City & Fort Dodge R. Co., 199 U.S. 160, 166, 26 S.Ct. 19, 20, 50 L.Ed. 134 (1905); United States v. Title Ins. Co., 265 U.S. 472, 486, 44 S.Ct. 621, 623, 68 L.Ed. 1110 (1924). See also Woods v. Interstate Realty Co., 337 U.S. 535, 537, 69 S.Ct. 1235, 1236, 93 L.Ed. 1524 (1949); Massachusetts v. United States, 333 U.S. 611, 623, 68 S.Ct. 747, 754, 92 L.Ed. 968 (1948).

78

438 U.S. 781 98 S.Ct. 3057 57 L.Ed.2d 1114 State of ALABAMA et al.v.Jerry Lee PUGH et al. No. 77-1107. July 3, 1978. PER CURIAM. 1 Respondents, inmates or forme inmates of the Alabama prison system, sued petitioners, who include the State of Alabama and the Alabama Board of Corrections as well as a number of Alabama officials responsible for the administration of its prisons, alleging that conditions in Alabama prisons constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The United States District Court agreed and issued an order prescribing measures designed to eradicate cruel and unusual punishment in the Alabama prison system. The Court of Appeals for the Fifth Circuit affirmed but modified some aspects of the order which it believed exceeded the limits of the appropriate exercise of the court's remedial powers. 559 F.2d 283. 2 Among the claims raised here by petitioners is that the issuance of a mandatory injunction against the State of Alabama and the Alabama Board of Corrections is unconstitutional because the Eleventh Amendment prohibits federal courts from entertaining suits by private parties against States and their agencies. The Court of Appeals did not address this contention, perhaps because it was of the view that in light of the numerous individual defendants in the case dismissal as to these two defendants would not affect the scope of the injunction. There can be no doubt, however, that suit against the State and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such a suit. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Worcester County Trust Co. v. Riley, 302 U.S. 292, 58 S.Ct. 185, 82 L.Ed. 268 (1937). Respondents do not contend that Alabama has consented to this suit, and it appears that no consent could be given under Art. I, § 14, of the Alabama Constitution, which provides that "the State of Alabama shall never be made a defendant in any court of law or equity." Moreover, the question of the State's Eleventh Amendment immunity is not merely academic. Alabama has an interest in being dismissed from this action in order to eliminate the danger of being held in contempt if it should fail to comply with the mandatory injunction.1 Consequently, we grant the petition for certiorari limited to Question 2 presented by petitioners,2 reverse the judgment in part, and remand the case to the Court of Appeals with instructions to order the dismissal of the State of Alabama and the Alabama Board of Corrections from this action. 3 So ordered. 4 Mr. Justice BRENNAN and Mr. Justice MARSHALL dissent. 5 Mr. Justice STEVENS, dissenting. 6 This Court is much too busy to spend its time correcting harmless errors. Nothing more is accomplished by the summary action it takes today.* 7 The Court does not question the propriety of the injunctive relief entered by the District Court and upheld by the Court of Appeals. Striking the State's name from the list of parties will have no impact on the effectiveness of that relief. If the state officer disobey the injunction, financial penalties may be imposed on the responsible state agencies. Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522. The District Court's asserted error did not trouble the Court of Appeals because it has no practical significance. It does not justify the exercise of this Court's certiorari jurisdiction. I respectfully dissent. 1 Respondents contend that petitioners failed to raise the Eleventh Amendment issue in the District Court. The Court held in Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974), however, that "the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court . . . ." 2 "Whether the mandatory injunction issued against the State of Alabama and the Alabama Board of Corrections violates the State's Eleventh Amendment immunity or exceeds the jurisdiction granted federal courts by 42 U.S.C. § 1983." * Surely the Court does not intend to resolve summarily the issue debated by my Brothers in their separate opinions in Hutto v. Finney, 437 U.S. 678, 700, 98 S.Ct. 2565, 2579, 57 L.Ed.2d 522 (BRENNAN, J., concurring), and 708-710 n.6, 98 S.Ct. 2583 n.6 (POWELL, J., concurring in part and dissenting in part).

01

438 U.S. 726 98 S.Ct. 3026 57 L.Ed.2d 1073 FEDERAL COMMUNICATIONS COMMISSION, Petitioner,v.PACIFICA FOUNDATION. No. 77-528. Argued April 18, 19, 1978. Decided July 3, 1978. Rehearing Denied Oct. 2, 1978. See 439 U.S. 883, 99 S.Ct. 227. Syllabus A radio station of respondent Pacifica Foundation (hereinafter respondent) made an afternoon broadcast of a satiric monologue, entitled "Filthy Words," which listed and repeated a variety of colloquial uses of "words you couldn't say on the public airwaves." A father who heard the broadcast while driving with his young son complained to the Federal Communications Commission (FCC), which, after forwarding the complaint for comment to and receiving a response from respondent, issued a declaratory order granting the complaint. While not imposing formal sanctions, the FCC stated that the order would be "associated with the station's license file, and in the event subsequent complaints are received, the Commission will then decide whether it should utilize any of the available sanctions it has been granted by Congress." In its memorandum opinion, the FCC stated that it intended to "clarify the standards which will be utilized in considering" the growing number of complaints about indecent radio broadcasts, and it advanced several reasons for treating that type of speech differently from other forms of expression. The FCC found a power to regulate indecent broadcasting, inter alia, in 18 U.S.C. § 1464 (1976 ed.), which forbids the use of "any obscene, indecent, or profane language by means of radio communications." The FCC characterized the language of the monologue as "patently offensive," though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to the law of nuisance where the "law generally speaks to channeling behavior rather than actually prohibiting it." The FCC found that certain words in the monologue depicted sexual and excretory activities in a particularly offensive manner, noted that they were broadcast in the early afternoon "when children are undoubtedly in the audience," and concluded that the language as broadcast was indecent and prohibited by § 1464. A three-judge panel of the Court of Appeals reversed, one judge concluding that the FCC's action was invalid either on the ground that the order constituted censorship, which was expressly forbidden by § 326 of the Communications Act of 1934, or on the ground that the FCC's opinion was the functional equivalent of a rule, and as such was "overbroad." Another judge, who felt that § 326's censorshi provision did not apply to broadcasts forbidden by § 1464, concluded that § 1464, construed narrowly as it has to be, covers only language that is obscene or otherwise unprotected by the First Amendment. The third judge, dissenting, concluded that the FCC had correctly condemned the daytime broadcast as indecent. Respondent contends that the broadcast was not indecent within the meaning of the statute because of the absence of prurient appeal. Held : The judgment is reversed. Pp. 734-741; 748-750; 761-762; 3046-3047. 181 U.S.App.D.C. 132, 556 F.2d 9, reversed. Mr. Justice STEVENS delivered the opinion of the Court with respect to Parts I-III and IV-C, finding: 1 1. The FCC's order was an adjudication under 5 U.S.C. § 554(e) (1976 ed.), the character of which was not changed by the general statements in the memorandum opinion; nor did the FCC's action constitute rulemaking or the promulgation of regulations. Hence, the Court's review must focus on the FCC's determination that the monologue was indecent as broadcast. Pp. 734-735. 2 2. Section 326 does not limit the FCC's authority to sanction licensees who engage in obscene, indecent, or profane broadcasting. Though the censorship ban precludes editing proposed broadcasts in advance, the ban does not deny the FCC the power to review the content of completed broadcasts. Pp. 735-738. 3 3. The FCC was warranted in concluding that indecent language within the meaning of § 1464 was used in the challenged broadcast. The words "obscene, indecent, or profane" are in the disjunctive, implying that each has a separate meaning. Though prurient appeal is an element of "obscene," it is not an element of "indecent," which merely refers to noncomformance with accepted standards of morality. Contrary to respondent's argument, this Court in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, has not foreclosed a reading of § 1464 that authorizes a proscription of "indecent" language that is not obscene, for the statute involved in that case, unlike § 1464, focused upon the prurient, and dealt primarily with printed matter in sealed envelopes mailed from one individual to another, whereas § 1464 deals with the content of public broadcasts. Pp. 738-741. 4 4. Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children. Pp. 748-750. 5 Mr. Justice STEVENS, joined by THE CHIEF JUSTICE, and Mr. Justice REHNQUIST, concluded in Parts IV-A and IV-B: 6 1. The FCC's authority to proscribe this particular broadcast is not invalidated by the possibility that its construction of the statute may deter certain hypothetically protected broadcasts containing patently offensive references to sexual and excretory activities. Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371. Pp. 742-743. 7 2. The First Amendment does not prohibit all governmental regulation that depends on the content of speech. Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470. The content of respondent's broadcast, which was "vulgar," "offensive," and "shocking," is not entitled to absolute constitutional protection in all contexts; it is therefore necessary to evaluate the FCC's action in light of the context of that broadcast. Pp. 744-748. 8 Mr. Justice POWELL, joined by Mr. Justice BLACKMUN, concluded that the FCC's holding does not violate the First Amendment, though, being of the view that Members of this Court are not free generally to decide on the basis of its content which speech protected by the First Amendment is most valuable and therefore deserving of Fi st Amendment protection, and which is less "valuable" and hence less deserving of protection, he is unable to join Part IV-B (or IV-A) of the opinion. Pp. 761-762. 9 Joseph A. Marino, Washington, D. C., for petitioner. 10 Harry M. Plotkin, Washington, D. C., for respondent Pacifica Foundation. 11 Louis F. Claiborne, Washington, D. C., for respondent United States. 12 Mr. Justice STEVENS delivered the opinion of the Court (Parts I, II, III and IV-C) and an opinion in which THE CHIEF JUSTICE and Mr. Justice REHNQUIST joined (Parts IV-A and IV-B). 13 This case requires that we decide whether the Federal Communications Commission has any power to regulate a radio broadcast that is indecent but not obscene. 14 A satiric humorist named George Carlin recorded a 12-minute monologue entitled "Filthy Words" before a live audience in a California theater. He began by referring to his thoughts about "the words you couldn't say on the public, ah, airwaves, um, the ones you definitely wouldn't say, ever." He proceeded to list those words and repeat them over and over again in a variety of colloquialisms. The transcript of the recording, which is appended to this opinion, indicates frequent laughter from the audience. 15 At about 2 o'clock in the afternoon on Tuesday, October 30, 1973, a New York radio station, owned by respondent Pacifica Foundation, broadcast the "Filthy Words" monologue. A few weeks later a man, who stated that he had heard the broadcast while driving with his young son, wrote a letter complaining to the Commission. He stated that, although he could perhaps understand the "record's being sold for private use, I certainly cannot understand the broadcast of same over the air that, supposedly, you control." 16 The complaint was forwarded to the station for comment. In its response, Pacifica explained that the monologue had been played during a program about contemporary society's attitude toward language and that, immediately before its broadcast, listeners had been advised that it included "sensitive language which might be regarded as offensive to some." Pacifica characterized George Carlin as "a significant social satirist" who "like Twain and Sahl before him, examines the language of ordinary people. . . . Carlin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words." Pacifica stated that it was not aware of any other complaints about the broadcast. 17 On February 21, 1975, the Commission issued a declaratory order granting the complaint and holding that Pacifica "could have been the subject of administrative sanctions." 56 F.C.C.2d 94, 99. The Commission did not impose formal sanctions, but it did state that the order would be "associated with the station's license file, and in the event that subsequent complaints are received, the Commission will then decide whether it should utilize any of the available sanctions it has been granted by Congress."1 18 In its memorandum opinion the commission stated that it intended to "clarify the standards which will be utilized in considering" the growing number of complaints about indecent speech on the airwaves. Id., at 94. Advancing several reasons for treating broadcast speech differently from other forms of expression,2 the Commission found a power to regulate indecent broadcasting in two statutes: 18 U.S.C. § 1464 (1976 ed.), which forbids the use of "any obscene, indecent, or profane language by means of radio communications,"3 and 47 U.S.C. § 303(g), whi h requires the Commission to "encourage the larger and more effective use of radio in the public interest."4 19 The Commission characterized the language used in the Carlin monologue as "patently offensive," though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to those found in the law of nuisance where the "law generally speaks to channeling behavior more than actually prohibiting it. . . . [T]he concept of 'indecent' is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs at times of the day when there is a reasonable risk that children may be in the audience." 56 F.C.C.2d, at 98.5 20 Applying these considerations to the language used in the monologue as broadcast by respondent, the Commission concluded that certain words depicted sexual and excretory activities in a patently offensive manner, noted that they "were broadcast at a time when children were undoubtedly in the audience (i. e., in the early afternoon)," and that the prerecorded language, with these offensive words "repeated over and over," was "deliberately broadcast." Id., at 99. In summary, the Commission stated: "We therefore hold that the language as broadcast was indecent and prohibited by 18 U.S.C. [§] 1464."6 Ibid. 21 After the order issued, the Commission was asked to clarify its opinion by ruling that the broadcast of indecent words as part of a live newscast would not be prohibited. The Commission issued another opinion in which it pointed out that it "never intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it." 59 F.C.C.2d 892 (1976). The Commission noted that its "declaratory order was issued in a specific factual context," and declined to comment on various hypothetical situations presented by the petition.7 Id., at 893. It relied on its "long standing policy of refusing to issue interpretive rulings or advisory opinions when the critical facts are not explicitly stated or there is a possibility that subsequent events will alter them." Ibid. 22 The United States Court of Appeals for the District of Columbia Circuit reversed, with each of the three judges on the panel writing separately. 181 U.S.App.D.C. 132, 556 F.2d 9. Judge Tamm concluded that the order represented censorship and was expressly prohibited by § 326 of the Communications Act.8 Alternatively, Judge Tamm read the Commission opinion as the functional equivalent of a rule and concluded that it was "overbroad." 181 U.S.App.D.C., at 141, 556 F.2d, at 18. Chief Judge Bazelon's concurrence rested on the Constitution. He was persuaded that § 326's prohibition against censorship is inapplicable to broadcasts forbidden by § 1464. However, he concluded that § 1464 must be narrowly construed to cover only language that is obscene or otherwise unprotected by the First Amendment. 181 U.S.App.D.C., at 140-153, 556 F.2d, at 24-30. Judge Leventhal, in dissent, stated that the only issue was whether the Commission could regulate the language "as broadcast." Id., at 154, 556 F.2d, at 31. Emphasizing the interest in protecting children, not only from exposure to indecent language, but also from exposure to the idea that such language has official approval, id., at 160, and n.18, 556 F.2d, at 37, and n. 18, he concluded that the Commission had correctly condemned the daytime broadcast as indecent. 23 Having granted the Commission's petition for certiorari, 434 U.S. 1008, 98 S.Ct. 715, 54 L.Ed.2d 749, we must decide: (1) whether the scope of judicial review encompasses more than the Commission's determination that the monologue was indecent "as broadcast"; (2) whether the Commission's order was a form of censorship forbidden by § 326; (3) whether the broadcast was indecent within the meaning of § 1464; and (4) whether the order violates the First Amendment of the United States Constitution. 24 * The general statements in the Commission's memorandum opinion do not change the character of its order. Its action was an adjudication under 5 U.S.C. § 554(e) (1976 ed.); it did not purport to engage in formal rulemaking or in the promulgation of any regulations. The order "was issued in a specific factual context"; questions concerning possible action in other contexts were expres ly reserved for the future. The specific holding was carefully confined to the monologue "as broadcast." 25 "This Court . . . reviews judgments, not statements in opinions." Black v. Cutter Laboratories, 351 U.S. 292, 297, 76 S.Ct. 824, 827, 100 L.Ed. 1188. That admonition has special force when the statements raise constitutional questions, for it is our settled practice to avoid the unnecessary decision of such issues. Rescue Army v. Municipal Court, 331 U.S. 549, 568-569, 67 S.Ct. 1409, 1419-1420, 91 L.Ed. 1666. However appropriate it may be for an administrative agency to write broadly in an adjudicatory proceeding, federal courts have never been empowered to issue advisory opinions. See Herb v. Pitcairn, 324 U.S. 117, 126, 65 S.Ct. 459, 463, 89 L.Ed. 789. Accordingly, the focus of our review must be on the Commission's determination that the Carlin monologue was indecent as broadcast. II 26 The relevant statutory questions are whether the Commission's action is forbidden "censorship" within the meaning of 47 U.S.C. § 326 and whether speech that concededly is not obscene may be restricted as "indecent" under the authority of 18 U.S.C. § 1464 (1976 ed.). The questions are not unrelated, for the two statutory provisions have a common origin. Nevertheless, we analyze them separately. 27 Section 29 of the Radio Act of 1927 provided: 28 "Nothing in this Act shall be understood or construed to give the licensing authority the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the licensing authority which shall interfere with the right of free speech by means of radio communications. No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication." 44 Stat. 1172-1173. 29 The prohibition against censorship unequivocally denies the Commission any power to edit proposed broadcasts in advance and to excise material considered inappropriate for the airwaves. The prohibition, however, has never been construed to deny the Commission the power to review the content of completed broadcasts in the performance of its regulatory duties.9 30 During the period between the original enactment of the provision in 1927 and its re-enactment in the Communications Act of 1934, the courts and the Federal Radio Commission held that the section deprived the Commission of the power to subject "broadcasting matter to scrutiny prior to its release," but they concluded that the Commission's "undoubted right" to take note of past program content when considering a licensee's renewal application "is not censorship."10 31 Not only did the Federal Radio Commission so construe the statute prior to 1934; its successor, the Federal Communications Commission, has consistently interpreted the provision in the same way ever since. See Note, Regulation of Program Content by the FCC, 77 Harv.L.Rev. 701 (1964). And, until this case, the Court of Appeals for the District of Columbia Circuit has consistently agreed with this construction.11 Thus, for example, in his opinion in Anti-Defamation League of B'nai B'rith v. FCC, 131 U.S.App.D.C. 146, 403 F.2d 169 (1968), cert. denied, 394 U.S. 930, 89 S.Ct. 1190, 22 L.Ed.2d 459. Judge Wright forcefully pointed out that the Commission is not prevented from canceling the license of a broadcaster who persists in a course of improper programming. He explained: 32 "This would not be prohibited 'censorship,' . . . any more than would the Commission's considering on a license renewal application whether a broadcaster allowed 'coarse, vulgar, suggestive, double-meaning' programming; programs containing such material are grounds for denial of a license renewal." 131 U.S.App.D.C., at 150-151, n. 3, 403 F.2d, at 173-174, n. 3. 33 See also Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994 (1966). 34 Entirely apart from the fact that the subsequent review of program content is not the sort of censorship at which the statute was directed, its history makes it perfectly clear that it was not intended to limit the Commission's power to regulate the broadcast of obscene, indecent, or profane language. A single section of the 1927 Act is the source of both the anticensorship provision and the Commission's authority to impose sanctions for the broadcast of indecent or obscene language. Quite plainly, Congress intended to give meaning to both provisions. Respect for that intent requires that the censorship language be read as inapplicable to the prohibition on broadcasting obscene, indecent, or profane language. 35 There is nothing in the legislative history to contradict this conclusion. The provision was discussed only in generalities when it was first enacted.12 In 1934, the anticensorship provision and the prohibition against indecent broadcasts were re-enacted in the same section, just as in the 1927 Act. In 1948, when the Criminal Co e was revised to include provisions that had previously been located in other Titles of the United States Code, the prohibition against obscene, indecent, and profane broadcasts was removed from the Communications Act and re-enacted as § 1464 of Title 18. 62 Stat. 769 and 866. That rearrangement of the Code cannot reasonably be interpreted as having been intended to change the meaning of the anticensorship provision. H.R.Rep.No. 304, 80th Cong., 1st Sess., A106 (1947). Cf. Tidewater Oil Co. v. United States, 409 U.S. 151, 162, 93 S.Ct. 408, 415, 34 L.Ed.2d 375. 36 We conclude, therefore, that § 326 does not limit the Commission's authority to impose sanctions on licensees who engage in obscene, indecent, or profane broadcasting. III 37 The only other statutory question presented by this case is whether the afternoon broadcast of the "Filthy Words" monologue was indecent within the meaning of § 1464.13 Even that question is narrowly confined by the arguments of the parties. 38 The Commission identified several words that referred to excretory or sexual activities or organs, stated that the repetitive, deliberate use of those words in an afternoon broadcast when children are in the audience was patently offensive, and held that the broadcast was indecent. Pacifica takes issue with the Commission's definition of indecency, but does not dispute the Commission's preliminary determination that each of the components of its definition was present. Specifically, Pacifica does not quarrel with the conclusion that this afternoon broadcast was patently offensive. Pacifica's claim that the broadcast was not indecent within the meaning of the statute rests entirely on the absence of prurient appeal. 39 The plain language of the statute does not support Pacifica's argument. The words "obscene, indecent, or profane" are written in the disjunctive, implying that each has a separate mean ng. Prurient appeal is an element of the obscene, but the normal definition of "indecent" merely refers to nonconformance with accepted standards of morality.14 40 Pacifica argues, however, that this Court has construed the term "indecent" in related statutes to mean "obscene," as that term was defined in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. Pacifica relies most heavily on the construction this Court gave to 18 U.S.C. § 1461 in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590. See also United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 130 n. 7, 93 S.Ct. 2665, 2670, 37 L.Ed.2d 500 (18 U.S.C. § 1462) (dicta). Hamling rejected a vagueness attack on § 1461, which forbids the mailing of "obscene, lewd, lascivious, indecent, filthy or vile" material. In holding that the statute's coverage is limited to obscenity, the Court followed the lead of Mr. Justice Harlan in Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639. In that case, Mr. Justice Harlan recognized that § 1461 contained a variety of words with many shades of meaning.15 Nonetheless, he thought that the phrase "obscene, lewd, lascivious, indecent, filthy or vile," taken as a whole, was clearly limited to the obscene, a reading well grounded in prior judicial constructions: "[T]he statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex." 370 U.S., at 483, 82 S.Ct., at 1434. In Hamling the Court agreed with Mr. Justice Harlan that § 1461 was meant only to regulate obscenity in the mails; by reading into it the limits set by Miller v. California, supra, the Court adopted a construction which assured the statute's constitutionality. 41 The reasons supporting Hamling § construction of § 1461 do not apply to § 1464. Although the history of the former revealed a primary concern with the prurient, the Commission has long interpreted § 1464 as encompassing more than the obscene.16 The former statute deals primarily with printed matter enclosed in sealed envelopes mailed from one individual to another; the latter deals with the content of public broadcasts. It is unrealistic to assume that Congress intended to impose precisely the same limitations on the dissemination of patently offensive matter by such different means.17 42 Because neither our prior decisions nor the language or history of § 1464 supports the conclusion that prurient appeal is an essential component of indecent language, we reject Pacifica's construction of the statute. When that construction is put to one side, there is no basis for disagreeing with the Commission's conclusion that indecent language was used in this broadcast. IV 43 Pacifica makes two constitutional attacks on the Commission's order. First, it argues that the Commission's construction of the statutory language broadly encompasses so much constitutionally protected speech that reversal is required even if Pacifica's broadcast of the "Filthy Words" monologue is not itself protected by the First Amendment. Second, Pacifica argues that inasmuch as the recording is not obscene, the Constitution forbids any abridgment of the right to broadcast it on the radio. 44 * The first argument fails because our review is limited to the question whether the Commission has the authority to proscribe this particular broadcast. As the Commission itself emphasized, its order was "issued in a specific factual context." 59 F.C.C.2d, at 893. That approach is appropriate for courts as well as the Commission when regulation of indecency is at stake, for indecency is largely a function of context—it cannot be adequately judged in the abstract. 45 The approach is also consistent with Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371. In that case the Court rejected an argument that the Commission's regulations defining the fairness doctrine were so vague that they would inevitably abridge the broadcasters' freedom of speech. The Court of Appeals had invalidated the regulations because their vagueness might lead to self-censorship of controversial program content. Radio Television News Directors Assn. v. United States, 400 F.2d 1002, 1016 (CA7 1968). This Court reversed. After noting that the Commission had indicated, as it has in this case, that it would not impose sanctions without warning in cases in which the applicability of the law was unclear, the Court stated: 46 "We need not approve every aspect of the fairness doctrine to decide these cases, and we will not now pass upon the constitutionality of these regulations by envisioning the most extreme applications conceivable, United States v. Sullivan, 332 U.S. 689, 694, [68 S.Ct. 331, 92 L.Ed. 297] (1948), but will deal with those problems if and when they arise." 395 U.S., at 396, 89 S.Ct., at 1809. 47 It is true that the Commission's order may lead some broadcasters to censor themselves. At most, however, the Commission's definition of indecency will deter only the broadcasting of patently offensive references to excretory and sexual organs and activities.18 While some of these references may be protected, they surely lie at the periphery of First Amendment concern. Cf. Bates v. State Bar of Arizona, 433 U.S. 350, 380-381, 97 S.Ct. 2691, 2707-2708, 53 L.Ed.2d 810. Young v. American Mini Theatres, Inc., 427 U.S. 50, 61, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310. The danger dismissed so summarily in Red Lion, in contrast, was that broadcasters would respond to the vagueness of the regulations by refusing to present programs dealing with important social and political controversies. Invalidating any rule on the basis of its hypothetical application to situations not before the Court is "strong medicine" to be applied "sparingly and only as a last resort." Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830. We decline to administer that medicine to preserve the vigor of patently offensive sexual and excretory speech. B 48 When the issue is narrowed to the facts of this case, the question is whether the First Amendment denies government any power to restrict the public broadcast of indecent language in any circumstances.19 For if the government has any such power, this was an appropriate occasion for its exercise. 49 The words of the Carlin monologue are unquestionably "speech" within the meaning of the First Amendment. It is equally clear that the Commission's objections to the broadcast were based in part on its content. The order must therefore fall if, as Pacifica argues, the First Amendment prohibits all governmental regulation that depends on the content of speech. Our past cases demonstrate, however, that no such absolute rule is mandated by the Constitution. 50 The classic exposition of the proposition that both the content and the context of speech are critical elements of First Amendment analysis is Mr. Justice Holmes' statement for the Court in Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 248, 63 L.Ed. 470: 51 "We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." 52 Other distinctions based on content have been approved in the years since Schenck. The government may forbid speech calculated to provoke a fight. See Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031. It may pay heed to the " 'commonsense differences' between commercial speech and other varieties." Bates v. State Bar of Arizona, supra, 433 U.S., at 381, 97 S.Ct., at 2707. I may treat libels against private citizens more severely than libels against public officials. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789. Obscenity may be wholly prohibited. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. And only two Terms ago we refused to hold that a "statutory classification is unconstitutional because it is based on the content of communication protected by the First Amendment." Young v. American Mini Theatres, Inc., supra, 427 U.S., at 52, 96 S.Ct., at 2443. 53 The question in this case is whether a broadcast of patently offensive words dealing with sex and excretion may be regulated because of its content.20 Obscene materials have been denied the protection of the First Amendment because their content is so offensive to contemporary moral standards. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. But the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.21 If there were any reason to believe that the Commission's characterization of the Carlin monologue as offensive could be traced to its political content—or even to the fact that it satirized contemporary attitudes about four-letter words22 First Amendment protection might be required. But that is simply not this case. These words offend for the same reasons that obscenity offends.23 Their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice Murphy when he said: "Such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U.S., at 572, 62 S.Ct., at 769. 54 Although these words ordinarily lack literary, political, or scientific value, they are not entirely outside the protection of the First Amendment. Some uses of even the most offensive words are unquestionably protected. See, e. g., Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303. Indeed, we may assume, arguendo, t at this monologue would be protected in other contexts. Nonetheless, the constitutional protection accorded to a communication containing such patently offensive sexual and excretory language need not be the same in every context.24 It is a characteristic of speech such as this that both its capacity to offend and its "social value," to use Mr. Justice Murphy's term, vary with the circumstances. Words that are commonplace in one setting are shocking in another. To paraphrase Mr. Justice Harlan, one occasion's lyric is another's vulgarity. Cf. Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284.25 55 In this case it is undisputed that the content of Pacifica's broadcast was "vulgar," "offensive," and "shocking." Because content of that character is not entitled to absolute constitutional protection under all circumstances, we must consider its context in order to determine whether the Commission's action was constitutionally permissible. C 56 We have long recognized that each medium of expression presents special First Amendment problems. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502-503, 72 S.Ct. 777, 780-781, 96 L.Ed. 1098. And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve "the public interest, convenience, and necessity."26 Similarly, although the First Amendment protects newspaper publishers from being required to print the replies of those whom they criticize, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730, it affords no such protection to broadcasters; on the contrary, they must give free time to the victims of their criticism. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371. 57 The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.27 58 Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195, that the government's interest in the "well-being of its youth" and in supporting "parents' claim to authority in their own household" justified the regulation of otherwise protected expression. Id., at 640 and 639, 88 S.Ct., at 1280.28 The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting. 59 It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction or, indeed, that this broadcast would justify a criminal prosecution. The Commission's decision rested entirely on a nuisance rationale under which context is all-important. The concept requires consideration of a host of variables. The time of day was emphasized by the Commission. The content of the program in which the language is used will also affect the composition of the audience,29 and differences between radio, television, and perhaps closed-circuit transmissions, may also be relevant. As Mr. Justice Sutherland wrote a "nuisance may be merely a right thing in the wrong place,—like a pig in the parlor instead of the barnyard." Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303. We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene. 60 The judgment of the Court of Appeals is reversed. 61 It is so ordered. APPENDIX TO OPINION OF THE COURT 62 The following is a verbatim transcript of "Filthy Words" prepared by the Federal Communications Commission. 63 Aruba-du, ruba-tu, ruba-tu. I was thinking about the curse words and the swear words, the cuss words and the words that you can't say, that you're not supposed to say all the time, [']cause words or people into words want to hear your words. Some guys like to record your words and sell them back to you if they can, (laughter) listen in on the telephone, write down what words you say. A guy who used to be in Washington, knew that his phone was tapped, used to answer, Fuck Hoover, yes, go ahead. (laughter) Okay, I was thinking one night about the words you couldn't say on the public, ah, airwaves, um, the ones you definitely wouldn't say, ever, [']cause I heard a lady say bitch one night on television, and it was cool like she was talking about, you know, ah, well, the bitch is the first one to notice that in the litter Johnie right (murmur) Right. And, uh, bastard you can say, and hell and damn so I have to figure out which ones you couldn't and ever and it came down to seven but the list is open to amendment, and in fact, has been changed, uh, by now, ha, a lot of people pointed things out to me, and I noticed some myself. The original seven words were, shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Those are the ones that will curve your spine, grow hair on your hands and (laughter) maybe, even bring us, God help us, peace without honor (laughter) um, and a bourbon. (laughter) And now the first thing that we noticed was that work fuck was really repeated in there because the word motherfucker is a compound word and it's another form of the word fuck. (laughter) You want to be a purist it doesn't really—it can't be on the list of basic words. Also, cocksucker is a compound word and neither half of that is really dirty. The word—the half sucker that's merely suggestive (laughter) and the word cock is a half-way dirty word, 50% dirty dirty half the time, depending on what you mean by it. (laughter) Uh, remember when you first heard it, like in 6th grade, you used to giggle. And the cock crowed three times, heh (laughter) the cock—three times. It's in the Bible, cock in the Bible. (laughter) And the first time you heard about a cock-fight, remember—What? Huh? naw. It ain't that, are you stupid? man. (laughter, clapping) It's chickens, you know, (laughter) Then you have the four letter words from the old Angle-Saxon fame. Uh, shit and fuck. The word shit, uh, is an interesting kind of word in that the middle class has never really accepted it and approved it. They use it like, crazy but it's not really okay. It's still a rude, dirty, old kind of gushy word. (laughter) They don't like that, but they say it, like, they say it like, a lady now in a middle-class home, you'll hear most of the time she says it as an expletive, you know, it's out of her mouth before she knows. She says, Oh shit oh shit, (laughter) oh shit. If she drops something, Oh, the shit hurt the broccoli. Shit. Thank you. (footsteps fading away) (papers ruffling) Read it! (from audience) 64 Shit! (laughter) I won the Grammy, man, for the comedy album. Isn't that groovy? (clapping, whistling) (murmur) That's true. Thank you. Thank you man. Yeah. (murmer) (continuous clapping) Thank you man. Thank you. Thank you very much, man. Thank, no, (end of continuous clapping) for that and for the Grammy, man, [']cause (laughter) that's based on people liking it man, yeh, that's ah, that's okay man. (laughter) Let's let that go, man. I got my Grammy. I can let my hair hang down now, shit. (laughter) Ha! So! Now the word shit is okay for the man. At work you can say it like crazy. Mostly figuratively, Get that shit out of here, will ya? I don't want to see that shit anymore. I can't cut that shit, buddy. I've had that shit up to here. I think you're full of shit myself. (laughter) He don't know shit from Shinola. (laughter) you know that? (laughter) Always wondered how the Shinola people felt about that (laughter) Hi, I'm the new man from Shinola, (laughter) Hi, how are ya? Nice to see ya. (laughter) How are ya? (laughter) Boy, I don't know whether to shit or wind my watch. (laughter) Guess, I'll shit on my watch. (laughter) Oh, the shit is going to hit de fan. (laughter). Built like a brick shit-house. (laughter) Up, he's up shit's creek. (laughter) He's had it. (laughter) He hit me, I'm sorry. (laughter) Hot shit, holy shit, tough shit, eat shit. (laughter) shit-eating grin. Uh, whoever thought of that was ill. (murmur laughter) He had a shit-eating grin! He had a what? (laughter) Shit on a stick. (laughter) Shit in a handbag. I always like that. He ain't worth shit in a handbag. (laughter) Shitty. He acted real shitty. (laughter) You know what I mean? (laughter) I got the money back, but a real shitty attitude. Heh, he had a shit-fit. (laughter) Wow! Shit-fit. Whew! Glad I wasn't there. (murmur, laughter) All the animals—Bull shit, horseshit, cow shit, rat shit, bat shit. (laughter) First time I heard bat shit, I really came apart. A guy in Oklahoma, Boggs, said it, man. Aw! Bat shit. (laughter) Vera reminded me of that last night, ah (murmur). Snake shit, slicker than owl shit. (laughter) Get your shit together. Shit or get off the pot. (laughter) I got a shit-load full of them. (laughter) I got a shit-pot full, all right. Shit-head, shit-heel, shit in your heart, shit for brains, (laughter) shit-face, heh (laughter) I always try to think how that could have originated; the first guy that said that. Somebody got drunk and fell in some shit, you know. (laughter) Hey, I'm shit-face. (laughter) Shit-face, today. (laughter) Anyway, enough of that shit. (laughter) The big one, the word fuck that's the one that hangs them up the most. [']Cause in a lot of cases that's the very act that hangs them up the most. So, it's natural that the word would, uh, have the same effect. It's a great word, fuck, nice word, easy word, cute word, kind of. Easy word to say. One syllable, short u. (laughter Fuck. (Murmur) You know, it's easy. Starts with a nice soft sound fuh ends with akuh. Right? (laughter) A little something for everyone. Fuck (laughter) Good word. Kind of a proud word, too. Who are you? I am FUCK, (laughter) FUCK OF THE MOUNTAIN. (laughter) Tune in again next week to FUCK OF THE MOUNTAIN. (laughter) It's an interesting word too, [']cause it's got a double kind of a life—personality—dual, you know, whatever the right phrase is. It leads a double life, the word fuck. First of all, it means, sometimes, most of the time, fuck. What does it mean? It means to make love. Right? We're going to make love, yeh, we're going to fuck, yeh, we're going to fuck, yeh, we're going to make love. (laughter) we're really going to fuck, yeh, we're going to make love. Right? And it also means the beginning of life, it's the act that begins life, so there's the word hanging around with words like love, and life, and yet on the other hand, it's also a word that we really use to hurt each other with, man. It's a heavy. It's one that you have toward the end of the argument. (laughter) Right? (laughter) You finally can't make out. Oh, fuck you man. I said, fuck you. (laughter, murmur) Stupid fuck. (laughter) Fuck you and everybody that looks like you. (laughter) man. It would be nice to change the movies that we already have and substitute the word fuck for the word kill, wherever we could, and some of those movie cliches would change a little bit. Madfuckers still on the loose. Stop me before I fuck again. Fuck the ump, fuck the ump, fuck the ump, fuck the ump, fuck the ump. Easy on the clutch Bill, you'll fuck that engine again. (laughter) The other shit one was, I don't give a shit. Like it's worth something, you know? (laughter) I don't give a shit. Hey, well, I don't take no shit, (laughter) you know what I mean? You know why I don't take no shit? (laughter) [']Cause I don't give a shit. (laughter) If I give a shit, I would have to pack shit. (laughter) But I don't pack no shit cause I don't give a shit. (laughter) You wouldn't shit me, would you? (laughter) That's a joke when you're a kid with a worm looking out the bird's ass. You wouldn't shit me, would you? (laughter) It's an eight-year-old joke but a good one. (laughter) The additions to the list. I found three more words that had to be put on the list of words you could never say on television, and they were fart, turd and twat, those three. (laughter) Fart, we talked about, it's harmless. It's like tits, it's a cutie word, no problem. Turd, you can't say but who wants to, you know? (laughter) The subject never comes up on the panel so I'm not worried about that one. Now the word twat is an interesting word. Twat! Yeh, right in the twat. (laughter) Twat is an interesting word because it's the only one I know of, the only slang word applying to the, a part of the sexual anatomy that doesn't have another meaning to it. Like, ah, snatch, box and pussy all have other meanings, man. Even in a Walt Disney movie, you can say, We're going to snatch that pussy and put him in a box and bring him on the airplane. (murmer, laughter) Everybody loves it. The twat stands alone, man, as it should. And two-way words. Ah, ass is okay providing you're riding into town on a religious feast day. (laughter) You can't say, up your ass. (laughter) You can say, stuff it! (murmur) There are certain things you can say its weird but you can just come so close. Before I cut, I, uh, want to, ah, thank you for listening to my words, man, fellow, uh space travelers. Thank you man for tonight and thank you also. (clapping whistling) 65 Mr. Justice POWELL, with whom Mr. Justice BLACKMUN joins, concurring in part and concurring in the judgment. 66 I join Parts I, II, III, and IV-C of Mr. Justice STEVENS' opinion. The Court today reviews only the Commission's holding that Carlin's monologue was indecent "as broadcast" at two o'clock in the afternoon, and not the broad sweep of the Commission's opinion. Ante, at 734-735. In addition to being consistent with our settled practice of not deciding constitutional issues unnecessarily, see ante, at 734; Ashwander v. TVA, 297 U.S. 288, 345-348, 56 S.Ct. 466, 482-484, 80 L.Ed. 688 (1936) (Brandeis, J., concurring), this narrow focus also is conducive to the orderly development of this relatively new and difficult area of law, in the first instance by the Commission, and then by the reviewing courts. See 181 U.S.App.D.C. 132, 158-160, 556 F.2d 9, 35-37 (1977) (Leventhal, J., dissenting). 67 I also agree with much that is said in Part IV of Mr. Justice STEVENS' opinion, and with its conclusion that the Commission's holding in this case does not violate the First Amendment. Because I do not subscribe to all that is said in Part IV, however, I state my views separately. 68 * It is conceded that the monologue at issue here is not obscene in the constitutional sense. See 56 F.C.C.2d 94, 98 (1975); Brief for Petitioner 18. Nor, in this context, does its language constitute "fighting words" within the meaning of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Some of the words used have been held protected by the First Amendment in other cases and contexts. E. g., Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973); Papish v. University of Missouri Curators, 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618 (1973); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); see also Eaton v. Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974). I do not think Carlin, consistently with the First Amendment, could be punished for delivering the same monologue to a live audience composed of adults who, knowing what to expect, chose to attend his performance. See Brown v. Oklahoma, 408 U.S. 914, 92 S.Ct. 2507, 33 L.Ed.2d 326 (1972) (POWELL, J., concurring in result). And I would assume that an adult could not constitutionally be prohibited from purchasing a recording or transcript of the monologue and playing or reading it in the privacy of his own home. Cf. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). 69 But it also is true that the language employed is, to most people, vulgar and offensive. It was chosen specifically for this quality, and it was repeated over and over as a sort of verbal shock treatment. The Commission did not err in characterizing the narrow category of language used here as "patently offensive" to most people regardless of age. 70 The issue, however, is whether the Commission may impose civil sanctions on a licensee radio station for broadcasting the monologue at two o'clock in the afternoon. The Commission's primary concern was to prevent the broadcast from reaching the ears of unsupervised children who were likely to be in the audience at that hour. In essence, the Commission sought to "channel" the monologue to hours when the fewest unsupervised children would be exposed to it. See 56 F.C.C.2d, at 98. In my view, this consideration provides strong support for the Commission's holding.1 71 The Court has recognized society's right to "adopt more stringent controls on communicative materials available to youths than on those available to adults." Erznoznik v. Jacksonville, 422 U.S. 205, 212, 95 S.Ct. 2268, 2274, 45 L.Ed.2d 125 (1975); see also, e. g., Miller v. California, 413 U.S. 15, 36 n. 17, 93 S.Ct. 2607, 2621, 37 L.Ed.2d 419 (1973); Ginsberg v. New York, 390 U.S. 629, 636-641, 88 S.Ct. 1274, 1278-1282, 20 L.Ed.2d 195 (1968); Jacobellis v. Ohio, 378 U.S. 184, 195, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (1964) (opinion of BRENNAN, J.). This recognition stems in large art from the fact that "a child . . . is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees." Ginsberg v. New York, supra, 390 U.S., at 649-650, 88 S.Ct., at 1286 (STEWART, J., concurring in result). Thus, children may not be able to protect themselves from speech which, although shocking to most adults, generally may be avoided by the unwilling through the exercise of choice. At the same time, such speech may have a deeper and more lasting negative effect on a child than on an adult. For these reasons, society may prevent the general dissemination of such speech to children, leaving to parents the decision as to what speech of this kind their children shall hear and repeat: 72 "[C]onstitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. 'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' Prince v. Massachusetts, [321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944)]. The legislature could properly conclude that parents and others, teachers for example, who have this primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility." Id., at 639, 88 S.Ct., at 1280. 73 The Commission properly held that the speech from which society may attempt to shield its children is not limited to that which appeals to the youthful prurient interest. The language involved in this case is as potentially degrading and harmful to children as representations of many erotic acts. 74 In most instances, the dissemination of this kind of speech to children may be limited without also limiting willing adults' access to it. Sellers of printed and recorded matter and exhibitors of motion pictures and live performances may be required to shut their doors to children, but such a requirement has no effect on adults' access. See id., at 634-635, 88 S.Ct., at 1277-1278. The difficulty is that such a physical separation of the audience cannot be accomplished in the broadcast media. During most of the broadcast hours, both adults and unsupervised children are likely to be in the broadcast audience, and the broadcaster cannot reach willing adults without also reaching children. This, as the Court emphasizes, is one of the distinctions between the broadcast and other media to which we often have adverted as justifying a different treatment of the broadcast media for First Amendment purposes. See Bates v. State Bar of Arizona, 433 U.S. 350, 384, 97 S.Ct. 2691, 2709, 53 L.Ed.2d 810 (1977); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 101, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386-387, 89 S.Ct. 1794, 1804-1805, 23 L.Ed.2d 371 (1969); Capital Broadcasting Co. v. Mitchell, 333 F.Supp. 582 (DC 1971), aff'd sub nom. Capital Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000, 92 S.Ct. 1289, 31 L.Ed.2d 472 (1972); see generally Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502-503, 72 S.Ct. 777, 780-781, 96 L.Ed. 1098 (1952). In my view, the Commission was entitled to give substantial weight to this difference in reaching its decision in this case. 75 A second difference, not without relevance, is that broadcasting—unlike most other forms of communication—comes directly into the home, the one place where people ordinarily have the right not to be assaulted by uninvited and offensive sights and sounds. Erznoznik v. Jacksonville, supra, 422 U.S., at 209, 95 S.Ct., at 2272; Cohen v. California, 403 U.S., at 21, 91 S.Ct., at 1786; Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 7 6 (1970). Although the First Amendment may require unwilling adults to absorb the first blow of offensive but protected speech when they are in public before they turn away, see, e. g., Erznoznik, supra, 422 U.S., at 210-211, 95 S.Ct., at 2273-2274; but cf. Rosenfeld v. New Jersey, 408 U.S. 901, 903-909, 92 S.Ct. 2479-2481, 33 L.Ed.2d 321 (1972) (POWELL, J., dissenting), a different order of values obtains in the home. "That we are often 'captives' outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere." Rowan v. Post Office Dept., supra, 397 U.S., at 738, 90 S.Ct., at 1491. The Commission also was entitled to give this factor appropriate weight in the circumstances of the instant case. This is not to say, however, that the Commission has an unrestricted license to decide what speech, protected in other media, may be banned from the airwaves in order to protect unwilling adults from momentary exposure to it in their homes.2 Making the sensitive judgments required in these cases is not easy. But this responsibility has been reposed initially in the Commission, and its judgment is entitled to respect. 76 It is argued that despite society's right to protect its children from this kind of speech, and despite everyone's interest in not being assaulted by offensive speech in the home, the Commission's holding in this case is impermissible because it prevents willing adults from listening to Carlin's monologue over the radio in the early afternoon hours. It is said that this ruling will have the effect of "reduc[ing] the adult population . . . to [hearing] only what is fit for children." Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 526, 1 L.Ed.2d 412 (1957). This argument is not without force. The Commission certainly should consider it as it develops standards in this area. But it is not sufficiently strong to leave the Commission powerless to act in circumstances such as those in this case. 77 The Commission's holding does not prevent willing adults from purchasing Carlin's record, from attending his performances, or, indeed, from reading the transcript reprinted as an appendix to the Court's opinion. On its face, it does not prevent respondent Pacifica Foundation from broadcasting the monologue during late evening hours when fewer children are likely to be in the audience, nor from broadcasting discussions of the contemporary use of language at any time during the day. The Commission's holding, and certainly the Court's holding today, does not speak to cases involving the isolated use of a potentially offensive word in the course of a radio broadcast, as distinguished from the verbal shock treatment administered by respondent here. In short, I agree that on the facts of this case, the Commission's order did not violate respondent's First Amendment rights. II 78 As the foregoing demonstrates, my views are generally in accord with what is said in Part IV-C of Mr. Justice STEVENS' opinion. See ante, at 748-750. I therefore join that portion of his opinion. I do not join Part IV-B, however, because I do not subscribe to the theory that the Justices of this Court are free generally to decide on the basis of its content which speech protected by the First Amendment is most "valuable" and hence deserving of the most protection, and which is less "valuable" and hence deserving of less protection. Compare ante, at 744-748; Young v. American Mini Thea res, Inc., 427 U.S. 50, 63-73, 96 S.Ct. 2440, 2448-2454, 49 L.Ed.2d 310 (1976) (opinion of Stevens, J.), with id., at 73 n. 1, 96 S.Ct., at 2453 (Powell, J., concurring).3 In my view, the result in this case does not turn on whether Carlin's monologue, viewed as a whole, or the words that constitute it, have more or less "value" than a candidate's campaign speech. This is a judgment for each person to make, not one for the judges to impose upon him.4 79 The result turns instead on the unique characteristics of the broadcast media, combined with society's right to protect its children from speech generally agreed to be inappropriate for their years, and with the interest of unwilling adults in not being assaulted by such offensive speech in their homes. Moreover, I doubt whether today's decision will prevent any adult who wishes to receive Carlin's message in Carlin's own words from doing so, and from making for himself a value judgment as to the merit of the message and words. Cf. Id., at 77-79, 96 S.Ct., at 2455-2457 (POWELL, J., concurring). These are the grounds upon which I join the judgment of the Court as to Part IV. 80 Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting. 81 I agree with Mr. Justice STEWART that, under Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), and United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), the word "indecent" in 18 U.S.C. § 1464 (1976 ed.) must be construed to prohibit only obscene speech. I would, therefore, normally refrain from expressing my views on any constitutional issues implicated in this case. However, I find the Court's misapplication of fundamental First Amendment principles so patent, and its attempt to impose its notions of propriety on the whole of the American people so misguided, that I am unable to remain silent. 82 * For the second time in two years, see Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), the Court refuses to embrace the notion, completely antithetical to basic First Amendment values, that the degree of protection the First Amendment affords protected speech varies with the social value ascribed to that speech by five Members of this Court. See opinion of Mr. Justice POWELL, ante, at 761-762. Moreover, as do all parties, all Members of the Court agree that the Carlin monologue aired by Station WBAI does not fall within one of the categories of speech, such as "fighting words," Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 7 6, 86 L.Ed. 1031 (1942), or obscenity, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), that is totally without First Amendment protection. This conclusion, of course, is compelled by our cases expressly holding that communications containing some of the words found condemnable here are fully protected by the First Amendment in other contexts. See Eaton v. Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974); Papish v. University of Missouri Curators, 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618 (1973); Brown v. Oklahoma, 408 U.S. 914, 92 S.Ct. 2507, 33 L.Ed.2d 326 (1972); Lewis v. New Orleans, 408 U.S. 913, 92 S.Ct. 2499, 33 L.Ed.2d 321 (1972); Rosenfeld v. New Jersey, 408 U.S. 901, 92 S.Ct. 2479, 33 L.Ed.2d 321 (1972); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Yet despite the Court's refusal to create a sliding scale of First Amendment protection calibrated to this Court's perception of the worth of a communication's content, and despite our unanimous agreement that the Carlin monologue is protected speech, a majority of the Court1 nevertheless finds that, on the facts of this case, the FCC is not constitutionally barred from imposing sanctions on Pacifica for its airing of the Carlin monologue. This majority apparently believes that the FCC's disapproval of Pacifica's afternoon broadcast of Carlin's "Dirty Words" recording is a permissible time, place, and manner regulation. Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949). Both the opinion of my Brother STEVENS and the opinion of my Brother POWELL rely principally on two factors in reaching this conclusion: (1) the capacity of a radio broadcast to intrude into the unwilling listener's home, and (2) the presence of children in the listening audience. Dispassionate analysis, removed from individual notions as to what is proper and what is not, starkly reveals that these justifications, whether individually or together, simply do not support even the professedly moderate degree of governmental homogenization of radio communications—if, indeed, such homogenization can ever be moderate given the pre-eminent status of the right of free speech in our constitutional scheme—that the Court today permits. 83 Without question, the privacy interests of an individual in his home are substantial and deserving of significant protection. In finding these interests sufficient to justify the content regulation of protected speech, however, the Court commits two errors. First, it misconceives the nature of the privacy interests involved where an individual voluntarily chooses to admit radio communications into his home. Second, it ignores the constitutionally protected interests of both those who wish to transmit and those who desire to receive broadcasts that many including the FCC and this Court—might find offensive. 84 "The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections." Cohen v. California, supra, 403 U.S., at 21, 91 S.Ct., at 1786. I am in wholehearted agreement with my Brethren that an individual's right "to be let alone" when engaged in private activity within the confines of his own home is encompassed within the "substantial privacy interests" to which Mr. Justice Harlan referred in Cohen, and is entitled to the greatest solicitude. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). However, I believe th t an individual's actions in switching on and listening to communications transmitted over the public airways and directed to the public at large do not implicate fundamental privacy interests, even when engaged in within the home. Instead, because the radio is undeniably a public medium, these actions are more properly viewed as a decision to take part, if only as a listener, in an ongoing public discourse. See Note, Filthy Words, the FCC, and the First Amendment: Regulating Broadcast Obscenity, 61 Va.L.Rev. 579, 618 (1975). Although an individual's decision to allow public radio communications into his home undoubtedly does not abrogate all of his privacy interests, the residual privacy interests he retains vis-a-vis the communication he voluntarily admits into his home are surely no greater than those of the people present in the corridor of the Los Angeles courthouse in Cohen who bore witness to the words "Fuck the Draft" emblazoned across Cohen's jacket. Their privacy interests were held insufficient to justify punishing Cohen for his offensive communication. 85 Even if an individual who voluntarily opens his home to radio communications retains privacy interests of sufficient moment to justify a ban on protected speech if those interests are "invaded in an essentially intolerable manner," Cohen v. California, supra, 403 U.S., at 21, 91 S.Ct., at 1786, the very fact that those interests are threatened only by a radio broadcast precludes any intolerable invasion of privacy; for unlike other intrusive modes of communication, such as sound trucks, "[t]he radio can be turned off," Lehman v. Shaker Heights, 418 U.S. 298, 302, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974)—and with a minimum of effort. As Chief Judge Bazelon aptly observed below, "having elected to receive public air waives, the scanner who stumbles onto an offensive program is in the same position as the unsuspecting passers-by in Cohen and Erznoznik [v. Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975)]; he can avert his attention by changing channels or turning off the set." 181 U.S.App.D.C. 132, 149, 556 F.2d 9, 26 (1977). Whatever the minimal discomfort suffered by a listener who inadvertently tunes into a program he finds offensive during the brief interval before he can simply extend his arm and switch stations or flick the "off" button, it is surely worth the candle to preserve the broadcaster's right to send, and the right of those interested to receive, a message entitled to full First Amendment protection. To reach a contrary balance, as does the Court, is clearly to follow Mr. Justice STEVENS' reliance on animal metaphors, ante, at 750-751, "to burn the house to roast the pig." Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 526, 1 L.Ed.2d 412 (1957). 86 The Court's balance, of necessity, fails to accord proper weight to the interests of listeners who wish to hear broadcasts the FCC deems offensive. It permits majoritarian tastes completely to preclude a protected message from entering the homes of a receptive, unoffended minority. No decision of this Court supports such a result. Where the individuals constituting the offended majority may freely choose to reject the material being offered, we have never found their privacy interests of such moment to warrant the suppression of speech on privacy grounds. Cf. Lehman v. Shaker Heights, supra. Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970), relied on by the FCC and by the opinions of my Brothers POWELL and STEVENS, confirms rather than belies this conclusion. In Rowan, the Court upheld a statute, 39 U.S.C. § 4009 (1964 ed., Supp. IV), permitting householders to require that mail advertisers stop sending them lewd or offensive materials and remove their names from mailing lists. Unlike the situation here, householders who wished to receive the sender's communications were not prevented from doing so. Equally important, the de ermination of offensiveness vel non under the statute involved in Rowan was completely within the hands of the individual householder; no governmental evaluation of the worth of the mail's content stood between the mailer and the householder. In contrast, the visage of the censor is all too discernible here. B 87 Most parents will undoubtedly find understandable as well as commendable the Court's sympathy with the FCC's desire to prevent offensive broadcasts from reaching the ears of unsupervised children. Unfortunately, the facial appeal of this justification for radio censorship masks its constitutional insufficiency. Although the government unquestionably has a special interest in the well-being of children and consequently "can adopt more stringent controls on communicative materials available to youths than on those available to adults," Erznoznik v. Jacksonville, 422 U.S. 205, 212, 95 S.Ct. 2268, 2274, 45 L.Ed.2d 125 (1975); see Paris Adult Theatre I v. Slaton, 413 U.S. 49, 106-107, 93 S.Ct. 2628, 2659-2660, 37 L.Ed.2d 446 (1973) (BRENNAN, J., dissenting), the Court has accounted for this societal interest by adopting a "variable obscenity" standard that permits the prurient appeal of material available to children to be assessed in terms of the sexual interests of minors. Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). It is true that the obscenity standard the Ginsberg Court adopted for such materials was based on the then-applicable obscenity standard of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), and that "[w]e have not had occasion to decide what effect Miller [v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973)] will have on the Ginsberg formulation." Erznoznik v. Jacksonville, supra, 422 U.S., at 213 n. 10, 95 S.Ct., at 2275. Nevertheless, we have made it abundantly clear that "under any test of obscenity as to minors . . . to be obscene 'such expression must be, in some significant way, erotic.' " 422 U.S., at 213 n. 10, 95 S.Ct., at 2275 n. 10, quoting Cohen v. California, 403 U.S., at 20, 91 S.Ct., at 1785. 88 Because the Carlin monologue is obviously not an erotic appeal to the prurient interests of children, the Court, for the first time, allows the government to prevent minors from gaining access to materials that are not obscene, and are therefore protected, as to them.2 It thus ignores our recent admonition that "[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them." 422 U.S., at 213-214, 95 S.Ct., at 2275.3 The Court's refusal to follow its own pronouncements is especially lamentable since it has the anomalous subsidiary effect, at least in the radio context at issue here, of making completely unavailable to adults material which may not constitutionally be kept even from children. This result violates in spades the principle of Butler v. Michigan, supra. Butler involved a challenge to a Michigan statute that forbade the publication, sale, or distribution of printed material "tending to incite minors to violent or depraved or immoral acts, manifestly tending to the corruption of the morals of youth." 352 U.S., at 381, 77 S.Ct., at 525. Although Roth v. United States, supra, had not yet been decided, it is at least arguable that the material the statute in Butler was designed to suppress could have been constitutionally denied to children. Nevertheless, this Court found the statute unconstitutional. Speaking for the Court, Mr. Justice Frankfurter reasoned: 89 "The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby arbitrarily curtails one of those liberties of the individual, now enshrined in the Due Process Clause of the Fourteenth Amendment, that history has attested as the indispensable conditions for the maintenance and progress of a free society." 352 U.S., at 383-384, 77 S.Ct., at 526. 90 Where, as here, the government may not prevent the exposure of minors to the suppressed material, the principle of Butler applies a fortiori. The opinion of my Brother POWELL acknowledges that there lurks in today's decision a potential for " 'reduc[ing] the adult population . . . to [hearing] only what is fit for children,' " ante, at 760, but expresses faith that the FCC will vigilantly prevent this potential from ever becoming a reality. I am far less certain than my Brother POWELL that such faith in the Commission is warranted, see Illinois Citizens Committee for Broadcasting v. FCC, 169 U.S.App.D.C. 166, 187-190, 515 F.2d 397, 418-421 (1975) (statement of Bazelon, C. J., as to why he voted to grant rehearing en banc); and even if I shared it, I could not so easily shirk the responsibility assumed by each Member of this Court jealously to guard against encroachments on First Amendment freedoms. 91 In concluding that the presence of children in the listening audience provides an adequate basis for the FCC to impose sanctions for Pacifica's broadcast of the Carlin monologue, the opinions of my Brother POWELL, ante, at 757-758, and my Brother STEVENS, ante, at 749-750, both stress the time-honored right of a parent to raise his child as he sees fit—a right this Court has consistently been vigilant to protect. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). Yet this principle supports a result directly contrary to that reached by the Court. Yoder and Pierce hold that parents, not the government, have the right to make certain decisions regarding the upbringing of their children. As surprising as it may be to individual Members of this Court, some parents may actually find Mr. Carlin's unabashed attitude towards the seven "dirty words" healthy, and deem it desirable to expose their children to the manner in which Mr. Carlin defuses the taboo surrounding the words. Such parents may constitute a minority of the American public, but the absence of great numbers willing to exercise the right to raise their children in this fashion does not alter the right's nature or its existence. Only the Court's regrettable decision does that.4 C 92 As demonstrated above, neither of the factors relied on by both the opinion of my Brother POWELL and the opinion of my Brother STEVENS—the intrusive nature of radio and the presence of children in the listening audience—can, when taken on its own terms, support the FCC's disapproval of the Carlin monologue. These two asserted justifications are further plagued by a common failing: the lack of principled limits on their use as a basis for FCC censorship. No such limits come readily to mind, and neither of the opinions constituting the Court serve to clarify the extent to which the FCC may assert the privacy and children-in-the-audience rationales as justification for expunging from the airways protected communications the Commission finds offensive. Taken to their logical extreme, these rationales would support the cleansing of public radio of any "four-letter words" whatsoever, regardless of their context. The rationales could justify the banning from radio of a myriad of literary works, novels, poems, and plays by the likes of Shakespeare, Joyce, Hemingway, Ben Jonson, Henry Fielding, Robert Burns, and Chaucer; they could support the suppression of a good deal of political speech, such as the Nixon tapes; and they could even provide the basis for imposing sanctions for the broadcast of certain portions of the Bible.5 93 In order to dispel the specter of the possibility of so unpalatable a degree of censorship, and to defuse Pacifica's overbreadth challenge, the FCC insists that it desires only the authority to reprimand a broadcaster on facts analogous to those present in this case, which it describes as involving "broadcasting for nearly twelve minutes a record which repeated over and over words which depict sexual or excretory activities and organs in a manner patently offensive by its community's contemporary standards in the early afternoon when children were in the audience." Brief for Petitioner 45. The opinions of both my Brother POWELL and my Brother STEVENS take the FCC at its word, and consequently do no more than permit the Commission to censor the afternoon broadcast of the "sort of verbal shock treatment," opinion of Mr. Justice POWELL, ante, at 757, involved here. To insure that the FCC's regulation of protected speech does not exceed these bounds, my Brother POWELL is content to rely upon the judgment of the Commission while my Brother STEVENS deems it prudent to rely on this Court's ability accurately to assess the worth of various kinds of speech.6 For my own part, even accepting that this case is limited to its facts,7 I would place the responsibility and the right to weed worthless and offensive communications from the public airways where it belongs and where, until today, it resided: in a public free to choose those communications orthy of its attention from a marketplace unsullied by the censor's hand. II 94 The absence of any hesitancy in the opinions of my Brothers POWELL and STEVENS to approve the FCC's censorship of the Carlin monologue on the basis of two demonstrably inadequate grounds is a function of their perception that the decision will result in little, if any, curtailment of communicative exchanges protected by the First Amendment. Although the extent to which the Court stands ready to countenance FCC censorship of protected speech is unclear from today's decision, I find the reasoning by which my Brethren conclude that the FCC censorship they approve will not significantly infringe on First Amendment values both disingenuous as to reality and wrong as a matter of law. 95 My Brother STEVENS, in reaching a result apologetically described as narrow, ante, at 750, takes comfort in his observation that "[a] requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication," ante, at 743 n. 18, and finds solace in his conviction that "[t]here are few, if any, thoughts that cannot be expressed by the use of less offensive language." Ibid. The idea that the content of a message and its potential impact on any who might receive it can be divorced from the words that are the vehicle for its expression is transparently fallacious. A given word may have a unique capacity to capsule an idea, evoke an emotion, or conjure up an image. Indeed, for those of us who place an appropriately high value on our cherished First Amendment rights, the word "censor" is such a word. Mr. Justice Harlan, speaking for the Court, recognized the truism that a speaker's choice of words cannot surgically be separated from the ideas he desires to express when he warned that "we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process." Cohen v. California, 403 U.S., at 26, 91 S.Ct., at 1788. Moreover, even if an alternative phrasing may communicate a speaker's abstract ideas as effectively as those words he is forbidden to use, it is doubtful that the sterilized message will convey the emotion that is an essential part of so many communications. This, too, was apparent to Mr. Justice Harlan and the Court in Cohen. 96 "[W]e cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serve a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated." Id., at 25-26, 91 S.Ct., at 1788. 97 My Brother STEVENS also finds relevant to his First Amendment analysis the fact that "[a]dults who feel the need may purchase tapes and records or go to theaters and nightclubs to hear [the tabooed] words." Ante, at 750 n. 28. My Brother POWELL agrees: "The Commission's holding does not prevent willing adults from purchasing Carlin's record, from attending his performances, or, indeed, from reading the transcript reprinted as an appendix to the Court's opinion." Ante, at 760. The opinions of my Brethren display both a sad insensitivity to the fact that these alternatives involve the expenditure of money, time, and effort that many of those wishing to hear Mr. Carlin's message may not be able to afford, and a naive innocence of the reality that in many cases the medium may well be the message. 98 The Court apparently believes that the FCC's actions here can be analogized to the zoning ordinances upheld in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). For two reasons, it is wrong. First, the zoning ordinances found to pass constitutional muster in Young had valid goals other than the channeling of protected speech. Id., 427 U.S., at 71 n. 34, 96 S.Ct., at 2453 (opinion of STEVENS, J.); id., at 80, 96 S.Ct., at 2457 (POWELL, J., concurring). No such goals are present here. Second, and crucial to the opinions of my Brothers POWELL and STEVENS in Young —opinions, which, as they do in this case, supply the bare five-person majority of the Court the ordinances did not restrict the access of distributors or exhibitors to the market or impair the viewing public's access to the regulated material. Id., at 62, 71 n. 35, 96 S.Ct., at 2453 (opinion of STEVENS, J.); id., at 77, 96 S.Ct., at 2455 (POWELL, J., concurring). Again, this is not the situation here. Both those desiring to receive Carlin's message over the radio and those wishing to send it to them are prevented from doing so by the Commission's actions. Although, as my Brethren point out, Carlin's message may be disseminated or received by other means, this is of little consolation to those broadcasters and listeners who, for a host of reasons, not least among them financial, do not have access to, or cannot take advantage of, these other means. 99 Moreover, it is doubtful that even those frustrated listeners in a position to follow my Brother POWELL's gratuitous advice and attend one of Carlin's performances or purchase one of his records would receive precisely the same message Pacifica's radio station sent its audience. The airways are capable not only of carrying a message, but also of transforming it. A satirist's monologue may be most potent when delivered to a live audience; yet the choice whether this will in fact be the manner in which the message is delivered and received is one the First Amendment prohibits the government from making. III 100 It is quite evident that I find the Court's attempt to unstitch the warp and woof of First Amendment law in an effort to reshape its fabric to cover the patently wrong result the Court reaches in this case dangerous as well as lamentable. Yet there runs throughout the opinions of my Brothers POWELL and STEVENS another vein I find equally disturbing: a depressing inability to appreciate that in our land of cultural pluralism, there are many who think, act, and talk differently from the Members of this Court, and who do not share their fragile sensibilities. It is only an acute ethnocentric myopia that enables the Court to approve the censorship of communications solely because of the words they contain. 101 "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372 (1918) (Holmes, J.). The words that the Court and the Commission find so unpalatable may be the stuff of everyday conversations in some, if not many, of the innumerable subcultures that compose this Nation. Academic research indicates that this is indeed the case. See B. Jackson, "Get Your Ass in the Water and Swim Like Me" (1974); J. Dillard, Black English (1972); W. Labov, Language in the Inner City: Studies in the Black English Vernacular (1972). As one researcher concluded "[w]ords generally considered obscene like 'bullshit' and 'fuck' are considered neither obscene nor derogatory in the [black] vernacular except in particular contextual situations and when used with certain intonations." C. Bins, "Toward an Ethnography of Contemporary African American Oral Poetry," Language and Linguistics Working Papers No. 5, p. 82 (Georgetown Univ. Press 1972). Cf. Keefe v. Geanakos, 418 F.2d 359, 361 (CA1 1969) (finding the use of the word "motherfucker" commonplace among young radicals and protesters). 102 Today's decision will thus have its greatest impact on broadcasters desiring to reach, and listening audiences composed of, persons who do not share the Court's view as to which words or expressions are acceptable and who, for a variety of reasons, including a conscious desire to flout majoritarian conventions, express themselves using words that may be regarded as offensive by those from different socio-economic backgrounds.8 In this context, the Court's decision may be seen for what, in the broader perspective, it really is: another of the dominant culture's inevitable efforts to force those groups who do not share its mores to conform to its way of thinking, acting, and speaking. See Moore v. East Cleveland, 431 U.S. 494, 506-511, 97 S.Ct. 1932, 1939-1942, 52 L.Ed.2d 531 (1977) (BRENNAN, J., concurring). 103 Pacifica, in response to an FCC inquiry about its broadcast of Carlin's satire on " 'the words you couldn't say on the public . . . airwaves,' " explained that "Carlin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words." 56 F.C.C.2d, at 95, 96. In confirming Carlin's prescience as a social commentator by the result it reaches today, the Court evinces an attitude toward the "seven dirty words" that many others besides Mr. Carlin and Pacifica might describe as "silly." Whether today's decision will similarly prove "harmless" remains to be seen. One can only hope that it will. 104 Mr. Justice STEWART, with whom Mr. Justice BRENNAN, Mr. Justice WHITE, and Mr. Justice MARSHALL join, dissenting. 105 The Court today recognizes the wise admonition that we should "avoid the unnecessary decision of [constitutional] issues." Ante, at 734. But it disregards one important application of this salutary principle—the need to construe an Act of Congress so as to avoid, if possible, passing upon its constitutionality.1 It is apparent that the constitutional questions raised by the order of the Commission in this case are substantial.2 Before deciding them, we should be certain that it is necessary to do so. 106 The statute pursuant to which the Commission acted, 18 U.S.C. § 1464 (1976 ed.),3 makes it a federal offense to utter "any obscene, indecent, or profane language by means of radio communication." The Commission held, and the Court today agrees, that "indecent" is a broader concept than "obscene" as the latter term was defined in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, because language can be "indecent" although it has social, political, or artistic value and lacks prurient appeal. 56 F.C.C.2d 94, 97-98.4 But this construction of § 1464, while perhaps plausible, is by no means compelled. To the contrary, I think that "indecent" should properly be read as meaning no more than "obscene." Since the Carlin monologue concededly was not "obscene," I believe that the Commission lacked statutory authority to ban it. Under this construction of the statute, it is unnecessary to address the difficult and important issue of the Commission's constitutional power to prohibit speech that would be constitutionally protected outside the context of electronic broadcasting. 107 This Court has recently decided the meaning of the term "indecent" in a closely related statutory context. In Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, the petitioner was convicted of violating 18 U.S.C. § 1461, which prohibits the mailing of "[e]very obscene, lewd, lascivious, indecent, filthy or vile article." The Court "construe[d] the generic terms in [§ 1461] to be limited to the sor of 'patently offensive representations or descriptions of that specific "hard core" sexual conduct given as examples in Miller v. California.' " 418 U.S., at 114, 94 S.Ct., at 2906, quoting United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 130 n. 7, 93 S.Ct. 2665, 2670, 37 L.Ed.2d 500. Thus, the clear holding of Hamling is that "indecent" as used in § 1461 has the same meaning as "obscene" as that term was defined in the Miller case. See also Marks v. United States, 430 U.S. 188, 190, 97 S.Ct. 990, 992, 51 L.Ed.2d 260 (18 U.S.C. § 1465). 108 Nothing requires the conclusion that the word "indecent" has any meaning in § 1464 other than that ascribed to the same word in § 1461.5 Indeed, although the legislative history is largely silent,6 such indications as there are support the view that §§ 1461 and 1464 should be construed similarly. The view that "indecent" means no more than "obscene" in § 1461 and similar statutes long antedated Hamling. See United States v. Bennett, 24 Fed.Cas. p. 1093 (No. 14,571) (CC SDNY 1879); Dunlop v. United States, 165 U.S. 486, 500-501, 17 S.Ct. 375, 380, 41 L.Ed. 799; Manual Enterprises v. Day, 370 U.S. 478, 482-484, 487, 82 S.Ct. 1432, 1434-1435, 1437, 8 L.Ed.2d 639 (opinion of Harlan, J.).7 And although §§ 1461 and 1464 were originally enacted separately, they were codified together in the Criminal Code of 1948 as part of a chapter entitled "Obscenity." There is nothing in the legislative history to suggest that Congress intended that the same word in two closely related sections should have different meanings. See H.R.Rep.No.304, 80th Cong., 1st Sess., A104-A106 (1947). 109 I would hold, therefore, that Congress intended, by using the word "indecent" in § 1464, to prohibit nothing more than obscene speech.8 Under that reading of the statute, the Commission's order in this case was not authorized, and on that basis I would affirm the judgment of the Court of Appeals. 1 56 F.C.C.2d, at 99. The Commission noted: "Congress has specifically empowered the FCC to (1) revoke a station's license (2) issue a cease and desist order, or (3) impose a monetary forfeiture for a violation of Section 1464, 47 U.S.C. [§§] 312(a), 312(b), 503(b)(1)(E). The FCC can also (4) deny license renewal or (5) grant a short term renewal, 47 U.S.C. [§§] 307, 308." Id., at 96 n. 3. 2 Broadcasting requires special treatment because of four important considerations: (1) children have access to radios and in many cases are unsupervised by parents; (2) radio receivers are in the home, a place where people's privacy interest is entitled to extra deference, see Rowan v. Post Office Dept., 397 U.S. 728 [90 S.Ct. 1484, 25 L.Ed.2d 736] (1970); (3) unconsenting adults may tune in a station without any warning that offensive language is being or will be broadcast; and (4) there is a scarcity of spectrum space, the use of which the government must therefore license in the public interest. Of special concern to the Commission as well as parents is the first point regarding the use of radio by children." Id., at 97. 3 Title 18 U.S.C. § 1464 (1976 ed.) provides: "Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both." 4 Section 303(g) of the Communications Act of 1934, 48 Stat. 1082, as amended, as set forth in 47 U.S.C. § 303(g), in relevant part, provides: "Except as otherwise provided in this chapter, the Commission from time to time, as public convenience, interest, or necessity requires, shall— * * * * * "(g) . . . generally encourage the larger and more effective use of radio in the public interest." 5 Thus, the Commission suggested, if an offensive broadcast had literary, artistic, political, or scientific value, and were preceded by warnings, it might not be indecent in the late evening, but would be so during the day, when children are in the audience. 56 F.C.C.2d, at 98. 6 Chairman Wiley concurred in the result without joining the opinion. Commissioners Reid and Quello filed separate statements expressing the opinion that the language was inappropriate for broadcast at any time. Id., at 102-103. Commissioner Robinson, joined by Commissioner Hooks, filed a concurring statement expressing the opinion: "[W]e can regulate offensive speech to the extent it constitutes a public nuisance. . . . The governing idea is that 'indecency' is not an inherent attribute of words themselves; it is rather a matter of context and conduct. . . . If I were called on to do so, I would find that Carlin's monologue, if it were broadcast at an appropriate hour and accompanied by suitable warning, was distinguished by sufficient literary value to avoid being 'indecent' within the meaning of the statute." Id., at 107-108, and n. 9. 7 The Commission did, however comment: " '[I]n some cases, public events likely to produce offensive speech are covered live, and there is no opportunity for journalistic editing.' Under these circumstances we believe that it would be inequitable for us to hold a licensee responsible for indecent language. . . . We trust that under such circumstances a licensee will exercise judgment, responsibility, and sensitivity to the community's needs, interests and tastes." 59 F.C.C.2d, at 893 n. 1. 8 "Nothing in this Act shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication." 48 Stat. 1091, 47 U.S.C. § 326. 9 Zechariah Chafee, defending the Commission's authority to take into account program service in granting licenses, interpreted the restriction on "censorship" narrowly: "This means, I feel sure, the sort of censorship which went on in the seventeenth century in England—the deletion of specific items and dictation as to what should go into particular programs." 2 Z. Chafee, Government and Mass Communications 641 (1947). 10 In KFKB Broadcasting Assn. v. Federal Radio Comm'n, 60 App.D.C. 79, 47 F.2d 670 (1931), a doctor who controlled a radio station as well as a pharmaceutical association made frequent broadcasts in which he answered the medical questions of listeners. He often prescribed mixtures prepared by his pharmaceutical association. The Commission determined that renewal of the station's license would not be in the public interest, convenience, or necessity because many of the broadcasts served the doctor's private interests. In response to the claim that this was censorship in violation of § 29 of the 1927 Act, the Court held: "This contention is without merit. There has been no attempt on the part of the commission to subject any part of appellant's broadcasting matter to scrutiny prior to its release In considering the question whether the public interest, convenience, or necessity will be served by a renewal of appellant's license, the commission has merely exercised its undoubted right to take note of appellant's past conduct, which is not censorship." 60 App.D.C., at 81, 47 F.2d, at 672. In Trinity Methodist Church, South v. Federal Radio Comm'n, 61 App.D.C. 311, 62 F.2d 850 (1932), cert. denied, 288 U.S. 599, 53 S.Ct. 317, 77 L.Ed. 975, the station was controlled by a minister whose broadcasts contained frequent references to "pimps" and "prostitutes" as well as bitter attacks on the Roman Catholic Church. The Commission refused to renew the license, citing the nature of the broadcasts. The Court of Appeals affirmed, concluding that First Amendment concerns did not prevent the Commission from regulating broadcasts that "offend the religious susceptibilities of thousands . . . or offend youth and innocence by the free use of words suggestive of sexual immorality." 61 App.D.C., at 314, 62 F.2d, at 853. The court recognized that the licensee had a right to broadcast this material free of prior restraint, but "this does not mean that the government, through agencies established by Congress, may not refuse a renewal of license to one who has abused it." Id., at 312, 62 F.2d, at 851. 11 See, e. g., Bay State Beacon, Inc. v. FCC, 84 U.S.App.D.C. 216, 171 F.2d 826 (1948); Idaho Microwave, Inc. v. FCC, 122 U.S.App.D.C. 253, 352 F.2d 729 (1965); National Assn. of Theatre Owners v. FCC, 136 U.S.App.D.C. 352, 420 F.2d 194 (1969), cert. denied, 397 U.S. 922, 90 S.Ct. 914, 25 L.Ed.2d 102. 12 See, e. g., 67 Cong.Rec. 12615 (1926) (remarks of Sen. Dill); id., at 5480 (remarks of Rep. White); 68 Cong.Rec. 2567 (1927) (remarks of Rep. Scott); Hearings on S.1 and S.1754 before the Senate Committee on Interstate Commerce, 69th Cong., 1st Sess., 121 (1926); Hearings on H.R.5589 before the House Committee on the Merchant Marine and Fisheries, 69th Cong., 1st Sess., 26 and 40 (1926). See also Hearings on H.R.8825 before the House Committee on the Merchant Marine and Fisheries, 70th Cong., 1st Sess., passim (1928). 13 In addition to § 1464, the Commission also relied on its power to regulate in the public interest under 47 U.S.C. § 303(g). We do not need to consider whether § 303 may have independent significance in a case such as this. The statutes authorizing civil penalties incorporate § 1464, a criminal statute. See 47 U.S.C. §§ 312(a)(6), 312(b)(2), and 503(b)(1)(E) (1970 ed. and Supp. V). But the validity of the civil sanctions is not linked to the validity of the criminal penalty. The legislative history of the provisions establishes their independence. As enacted in 1927 and 1934, the prohibition on indecent speech was separate from the provisions imposing civil and criminal penalties for violating the prohibition. Radio Act of 1927, §§ 14, 29, and 33, 44 Stat. 1168 and 1173; Communications Act of 1934, §§ 312, 326, and 501, 48 Stat. 1086, 1091, and 1100, 47 U.S.C. §§ 312, 326, and 501 (1970 ed. and Supp. V). The 1927 and 1934 Acts indicated in the strongest possible language that any invalid provision was separable from the rest of the Act. Radio Act of 1927, § 38, 44 Stat. 1174; Communications Act of 1934, § 608, 48 Stat. 1105, 47 U.S.C. § 608. Although the 1948 codification of the criminal laws and the addition of new civil penalties changed the statutory structure, no substantive change was apparently intended. Cf. Tidewater Oil Co. v. United States, 409 U.S. 151, 162, 93 S.Ct. 408, 415, 34 L.Ed.2d 375. Accordingly, we need not consider any question relating to the possible application of § 1464 as a criminal statute. 14 Webster defines the term as "a: altogether unbecoming: contrary to what the nature of things or what circumstances would dictate as right or expected or appropriate: hardly suitable: UNSEEMLY . . . b: not conforming to generally accepted standards of morality: . . . ." Webster's Third New International Dictionary (1966). 15 Indeed, at one point, he used "indecency" as a shorthand term for "patent offensiveness," 370 U.S., at 482, 82 S.Ct., at 1434, a usage strikingly similar to the Commission's definition in this case. 56 F.C.C.2d, at 98. 16 " '[W]hile a nudist magazine may be within the protection of the First Amendment . . . the televising of nudes might well raise a serious question of programing contrary to 18 U.S.C. § 1464 . . . . Similarly, regardless of whether the "4-letter words" and sexual description, set forth in "lady Chatterly's Lover," (when considered in the context of the whole book) make the book obscene for mailability purposes, the utterance of such words or the depiction of such sexual activity on radio or TV would raise similar public interest and section 1464 questions.' " Enbanc Programing Inquiry, 44 F.C.C. 2303, 2307 (1960). See also In re WUHY-FM, 24 F.C.C.2d 408, 412 (1970); In re Sonderling Broadcasting Corp., 27 R.R.2d 285, on reconsideration, 41 F.C.C.2d 777 (1973), aff'd on other grounds sub nom. Illinois Citizens Committee for Broadcasting v. FCC, 169 U.S.App.D.C. 166, 515 F.2d 397 (1974); In re Mile High Stations, Inc., 28 F.C.C. 795 (1960); In re Palmetto Broadcasting Co., 33 F.C C. 250 (1962), reconsideration denied, 34 F.C.C. 101 (1963), aff'd on other grounds sub nom. Robinson v. FCC, 118 U.S.App.D.C. 144, 334 F.2d 534 (1964), cert. denied, 379 U.S. 843, 85 S.Ct. 84, 13 L.Ed.2d 49. 17 This conclusion is reinforced by noting the different constitutional limits on Congress' power to regulate the two different subjects. Use of the postal power to regulate material that is not fraudulent or obscene raises "grave constitutional questions." Hannegan v. Esquire, Inc., 327 U.S. 146, 156, 66 S.Ct. 456, 461, 90 L.Ed. 586. But it is well settled that the First Amendment has a special meaning in the broadcasting context. See, e. g., FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 98 S.Ct. 2096, 56 L.Ed.2d 697; Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371; Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772. For this reason, the presumption that Congress never intends to exceed constitutional limits, which supported Hamling's narrow reading of § 1461, does not support a comparable reading of § 1464. 18 A requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication. There are few, if any, thoughts that cannot be expressed by the use of less offensive language. 19 Pacifica's position would, of course, deprive the Commission of any power to regulate erotic telecasts unless they were obscene under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. Anything that could be sold at a newsstand for private examination could be publicly displayed on television. We are assured by Pacifica that the free play of market forces will discourage indecent programming. "Smut may," as Judge Leventhal put it, "drive itself from the market and confound Gresham," 181 U.S.App.D.C., at 158, 556 F.2d, at 35; the prosperity of those who traffic in pornographic literature and films would appear to justify skepticism. 20 Although neither Mr. Justice POWELL nor Mr. Justice BRENNAN directly confronts this question, both have answered it affirmatively, the latter explicitly, post, at 768 n. 3, and the former implicitly by concurring in a judgment that could not otherwise stand. 21 See, e. g., Madison School District v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175-176, 97 S.Ct. 421, 426, 50 L.Ed.2d 376; First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707. 22 The monologue does present a point of view; it attempts to show that the words it uses are "harmless" and that our attitudes toward them are "essentially silly." See supra, at 730. The Commission objects, not to this point of view, but to the way in which it is expressed. The belief that these words are harmless does not necessarily confer a First Amendment privilege to use them while proselytizing, just as the conviction that obscenity is harmless does not license one to communicate that conviction by the indiscriminate distribution of an obscene leaflet. 23 The Commission stated: "Obnoxious, gutter language describing these matters has the effect of debasing and brutalizing human beings by reducing them to their mere bodily functions . . . ." 56 F.C.C.2d, at 98. Our society has a tradition of performing certain bodily functions in private, and of severely limiting the public exposure or discussion of such matters. Verbal or physical acts exposing those intimacies are offensive irrespective of any message that may accompany the exposure. 24 With respect to other types of speech, the Court has tailored its protection to both the abuses and the uses to which it might be put. See, e. g., New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (special scienter rules in libel suits brought by public officials); Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (government may strictly regulate truthfulness in commercial speech). See also Young v. American Mini Theatres, Inc., 427 U.S. 50, 82 n. 6, 96 S.Ct. 2440, 2458, 49 L.Ed.2d 310 (POWELL, J., concurring). 25 The importance of context is illustrated by the Cohen case. That case arose when Paul Cohen entered a Los Angeles courthouse wearing a jacket emblazoned with the words "Fuck the Draft." After entering the courtroom, he took the jacket off and folded it. 403 U.S., at 19 n. 3, 91 S.Ct., at 1785. So far as the evidence showed, no one in the courthouse was offended by his jacket. Nonetheless, when he left the courtroom, Cohen was arrested, convicted of disturbing the peace, and sentenced to 30 days in prison. In holding that criminal sanctions could not be imposed on Cohen for his political statement in a public place, the Court rejected the argument that his speech would offend unwilling viewers; it noted that "there was no evidence that persons powerless to avoid [his] conduct did in fact object to it." Id., at 22, 91 S.Ct., at 1786. In contrast, in this case the Commission was responding to a listener's strenuous complaint, and Pacifica does not question its determination that this afternoon broadcast was likely to offend listeners. It should be noted that the Commission imposed a far more moderate penalty on Pacifica than the state court imposed on Cohen. Even the strongest civil penalty at the Commission's command does not include criminal prosecution. See n. 1, supra. 26 47 U.S.C. §§ 309(a), 312(a)(2); FCC v. WOKO, Inc., 329 U S. 223, 229, 67 S.Ct. 213, 216, 91 L.Ed. 204. Cf. Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162; Staub v. Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302. 27 Outside the home, the balance between the offensive speaker and the unwilling audience may sometimes tip in favor of the speaker, requiring the offended listener to turn away. See Erznoznik v. Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125. As we noted in Cohen v. California: "While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue . . . , we have at the same time consistently stressed that 'we are often "captives" outside the sanctuary of the home and subject to objectionable speech.' " 403 U.S., at 21, 91 S.Ct., at 1786. The problem of harassing phone calls is hardly hypothetical. Congress has recently found it necessary to prohibit debt collectors from "plac[ing] telephone calls without meaningful disclosure of the caller's identity"; from "engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number"; and from "us[ing] obscene or profane language or language the natural consequence of which is to abuse the hearer or reader." Consumer Credit Protection Act Amendments, 91 Stat. 877, 15 U.S.C. § 169 2d (1976 ed., Supp. II). 28 The Commission's action does not by any means reduce adults to hearing only what is fit for children. Cf. Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 526, 1 L.Ed.2d 412. Adults who feel the need may purchase tapes and records or go to theaters and nightclubs to hear these words. In fact, the Commission has not unequivocally closed even broadcasting to speech of this sort; whether broadcast audiences in the late evening contain § few children that playing this monologue would be permissible is an issue neither the Commission nor this Court has decided. 29 Even a prime-time recitation of Geoffrey Chaucer's Miller's Tale would not be likely to command the attention of many children who are both old enough to understand and young enough to be adversely affected by passages such as: "And prively he caughte hire by the queynte." The Canterbury Tales, Chaucer's Complete Works (Cambridge ed. 1933), p. 58, l. 3276: 1 See generally Judge Leventhal's thoughtful opinion in the Court of Appeals. 181 U.S.App.D.C. 132, 155-158, 556 F.2d 9, 32-35 (1977) (dissenting opinion). 2 It is true that the radio listener quickly may tune out speech that is offensive to him. In addition, broadcasters may preface potentially offensive programs with warnings. But such warnings do not help the unsuspecting listener who tunes in at the middle of a program. In this respect, too, broadcasting appears to differ from books and records, which may carry warnings on their face, and from motion pictures and live performances, which may carry warnings on their marquees. 3 The Court has, however, created a limited exception to this rule in order to bring commercial speech within the protection of the First Amendment. See Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455-456, 98 S.Ct. 1912, 1918-1919, 56 L.Ed.2d 444 (1978). 4 For much the same reason, I also do not join Part IV-A. I had not thought that the application vel non of overbreadth analysis should depend on the Court's judgment as to the value of the protected speech that might be deterred. Cf. ante, at 3037. Except in the context of commercial speech, see Bates v. State Bar of Arizona, 433 U.S. 350, 380-381, 97 S.Ct. 2691, 2707-2708, 53 L.Ed.2d 810 (1977), it has not in the past. See, e. g., Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). As Mr. Justice STEVENS points out, however, ante, at 734, the Commission's order was limited to the facts of this case; "it did not purport to engage in formal rulemaking or in the promulgation of any regulations." In addition, since the Commission may be expected to proceed cautiously, as it has in the past, cf. Brief for Petitioner 42-43, and n. 31, I do not foresee an undue "chilling" effect on broadcasters' exercise of their rights. I agree, therefore, that respondent's overbreadth challenge is meritless. 1 Where I refer without differentiation to the actions of "the Court," my reference is to this majority, which consists of my Brothers POWELL and STEVENS and those Members of the Court joining their separate opinions. 2 Even if the monologue appealed to the prurient interest of minors, it would not be obscene as to them unless, as to them, "the work, taken as a whole, lacks serio § literary, artistic, political, or scientific value." Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973). 3 It may be that a narrowly drawn regulation prohibiting the use of offensive language on broadcasts directed specifically at younger children constitutes one of the "other legitimate proscription[s]" alluded to in Erznoznik. This is so both because of the difficulties inherent in adapting the Miller formulation to communications received by young children, and because such children are "not possessed of that full capacity for individual choice which is the presupposition of the First Amendment guarantees." Ginsberg v. New York, 390 U.S. 629, 649-650, 88 S.Ct. 1274, 1286, 20 L.Ed.2d 195 (1968) (STEWART, J., concurring). I doubt, as my Brother STEVENS suggests, ante, at 745 n. 20, that such a limited regulation amounts to a regulation of speech based on its content, since, by hypothesis, the only persons at whom the regulated communication is directed are incapable of evaluating its content. To the extent that such a regulation is viewed as a regulation based on content, it marks the outermost limits to which content regulation is permissible. 4 The opinions of my Brothers POWELL and STEVENS rightly refrain from relying on the notion of "spectrum scarcity" to support their result. As Chief Judge Bazelon noted below, "although scarcity has justified increasing the diversity of speakers and speech, it has never been held to justify censorship." 181 U.S.App.D.C., at 152, 556 F.2d, at 29 (emphasis in original). See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 396, 89 S.Ct. 1794, 1809, 23 L.Ed.2d 371 (1969). 5 See, e. g., I Samuel 25:22: "So and more also do God unto the enemies of David, if I leave of all that pertain to him by the morning light any that pisseth against the wall"; II Kings 18:27 and Isaiah 36:12: "[H]ath he not sent me to the men which sit on the wall, that they may eat their own dung, and drink their own piss with you?"; Ezekiel 23:3: "And they committed whoredoms in Egypt; they committed whoredoms in their youth; there were their breasts pressed, and there they bruised the teats of their virginity."; Ezekiel 23:21: "Thus thou calledst to remembrance the lewdnes of thy youth, in bruising thy teats by the Egyptians for the paps of thy youth." The Holy Bible (King James Version) (Oxford 1897). 6 Although ultimately dependent upon the outcome of review in this Court, the approach taken by my Brother STEVENS would not appear to tolerate the FCC's suppression of any speech, such as political speech, falling within the core area of First Amendment concern. The same, however, cannot be said of the approach taken by my Brother POWELL, which, on its face, permits the Commission to censor even political speech if it is sufficiently offensive to community standards. A result more contrary to rudimentary First Amendment principles is difficult to imagine. 7 Having insisted that it seeks to impose sanctions on radio communications only in the limited circumstances present here, I believe that the FCC is estopped from using either this decision or its own orders in this case, 56 F.C.C.2d 94 (1975) and 59 F.C.C.2d 892 (1976), as a basis for imposing sanctions on any public radio broadcast other than one aired during the daytime or early evening and containing the relentless repetition, for longer than a brief interval, of "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs." 56 F.C.C.2d, at 98. For surely broadcasters are not now on notice that the Commission desires to regulate any offensive broadcast other than the type of "verbal shock treatment" condemned here, or even this "shock treatment" type of offensive broadcast during the late evening. 8 Under the approach taken by my Brother POWELL, the availability of broadcasts about groups whose members constitute such audiences might also be affected. Both news broadcasts about activities involving these groups and public affairs broadcasts about their concerns are apt to contain interviews, statements, or remarks by group leaders and members which may contain offensive language to an extent my Brother POWELL finds unacceptable. 1 See, e.g., Johnson v. Robison, 415 U.S. 361, 366-367, 94 S.Ct. 1160, 1165-1166, 39 L.Ed.2d 389; United States v. Thirty-seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404, 28 L.Ed.2d 822; Rescue Army v. Municipal Court, 331 U.S. 549, 569, 67 S.Ct. 1409, 1419-1420, 91 L.Ed. 1666; Ashwander v. TVA, 297 U.S. 288, 348, 56 S.Ct. 466, 483, 80 L.Ed. 688 (Brandeis, J., concurring); Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598. 2 The practice of construing a statute to avoid a constitutional confrontation is followed whenever there is " 'a serious doubt' " as to the statute's constitutionality. E. g., United States v. Rumely, 345 U.S. 41, 45, 73 S.Ct. 543, 545, 97 L.Ed. 770; Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 107, 72 L.Ed. 206 (opinion of Holmes, J.). Thus, the Court has construed a statute to avoid raising a doubt as to its constitutionality even though the Court later in effect held that the statute, otherwise construed, would have been constitutionally valid. Compare General Motors Corp. v. District of Columbia, 380 U.S. 553, 85 S.Ct. 1156, 14 L.Ed.2d 68, with Moorman Mfg. Co. v. Bair, 437 U.S. 267, 98 S.Ct. 2340, 57 L.Ed.2d 197. 3 The Court properly gives no weight to the Commission's passing reference in its order to 47 U.S.C. § 303(g). Ante, at 739 n. 13. For one thing, the order clearly rests only upon the Commission's interpretation of the term "indecent" in § 1464; the attempt by the Commission in this Court to assert that § 303(g) was an independent basis for its action must fail. Cf. SEC v. Chenery Corp., 318 U.S. 80, 94-95, 63 S.Ct. 454, 462-463, 87 L.Ed. 626; SEC v. Sloan, 436 U.S. 103, 117-118, 98 S.Ct. 1702, 1711-1712, 56 L.Ed.2d 148. Moreover, the general language of § 303(g) cannot be used to circumvent the terms of a specific statutory mandate such as that of § 1464. "[T]he Commission's power in this respect is limited by the scope of the statute. Unless the [language] involved here [is] illegal under § [1464], the Commission cannot employ the statute to make [it] so by agency action." FCC v. American Broadcasting Co., 347 U.S. 284, 290, 74 S.Ct. 593, 597, 98 L.Ed. 699. 4 The Commission did not rely on § 1464's prohibition of "profane" language, and it is thus unnecessary to consider the scope of that term. 5 The only Federal Court of Appeals (apart from this case) to consider the question has held that " 'obscene' and 'indecent' in § 1464 are to be read as parts of a single proscription, applicable only if the challenged language appeals to the prurient interest." United States v. Simpson, 561 F.2d 53, 60 (CA7). 6 Section 1464 originated as part of § 29 of the Radio Act of 1927, 44 Stat. 1172, which was re-enacted as § 326 of the Communications Act of 1934, 48 Stat. 1091. Neither the committee reports nor the floor debates contain any discussion of the meaning of "obscene, indecent or profane language." 7 When the Federal Communications Act was amended in 1968 to prohibit "obscene, lewd, lascivious, filthy, or indecent" telephone calls, 82 Stat. 112, 47 U.S.C. § 223, the FCC itself indicated that it thought this language covered only "obscene" telephone calls. See H.R.Rep.No.1109, 90th Cong., 2d Sess., 7-8 (1968), U.S.Code Cong. & Admin.News 1968, p. 1915. 8 This construction is further supported by the general rule of lenity in construing criminal statutes. See Adamo Wrecking Co. v. United States, 434 U.S. 275, 285, 98 S.Ct. 566, 573, 54 L.Ed.2d 538. The Court's statement that it need not consider the meaning § 1464 would have in a criminal prosecution, ante, at 739 n. 13, is contrary to settled precedent: "It is true . . . that these are not criminal cases, but it is a criminal statute that we must interpret. There cannot be one construction for the Federal Communications Commission and another for the Department of Justice. If we should give § [1464] the broad construction urged by the Commission, the same construction would likewise apply in criminal cases." FCC v. American Broadcasting Co., supra, 347 U.S., at 296, 74 S.Ct., at 600.

23

438 U.S. 586 98 S.Ct. 2954 57 L.Ed.2d 973 Sandra LOCKETT, Petitioner,v.State of OHIO. No. 76-6997. Argued Jan. 17, 1978. Decided July 3, 1978. Syllabus The Ohio death penalty statute provides that once a defendant is found guilty of aggravated murder with at least one of seven specified aggravating circumstances, the death penalty must be imposed unless considering "the nature and circumstances of the offense and the history, character, and condition of the offender," the sentencing judge determines that at least one of the following circumstances is established by a preponderance of the evidence: (1) the victim induced or facilitated the offense; (2) it is unlikely that the offense would have been committed but for the fact that the offender was under duress, coercion, or strong provocation; or (3) the offense was primarily the product of the offender's psychosis or mental deficiency. Petitioner, whose conviction of aggravated murder with specifications that it was committed to escape apprehension for, and while committing or attempting to commit, aggravated robbery, and whose sentence to death were affirmed by the Ohio Supreme Court, makes various challenges to the validity of her conviction, and attacks the constitutionality of the death penalty statute on the ground, inter alia, that it does not give the sentencing judge a full opportunity to consider mitigating circumstances in capital cases as required by the Eighth and Fourteenth Amendments. Held : The judgment is reversed insofar as it upheld the death penalty and the case is remanded. Pp. 594-609; 613-619; 619-621; 624-628. 49 Ohio St.2d 48, 358 N.E.2d 1062, reversed in part and remanded. THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I and II, concluding: 1 1. The prosecutor's closing references to the State's evidence as "unrefuted" and "uncontradicted" (no evidence having been introduced to rebut the prosecutor's case after petitioner decided not to testify) did not violate the constitutional prohibitions against commenting on an accused's failure to testify, where petitioner's counsel had already focused the jury's attention on her silence by promising a defense and telling the jury that she would testify. Pp. 2959-2960. 2 2. The exclusion from the venire of four prospective jurors who made it "unmistakably clear" that because of their opposition to the death penalty, they could not be trusted to "abide by existing law" and to "follow conscientiously" the trial judge's instructions, Boulden v. Holman, 394 U.S. 478, 484, 89 S.Ct. 1138, 1142, 22 L.Ed.2d 433, did not violate petitioner's Sixth and Fourteenth Amendment rights under the principles of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, or Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690. Pp. 595-597. 3 3. Petitioner's contention that the Ohio Supreme Court's interpretation of the complicity provision of the statute under which she was convicted was so unexpected that it deprived her of fair warning of the crime with which she was charged, is without merit. The court's construction was consistent with both prior Ohio law and the statute's legislative history. P. 597. 4 THE CHIEF JUSTICE, joined by Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS, concluded, in Part III, that the limited range of mitigating circumstances that may be considered by the sentencer under the Ohio death penalty statute is incompatible with the Eighth and Fourteenth Amendments. Pp. 597-609. 5 (a) The Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Pp. 604-605. 6 (b) The need for treating each defendant in a capital case with the degree of respect due the uniqueness of the individual is far more important than in noncapital cases, particularly in view of the unavailability with respect to an executed capital sentence of such postconviction mechanisms in noncapital cases as probation, parole, and work furloughs. P. 605. 7 (c) A statute that prevents the sentencer in capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to the circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors that may call for a less severe penalty, and when the choice is between life and death, such risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments. P. 605. 8 (d) The Ohio death penalty statute does not permit the type of individualized consideration of mitigating factors required by the Eighth and Fourteenth Amendments. Only the three factors specified in the statute can be considered in mitigation of the defendant's sentence, and once it is determined that none of those factors is present, the statute mandates the death sentence. Pp. 606-608. 9 Mr. Justice WHITE concluded that petitioner's death sentence should be vacated on the ground that the Ohio death penalty statute permits a defendant convicted of aggravated murder with specifications to be sentenced to death, as petitioner was in this case, without a finding that he intended death to result. Pp. 624-628. 10 Mr. Justice MARSHALL, being of the view that the death penalty is, under all circumstances, a cruel and unusual punishment prohibited by the Eighth Amendment, concurred in the judgment insofar as it vacates petitioner's death sentence, and also concurred in the judgment insofar as it affirms her conviction. Pp. 619-621. 11 Mr. Justice BLACKMUN concluded that petitioner's death sentence should be vacated on the grounds that (1) the Ohio death penalty statute is deficient in regard to petitioner, a nontriggerman charged with aiding and abetting a murder, in failing to allow consideration of the extent of petitioner's involvement, or the degree of her mens rea, in the commission of the homicide, and (2) the procedure provided by an Ohio Rule of Criminal Procedure giving the sentencing court full discretion to bar the death sentence "in the interests of justice" if the defendant pleads guilty or no contest, but no such discretion if the defendant goes to trial, creat § an unconstitutional disparity of sentencing alternatives. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138. Pp. 613-619. 12 Anthony G. Amsterdam, Stanford, Cal., for petitioner. 13 Carl M. Layman, III, Akron, Ohio, for respondent. 14 Mr. Chief Justice BURGER delivered the opinion of the Court with respect to the constitutionality of petitioner's conviction (Parts I and II), together with an opinion (Part III), in which Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS joined, on the constitutionality of the statute under which petitioner was sentenced to death, and announced the judgment of the Court. 15 We granted certiorari in this case to consider, among other questions, whether Ohio violated the Eighth and Fourteenth amendments by sentencing Sandra Lockett to death pursuant to a statute1 that narrowly limits the sentencer's discretion to consider the circumstances of the crime and the record and character of the offender as mitigating factors. 16 * Lockett was charged with aggravated murder with the aggravating specifications (1) that the murder was "committed for the purpose of escaping detection, apprehension, trial, or punishment" for aggravated robbery, and (2) that the murder was "committed while . . . committing, attempting to commit, or fleeing immediately after committing or attempting to commit . . . aggravated robbery." That offense was punishable by death in Ohio. See Ohio Rev.Code Ann. §§ 2929.03, 2929.04 (1975). She was also charged with aggravated robbery. The State's case against her depended largely upon the testimony of a coparticipant, one Al Parker, who gave the following account of her participation in the robbery and murder. 17 Lockett became acquainted with Parker and Nathan Earl Dew while she and a friend, Joanne Baxter, were in New Jersey. Parker and Dew then accompanied Lockett, Baxter, and Lockett's brother back to Akron, Ohio, Lockett's hometown. After they arrived in Akron, Parker and Dew needed money for the trip back to New Jersey. Dew suggested that he pawn his ring. Lockett overheard his suggestion, but felt that the ring was too beautiful to pawn, and suggested instead that they could get some money by robbing a grocery store and a furniture store in the area. She warned that the grocery store's operator was a "big guy" who carried a "45" and that they would have "to get him real quick." She also volunteered to get a gun from her father's basement to aid in carrying out the robberies, but by that time, the two stores had closed and it was too late to proceed with the plan to rob them. 18 Someone, apparently Lockett's brother, suggested a plan for robbing a pawnshop. He and Dew would enter the shop and pretend to pawn a ring. Next Parker, who had some bullets, would enter the shop, ask to see a gun, load it, and use it to rob the shop. No one planned to kill the pawnshop operator in the course of the robbery. Because she knew the owner, Lockett was not to be among those entering the pawnshop, though she did guide the others to the shop that night. 19 The next day Parker, Dew, Lockett, and her brother gathered at Baxter's apartment. Lockett's brother asked if they were "still going to do it," and everyone, including Lockett, agreed to proceed. The four then drove by the pawnshop several times and parked the car. Lockett's brother and Dew entered the shop. Parker then left the car and told Lockett to start it again in two minutes. The robbery proceeded according to plan until the pawnbroker grabbed the gun when Parker announced the "stickup." The gun went off with Parker's finger on the trigger firing a fatal shot into the pawnbroker. 20 Parker went back to the car where Lockett waited with the engine running. While driving away from the pawnshop, Parker told Lockett what had happened. She took the gun from the pawnshop and ut it into her purse. Lockett and Parker drove to Lockett's aunt's house and called a taxicab. Shortly thereafter, while riding away in a taxicab, they were stopped by the police, but by this time Lockett had placed the gun under the front seat. Lockett told the police that Parker rented a room from her mother and lived with her family. After verifying this story with Lockett's parents, the police released Lockett and Parker. Lockett hid Dew and Parker in the attic when the police arrived at the Lockett household later that evening. 21 Parker was subsequently apprehended and charged with aggravated murder with specifications, an offense punishable by death, and aggravated robbery. Prior to trial, he pleaded guilty to the murder charge and agreed to testify against Lockett, her brother, and Dew. In return, the prosecutor dropped the aggravated robbery charge and the specifications to the murder charge, thereby eliminating the possibility that Parker could receive the death penalty. 22 Lockett's brother and Dew were later convicted of aggravated murder with specifications. Lockett's brother was sentenced to death, but Dew received a lesser penalty because it was determined that his offense was "primarily the product of mental deficiency," one of the three mitigating circumstances specified in the Ohio death penalty statute. 23 Two weeks before Lockett's separate trial, the prosecutor offered to permit her to plead guilty to voluntary manslaughter and aggravated robbery (offenses which each carried a maximum penalty of 25 years' imprisonment and a maximum fine of $10,000, see Ohio Rev.Code Ann. §§ 2903.03, 2911.01, 2929.11 (1975)) if she would cooperate with the State, but she rejected the offer. Just prior to her trial, the prosecutor offered to permit her to plead guilty to aggravated murder without specifications, an offense carrying a mandatory life penalty, with the understanding that the aggravated robbery charge and an outstanding forgery charge would be dismissed. Again she rejected the offer. 24 At trial, the opening argument of Lockett's defense counsel summarized what appears to have been Lockett's version of the events leading to the killing. He asserted the evidence would show that, as far as Lockett knew, Dew and her brother had planned to pawn Dew's ring for $100 to obtain money for the trip back to New Jersey. Lockett had not waited in the car while the men went into the pawnshop but had gone to a restaurant for lunch and joined Parker, thinking the ring had been pawned, after she saw him walking back to the car. Lockett's counsel asserted that the evidence would show further that Parker had placed the gun under the seat in the taxicab and that Lockett had voluntarily gone to the police station when she learned that the police were looking for the pawnbroker's killers. 25 Parker was the State's first witness. His testimony related his version of the robbery and shooting, and he admitted to a prior criminal record of breaking and entering, larceny, and receiving stolen goods, as well as bond jumping. He also acknowledged that his plea to aggravated murder had eliminated the possibility of the death penalty, and that he had agreed to testify against Lockett, her brother, and Dew as part of his plea agreement with the prosecutor. At the end of the major portion of Parker's testimony, the prosecutor renewed his offer to permit Lockett to plead guilty to aggravated murder without specifications and to drop the other charges against her. For the third time Lockett refused the option of pleading guilty to a lesser offense. 26 Lockett called Dew and her brother as defense witnesses, but they invoked their Fifth Amendment rights and refused to testify. In the course of the defense presentation, Lockett's counsel informed the court, in the presence of the jury, that he believed Lockett was to be the next witness and requested a short recess. After the recess, Lockett's counsel told the judge that Lockett wished to testify but had decided to acc pt her mother's advice to remain silent, despite her counsel's warning that, if she followed that advice, she would have no defense except the cross-examination of the State's witnesses. Thus, the defense did not introduce any evidence to rebut the prosecutor's case. 27 The court instructed the jury that, before it could find Lockett guilty, it had to find that she purposely had killed the pawnbroker while committing or attempting to commit aggravated robbery. The jury was further charged that one who 28 "purposely aids, helps, associates himself or herself with another for the purpose of committing a crime is regarded as if he or she were the principal offender and is just as guilty as if the person performed every act constituting the offense. . . . " 29 Regarding the intent requirement, the court instructed: 30 "A person engaged in a common design with others to rob by force and violence an individual or individuals of their property is presumed to acquiescence in whatever may reasonably be necessary to accomplish the object of their enterprise. . . . 31 "If the conspired robbery and the manner of its accomplishment would be reasonably likely to produce death, each plotter is equally guilty with the principal offender as an aider and abettor in the homicide . . . . An intent to kill by an aider and abettor may be found to exist beyond a reasonable doubt under such circumstances." 32 The jury found Lockett guilty as charged. 33 Once a verdict of aggravated murder with specifications had been returned, the Ohio death penalty statute required the trial judge to impose a death sentence unless, after "considering the nature and circumstances of the offense" and Lockett's "history, character, and condition," he found by a preponderance of the evidence that (1) the victim had induced or facilitated the offense, (2) it was unlikely that Lockett would have committed the offense but for the fact that she "was under duress, coercion, or strong provocation," or (3) the offense was "primarily the product of [Lockett's] psychosis or mental deficiency." Ohio Rev.Code §§ 2929.03-2929.04(B) (1975). 34 In accord with the Ohio statute, the trial judge requested a presentence report as well as psychiatric and psychological reports. The reports contained detailed information about Lockett's intelligence, character, and background. The psychiatric and psychological reports described her as a 21-year-old with low-average or average intelligence, and not suffering from a mental deficiency. One of the psychologists reported that "her prognosis for rehabilitation" if returned to society was favorable. The presentence report showed that Lockett had committed no major offenses although she had a record of several minor ones as a juvenile and two minor offenses as an adult. It also showed that she had once used heroin but was receiving treatment at a drug abuse clinic and seemed to be "on the road to success" as far as her drug problem was concerned. It concluded that Lockett suffered no psychosis and was not mentally deficient.2 35 After considering the reports and hearing argument on the penalty issue, the trial judge concluded that the offense had not been primarily the product of psychosis or mental deficiency. Without specifically addressing the other two statutory mitigating factors, the judge said that he had "no alternative, whether [he] like[d] the law or not" but to impose the death penalty. He then sentenced Lockett to death. II A. 36 At the outset, we address Lockett's various challenges to the validity of her conviction. Her first cont ntion is that the prosecutor's repeated references in his closing remarks to the State's evidence as "unrefuted" and "uncontradicted" constituted a comment on her failure to testify and violated her Fifth and Fourteenth Amendment rights. See Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965). We conclude, however, that the prosecutor's closing comments in this case did not violate constitutional prohibitions. Lockett's own counsel had clearly focused the jury's attention on her silence, first, by outlining her contemplated defense in his opening statement and, second, by stating to the court and jury near the close of the case, that Lockett would be the "next witness." When viewed against this background, it seems clear that the prosecutor's closing remarks added nothing to the impression that had already been created by Lockett's refusal to testify after the jury had been promised a defense by her lawyer and told that Lockett would take the stand. B 37 Lockett also contends that four prospective jurors were excluded from the venire in violation of her Sixth and Fourteenth Amendment rights under the principles established in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 696, 42 L.Ed.2d 690 (1975). We do not agree. 38 On voir dire, the prosecutor told the venire that there was a possibility that the death penalty might be imposed, but that the judge would make the final decision as to punishment. He then asked whether any of the prospective jurors were so opposed to capital punishment that "they could not sit, listen to the evidence, listen to the law, [and] make their determination solely upon the evidence and the law without considering the fact that capital punishment" might be imposed. Four of the venire responded affirmatively. The trial judge then addressed the following question to those four veniremen: 39 "[D]o you feel that you could take an oath to well and truely [sic ] try this case . . . and follow the law, or is your conviction so strong that you cannot take an oath, knowing that a possibility exists in regard to capital punishment?" 40 Each of the four specifically stated twice that he or she would not "take the oath." They were excused. 41 In Witherspoon, persons generally opposed to capital punishment had been excluded for cause from the jury that convicted and sentenced the petitioner to death. We did not disturb the conviction but we held that "a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." 391 U.S., at 522, 88 S.Ct., at 1777. We specifically noted, however, that nothing in our opinion prevented the execution of a death sentence when the veniremen excluded for cause make it "unmistakably clear . . . that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." Id., at 522-523, n. 21, 88 S.Ct., at 1777. 42 Each of the excluded veniremen in this case made it "unmistakably clear" that they could not be trusted to "abide by existing law" and "to follow conscientiously the instructions" of the trial judge. Boulden v. Holman, 394 U.S. 478, 484, 89 S.Ct. 1138, 1142, 22 L.Ed.2d 433 (1969). They were thus properly excluded under Witherspoon, even assuming, arguendo, that Witherspoon provides a basis for attacking the conviction as well as the sentence in a capital case. 43 Nor was there any violation of the principles of Taylor v. Louisiana, supra. In Taylor, the Court invalidated a jury selection system that operated to exclude a "grossly disproportionate," 419 U.S., at 525, 95 S.Ct., at 695, number of women from jury service ther by depriving the petitioner of a jury chosen from a "fair cross-section" of the community, id., at 530, 95 S.Ct., at 697. Nothing in Taylor, however, suggests that the right to a representative jury includes the right to be tried by jurors who have explicitly indicated an inability to follow the law and instructions of the trial judge. C 44 Lockett's final attack on her conviction, as distinguished from her sentence, merits only brief attention. Specifically she contends that the Ohio Supreme Court's interpretation of the complicity provision of the statute under which she was convicted, Ohio Rev.Code Ann. § 2923.03(A) (1975), was so unexpected that it deprived her of fair warning of the crime with which she was charged. The opinion of the Ohio Supreme Court belies this claim. It shows clearly that the construction given the statute by the Ohio court was consistent with both prior Ohio law and with the legislative history of the statute.3 In such circumstances, any claim of inadequate notice under the Due Process Clause of the Fourteenth Amendment must be rejected. III 45 Lockett challenges the constitutionality of Ohio's death penalty statute on a number of grounds. We find it necessary to consider only her contention that her death sentence is invalid because the statute under which it was imposed did not permit the sentencing judge to consider, as mitigating factors, her character, prior record, age, lack of specific intent to cause death, and her relatively minor part in the crime. To address her contention from the proper perspective, it is helpful to review the developments in our recent cases where we have applied the Eighth and Fourteenth Amendments to death penalty statutes. We do not write on a "clean slate." A. 46 Prior to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), every State that authorized capital punishment had abandoned mandatory death penalties,4 and instead permitted the jury unguided and unrestrained discretion regarding the imposition of the death penalty in a particular capital case.5 Mandatory death penalties had proved unsatisfactory, as the plurality noted in Woodson v. North Carolina, 428 U.S. 280, 293, 96 S.Ct. 2978, 2986, 49 L.Ed.2d 944 (1976), in part because juries, "with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict." 47 This Court had never intimated prior to Furman that discretion in sentencing offended the Constitution. See Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 60, 82 L.Ed. 43 (1937); Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949); Williams v. Oklahoma, 358 U.S. 576, 585, 79 S.Ct. 421, 426, 3 L.Ed.2d 516 (1959). As recently as McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), the Court had specifically rejected the contention that discretion in imposing the death penalty violated the fundamental standards of fairness embodied in Fourteenth Amendment due process, id., at 207-208, 91 S.Ct., at 1467, and had asserted that States were entitled to assume that "jurors confronted with the truly awesome responsibility of decreeing death for a fellow human [would] act with due regard for the consequences of their decision." Id., at 208, 91 S.Ct., at 1467. 48 The constitutional status of discretionary sentencing in capital cases changed abruptly, however, as a result of the separate opinions sup orting the judgment in Furman. The question in Furman was whether "the imposition and carrying out of the death penalty [in the cases before the Court] constitute[d] cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." 408 U.S., at 239, 92 S.Ct., at 2727. Two Justices concluded that the Eighth Amendment prohibited the death penalty altogether and on that ground voted to reverse the judgments sustaining the death penalties. Id., at 305-306, 92 S.Ct., at 2760 (BRENNAN, J., concurring); id., at 370-371, 92 S.Ct., at 2793 (MARSHALL, J., concurring). Three Justices were unwilling to hold the death penalty per se unconstitutional under the Eighth and Fourteenth Amendments, but voted to reverse the judgments on other grounds. In separate opinions, the three concluded that discretionary sentencing, unguided by legislatively defined standards, violated the Eighth Amendment because it was "pregnant with discrimination," id., at 257, 92 S.Ct., at 2735 (Douglas, J., concurring), because it permitted the death penalty to be "wantonly" and "freakishly" imposed, id., at 310, 92 S.Ct., at 2762 (STEWART, J., concurring), and because it imposed the death penalty with "great infrequency" and afforded "no meaningful basis for distinguishing the few cases in which it [was] imposed from the many cases in which it [was] not," id., at 313, 92 S.Ct., at 2764 (WHITE, J., concurring). Thus, what had been approved under the Due Process Clause of the Fourteenth Amendment in McGautha became impermissible under the Eighth and Fourteenth Amendments by virtue of the judgment in Furman. See,Gregg v. Georgia, 428 U.S. 153, 195-196, n. 47, 96 S.Ct. 2909, 2936, 49 L.Ed.2d 859 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.). 49 Predictably,6 the variety of opinions supporting the judgment in Furman engendered confusion as to what was required in order to impose the death penalty in accord with the Eighth Amendment.7 Some States responded to what was thought to be the command of Furman by adopting mandatory death penalties for a limited category of specific crimes thus eliminating all discretion from the sentencing process in capital cases.8 Other States attempted to continue the practice of individually assessing the culpability of each individual defendant convicted of a capital offense and, at the same time, to comply with Furman, by providing standards to guide the sentencing decision.9 50 Four years after Furman, we considered Eighth Amendment issues posed by five of the post-Furman death penalty statutes.10 Four Justices took the position that all five statutes complied with the Constitution; two Justices took the position that none of them complied. Hence, the disposition of each case varied according to the votes of three Justices who delivered a joint opinion in each of the five cases upholding the constitutionality of the statutes of Georgia, Florida, and Texas, and holding those of North Carolina and Louisiana unconstitutional. 51 The joint opinion reasoned that, to comply with Furman, sentencing procedures should not create "a substantial risk that the [death penalty will] be inflicted in an arbitrary and capricious manner." Gregg v. Georgia, supra, 428 U.S., at 188, 96 S.Ct., at 2932. In the view of the three Justices, however, Furman did not require that all sentencing discretion be eliminated, but only that it be "directed and limited," 428 U.S., at 189, 96 S.Ct., at 2932, so that the death penalty would be imposed in a more consistent and rational manner and so that there would be a "meaningful basis for distinguishing the . . . cases IN WHICH IT IS IMPOSED FROM . . . THE MANY CASES IN WHICH IT IS NOT." id., at 188, 96 S.Ct., at 2932. The plurality concluded, in the course of invalidating North Carolina's mandatory death penalty statute, that the sentencing process must permit consideration of the "character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death," Woodson v. North Carolina, 428 U.S., at 304, 96 S.Ct., at 2991, in order to ensure the reliability, under Eighth Amendment standards, of the determination that "death is the appropriate punishment in a specific case." Id., at 305, 96 S.Ct., at 2991; see Roberts (Harry) v. Louisiana, 431 U.S. 633, 637, 97 S.Ct. 1993, 1996, 52 L.Ed.2d 637 (1977); Jurek v. Texas, 428 U.S. 262, 271-272, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929 (1976). 52 In the last decade, many of the States have been obliged to revise their death penalty statutes in response to the various opinions supporting the judgments in Furman and Gregg and its companion cases. The signals from t is Court have not, however, always been easy to decipher. The States now deserve the clearest guidance that the Court can provide; we have an obligation to reconcile previously differing views in order to provide that guidance. B 53 With that obligation in mind we turn to Lockett's attack on the Ohio statute. Essentially she contends that the Eighth and Fourteenth Amendments require that the sentencer be given a full opportunity to consider mitigating circumstances in capital cases and that the Ohio statute does not comply with that requirement. She relies, in large part, on the plurality opinions in Woodson, supra, 428 U.S., at 303-305, 96 S.Ct., at 2990-2991, and Roberts (Stanislaus) v. Louisiana, 428 U.S. 325, 333-334, 96 S.Ct. 3001, 3006, 49 L.Ed.2d 974 (1976), and the joint opinion in Jurek, supra, 428 U.S., at 271-272, 96 S.Ct., at 2956, but she goes beyond them. 54 We begin by recognizing that the concept of individualized sentencing in criminal cases generally, although not constitutionally required, has long been accepted in this country. See Williams v. New York, 337 U.S., at 247-248, 69 S.Ct., at 1083; Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S., at 55, 58 S.Ct., at 60. Consistent with that concept, sentencing judges traditionally have taken a wide range of factors into account. That States have authority to make aiders and abettors equally responsible, as a matter of law, with principals, or to enact felony-murder statutes is beyond constitutional challenge. But the definition of crimes generally has not been thought automatically to dictate what should be the proper penalty. See ibid.; Williams v. New York, supra, at 247-248, 69 S.Ct., at 1083; Williams v. Oklahoma, 358 U.S., at 585, 79 S.Ct., at 426. And where sentencing discretion is granted, it generally has been agreed that the sentencing judge's "possession of the fullest information possible concerning the defendant's life and characteristics" is "[h]ighly relevant—if not essential —[to the] selection of an appropriate sentence . . .." Williams v. New York, supra, 337 U.S., at 247, 69 S.Ct., at 1083 (emphasis added). 55 The opinions of this Court going back many years in dealing with sentencing in capital cases have noted the strength of the basis for individualized sentencing. For example, Mr. Justice Black, writing for the Court in Williams v. New York, supra, at 247-248, 69 S.Ct., at 1083—a capital case—observed that the 56 "whole country has traveled far from the period in which the death sentence was an automatic and commonplace result of convictions—even for offenses today deemed trivial." 57 Ten years later, in Williams v. Oklahoma, supra, 358 U.S., at 585, 79 S.Ct., at 426, another capital case, the Court echoed Mr. Justice Black, stating that 58 "[i]n discharging his duty of imposing a proper sentence, the sentencing judge is authorized, if not required, to consider all of the mitigating and aggravating circumstances involved in the crime." (Emphasis added.) 59 See also Furman v. Georgia, 408 U.S., at 245-246, 92 S.Ct., at 2729-2730 (Douglas, J., concurring); id., at 297-298, 92 S.Ct., at 2756 (BRENNAN, J., concurring); id., at 339, 92 S.Ct., at 2777 (MARSHALL, J., concurring); id., at 402-403, 92 S.Ct., at 2810 (BURGER, C. J., dissenting); id., at 413, 92 S.Ct., at 2815 (BLACKMUN, J., dissenting); McGautha v. California, 402 U.S., at 197-203, 91 S.Ct., at 1462-1465. Most would agree that "the 19th century movement away from mandatory death sentences marked an enlightened introduction of flexibility into the sentencing process." Furman v. Georgia, supra, 408 U.S., at 402, 92 S.Ct., at 2810 (BURGER, C. J., dissenting). 60 Although legislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases, the plurality opinion in Woodson, after reviewing the historical repudiation of mandator sentencing in capital cases, 428 U.S., at 289-298, 96 S.Ct., at 2984-2988, concluded that 61 "in capital cases the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Id., at 304, 96 S.Ct., at 2991. 62 That declaration rested "on the predicate that the penalty of death is qualitatively different" from any other sentence. Id., at 305, 96 S.Ct., at 2991. We are satisfied that this qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed. The mandatory death penalty statute in Woodson was held invalid because it permitted no consideration of "relevant facets of the character and record of the individual offender or the circumstances of the particular offense." Id., at 304, 96 S.Ct., at 2991. The plurality did not attempt to indicate, however, which facets of an offender or his offense it deemed "relevant" in capital sentencing or what degree of consideration of "relevant facets" it would require. 63 We are now faced with those questions and we conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case,11 not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.12 We recognize that, in noncapital cases, the established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes. The considerations that account for the wide acceptance of individualization of sentences in noncapital cases surely cannot be thought less important in capital cases. Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases. A variety of flexible techniques probation, parole, work furloughs, to name a few—and various postconviction remedies may be available to modify an initial sentence of confinement in noncapital cases. The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence.13 64 There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of fac ors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments. C 65 The Ohio death penalty statute does not permit the type of individualized consideration of mitigating factors we now hold to be required by the Eighth and Fourteenth Amendments in capital cases. Its constitutional infirmities can best be understood by comparing it with the statutes upheld in Gregg, Proffitt, and Jurek. 66 In upholding the Georgia statute in Gregg, Justices STEWART, POWELL, and STEVENS noted that the statute permitted the jury "to consider any aggravating or mitigating circumstances," see Gregg, 428 U.S., at 206, 96 S.Ct., at 2941, and that the Georgia Supreme Court had approved "open and far-ranging argument" in presentence hearings, id., at 203, 96 S.Ct., at 2939.14 Although the Florida statute approved in Proffitt contained a list of mitigating factors, six Members of this Court assumed, in approving the statute, that the range of mitigating factors listed in the statute was not exclusive.15 Jurek involved a Texas statute which made no explicit reference to mitigating factors. 428 U.S., at 272, 96 S.Ct., at 2956. Rather, the jury was required to answer three questions in the sentencing process, the second of which was "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." Tex.Code Crim.Proc., Art. 37.071(b) (Supp.1975-1976); see 428 U.S., at 269, 96 S.Ct., at 2955. The statute survived the petitioner's Eighth and Fourteenth Amendment attack because three Justices concluded that the Texas Court of Criminal Appeals had broadly interpreted the second question despite its facial narrowness—so as to permit the sentencer to consider "whatever mitigating circumstances" the defendant might be able to show. Id., at 272-273, 96 S.Ct., at 2955 (opinion of STEWART, POWELL, and STEVENS, JJ.), citing and quoting, Jurek v. State, 522 S.W.2d 934, 939-940 (Tex.Crim.App.1975). None of the statutes we sustained in Gregg and the companion cases clearly operated at that time to prevent the sentencer from considering any aspect of the defendant's character and record or any circumstances of his offense as an independently mitigating factor. 67 In this regard the statute now before us is significantly different. Once a defendant is found guilty of aggravated murder with at least one of seven specified aggravating circumstances, the death penalty must be imposed unless, considering "the nature and circumstances of the offense and the history, character, and condition of the offender," the sentencing judge determines that at least one of the following miti ating circumstances is established by a preponderance of the evidence: 68 "(1) The victim of the offense induced or facilitated it. 69 "(2) It is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation. 70 "(3) The offense was primarily the product of the offender's psychosis or mental deficiency, though such condition is insufficient to establish the defense of insanity." Ohio Rev.Code Ann. § 2929.04(B) (1975). 71 The Ohio Supreme Court has concluded that there is no constitutional distinction between the statute approved in Proffitt, and Ohio's statute, see State v. Bayless, 48 Ohio St.2d 73, 86-87, 357 N.E.2d 1035, 1045-1046 (1976), because the mitigating circumstances in Ohio's statute are "liberally construed in favor of the accused." State v. Bell, 48 Ohio St.2d 270, 281, 358 N.E.2d 556, 563 (1976); see State v. Bayless, supra, 48 Ohio St.2d, at 86, 357 N.E.2d, at 1046, and because the sentencing judge or judges may consider factors such as the age and criminal record of the defendant in determining whether any of the mitigating circumstances is established, State v. Bell, supra, 48 Ohio St.2d, at 281, 358 N.E.2d, at 564. But even under the Ohio court's construction of the statute, only the three factors specified in the statute can be considered in mitigation of the defendant's sentence. See, 48 Ohio St.2d, at 281-282, 358 N.E.2d, at 564-565; State v. Bayless, supra, 48 Ohio St.2d, at 87 n. 2, 357 N.E.2d, at 1046 n. 2. We see, therefore, that once it is determined that the victim did not induce or facilitate the offense, that the defendant did not act under duress or coercion, and that the offense was not primarily the product of the defendant's mental deficiency, the Ohio statute mandates the sentence of death. The absence of direct proof that the defendant intended to cause the death of the victim is relevant for mitigating purposes only if it is determined that it sheds some light on one of the three statutory mitigating factors. Similarly, consideration of a defendant's comparatively minor role in the offense, or age, would generally not be permitted, as such, to affect the sentencing decision. 72 The limited range of mitigating circumstances which may be considered by the sentencer under the Ohio statute is incompatible with the Eighth and Fourteenth Amendments. To meet constitutional requirements, a death penalty statute must not preclude consideration of relevant mitigating factors. 73 Accordingly, the judgment under review is reversed to the extent that it sustains the imposition of the death penalty, and the case is remanded for further proceedings.16 74 So ordered. 75 Mr. Justice BRENNAN took no part in the consideration or decision of this case. APPENDIX TO OPINION OF THE COURT 76 The pertinent provisions of the Ohio death penalty statute, Ohio Rev.Code Ann. (1975), are as follows: 77 § 2929.03 Imposing sentence for a capital offense. 78 (A) If the indictment or count in the indictment charging aggravated murder contains no specification of an aggravating circumstance listed in divisio (A) of section 2929.04 of the Revised Code, then, following a verdict of guilty of the charge, the trial court shall impose sentence of life imprisonment on the offender. 79 (B) If the indictment or count in the indictment charging aggravated murder contains one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, the verdict shall separately state whether the accused is found guilty or not guilty of the principal charge and, if guilty of the principal charge, whether the offender is guilty or not guilty of each specification. The jury shall be instructed on its duties in this regard, which shall include an instruction that a specification must be proved beyond a reasonable doubt in order to support a guilty verdict on such specification, but such instruction shall not mention the penalty which may be the consequence of a guilty or not guilty verdict on any charge or specification. 80 (C) If the indictment or count in the indictment charging aggravated murder contains one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, then following a verdict of guilty of the charge but not guilty of each of the specifications, the trial court shall impose sentence of life imprisonment on the offender. If the indictment contains one or more specifications listed in division (A) of such section, then, following a verdict of guilty of both the charge and one or more of the specifications, the penalty to be imposed on the offender shall be determined: 81 (1) By the panel of three judges which tried the offender upon his waiver of the right to trial by jury; 82 (2) By the trial judge, if the offender was tried by jury. 83 (D) When death may be imposed as a penalty for aggravated murder, the court shall require a pre-sentence investigation and a psychiatric examination to be made, and reports submitted to the court, pursuant to section 2947.06 of the Revised Code. Copies of the reports shall be furnished to the prosecutor and to the offender or his counsel. The court shall hear testimony and other evidence, the statement, if any, of the offender, and the arguments, if any, of counsel for the defense and prosecution, relevant to the penalty which should be imposed on the offender. If the offender chooses to make a statement, he is subject to cross-examination only if he consents to make such statement under oath or affirmation. 84 (E) Upon consideration of the reports, testimony, other evidence, statement of the offender, and arguments of counsel submitted to the court pursuant to division (D) of this section, if the court finds, or if the panel of three judges unanimously finds that none of the mitigating circumstances listed in division (B) of section 2929.04 of the Revised Code is established by a preponderance of the evidence, it shall impose sentence of death on the offender. Otherwise, it shall impose sentence of life imprisonment on the offender. 85 § 2929.04 Criteria for imposing death or imprisonment for a capital offense. 86 (A) Imposition of the death penalty for aggravated murder is precluded, unless one or more of the following is specified in the indictment or count in the indictment pursuant to section 2941.14 of the Revised Code, and is proved beyond a reasonable doubt: 87 (1) The offense was the assassination of the president of the United States or person in line of succession to the presidency, or of the governor or lieutenant governor of this state, or of the president-elect or vice president-elect of the United States, or of the governor-elect or lieutenant governor-elect of this state, or of a candidate for any of the foregoing offices. For purposes of this division, a person is a candidate if he has been nominated for election according to law, or if he has filed a petition or petitions according to law to have his name placed on the ballot in a primary or general election, or if he campaigns as a write-in candidate in a primary o general election. 88 (2) The offense was committed for hire. 89 (3) The offense was committed for the purpose of escaping detection, apprehension, trial, or punishment for another offense committed by the offender. 90 (4) The offense was committed while the offender was § a prisoner in a detention facility as defined in section 2921.01 of the Revised Code. 91 (5) The offender has previously been convicted of an offense of which the gist was the purposeful killing of or attempt to kill another, committed prior to the offense at bar, or the offense at bar was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender. 92 (6) The victim of the offense was a law enforcement officer whom the offender knew to be such, and either the victim was engaged in his duties at the time of the offense, or it was the offender's specific purpose to kill a law enforcement officer. 93 (7) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary. 94 (B) Regardless of whether one or more of the aggravating circumstances listed in division (A) of this section is specified in the indictment and proved beyond a reasonable doubt, the death penalty for aggravated murder is precluded when, considering the nature and circumstances of the offense and the history, character, and condition of the offender, one or more of the following is established by a prepondence [preponderance] of the evidence: 95 (1) The victim of the offense induced or facilitated it. 96 (2) It is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation. 97 (3) The offense was primarily the product of the offender's psychosis or mental deficiency, though such condition is insufficient to establish the defense of insanity. 98 Mr. Justice BLACKMUN, concurring in part and concurring in the judgment. 99 I join the Court's judgment, but only Parts I and II of its opinion. I, too, would reverse the judgment of the Supreme Court of Ohio insofar as it upheld the imposition of the death penalty on petitioner Sandra Lockett, but I would do so for a reason more limited than that which the plurality espouses, and for an additional reason not relied upon by the plurality. 100 * The first reason is that, in my view, the Ohio judgment in this case improperly provided the death sentence for a defendant who only aided and abetted a murder, without permitting any consideration by the sentencing authority of the extent of her involvement, or the degree of her mens rea, in the commission of the homicide. The Ohio capital penalty statute, together with that State's aiding-and-abetting statute, and its statutory definition of "purposefulness" as including reckless endangerment, allows for a particularly harsh application of the death penalty to any defendant who has aided or abetted the commission of an armed robbery in the course of which a person is killed, even though accidentally.1 It might be that to inflict the death penalty in some such situations would skirt the limits of the Eighth Amendment proscription, incorporated in the Fourteenth Amendment, against gross disproportionality, but I doubt that the Court, in regard to murder, could easily define a convincing bright-line rule such as was used in regard to rape, Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 282 (1977), to make workable a disproportionality approach.2 101 The more manageable alternative, in my view, is to follow a proceduralist tack, and require, as Ohio does not, in the case of a nontriggerman such as Lockett, that the sentencing authority have discretion to consider the degree of the defendant's participation in the acts leading to the homicide and the character of the defendant's mens rea. That approach does not interfere with the States' individual statutory categories for assessing legal guilt, but merely requires that the sentencing authority be permitted to weigh any available evidence, adduced at trial or at the sentencing hearing, concerning the defendant's degree of participation in the homicide and the nature of his mens rea in regard to the commission of the homicidal act. A defendant would be permitted to adduce evidence, if any be available, that he had little or no reason to anticipate that a gun would be fired, or that he played only a minor part in the course of events leading to the use of fatal force. Though heretofore I have been unwilling to interfere with the legislative judgment of the States in regard to capital-sentencing procedures, see Furman v. Georgia, 408 U.S. 238, 405, 92 S.Ct. 2726, 2811, 33 L.Ed.2d 346 (1972) (dissenting opinion), adhered to in the 1976 cases, see my opinion in Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2971, 49 L.Ed.2d 859, 904; Proffitt v. Florida, 428 U.S. 242, 261, 96 S.Ct. 2960, 2970, 49 L.Ed.2d 913; Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 2960, 49 L.Ed.2d 929; Woodson v. North Carolina, 428 U.S. 280, 307, 96 S.Ct. 2978, 2993, 49 L.Ed.2d 944; Roberts v. Louisiana, 428 U.S. 325, 363, 96 S.Ct. 3001, 3020, 49 L.Ed.2d 974, this Court's judgment as to disproportionality in Coker, supra, in which I joined, and the unusual degree to which Ohio requires capital punishment of a mere aider and abettor in an armed felony resulting in a fatality even where no participant specifically intended the fatal use of a weapon, see n. 1, supra, provides a significant occasion for setting some limit to the method by which the States assess punishment for actions less immediately connected to the deliberate taking of human life. 102 This approach is not too far off the mark already used by many States in assessing the death penalty. Of 34 States that now have capital statutes, 18 specify that a minor degree of participation in a homicide may be considered by the sentencing authority, and, of the remaining 16 States, 9 allow consideration of any mitigating factor.3 II 103 The second ground on which reversal is required, in my view, is a Jackson issue. Although the plurality does not reach this issue, it is raised by petitioner, and I mention it against the possibility that any further revision of the Ohio death penalty statutes, prompted by the Court's decision today, contemplate as well, and cure, the Jackson deficiency. 104 In United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), the Court held that the capital-sentencing provision of the Federal Kidnaping Act was unconstitutional in that it needlessly burdened the defendant's exercise of the Sixth Amendment right to trial by jury and the Fifth Amendment right to plead not guilty. The Act, 18 U.S.C. § 1201(a) (1964 ed.), had provided that the death penalty could be imposed only "if the verdict of the jury shall so recommend," thus peculiarly insuring that any defendant who pleaded guilty, or who waived a jury trial in favor of a bench trial, could not be sentenced to death, and imposing the risk of death only on those who insisted on trial by jury. 105 The holding of Jackson, prohibiting imposition of the death penalty on a defendant who insists upon a jury trial, was thereafter limited to an extent by Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), where the Court held that a pre-Jackson defendant who had pleaded guilty rather than go to trial was not entitled to withdraw his plea on grounds of involuntariness or coercion even if the plea had been encouraged by fear of the death penalty in a jury trial. Here, of course, petitioner insisted on her right to a jury trial, and thus falls on the Jackson side of any Jackson-Brady dichotomy. 106 Under Ohio Rule Crim.Proc. 11(C)(3), the sentencing court has full discretion to prevent imposition of a capital sentence "in the interests of justice" if a defendant pleads guilty or no contest, but wholly lacks such discretion if the defendant goes to trial. The Rule states that if "the indictment contains one or more specifications [of aggravating circumstances], and a plea of guilty or no contest to the charge [of aggravated murder with specifications] is accepted, the court may dismiss the specifications and impose sentence [of life imprisonment] accordingly, in the interests of justice." Such a dismissal of aggravating specifications absolutely precludes imposition of the death penalty. There is no provision similar to Rule 11(C)(4) permitting the trial court to dismiss aggravating specifications "in the interests of justice" where the defendant insists on his right to trial. Instead, as the Ohio Supreme Court noted in State v. Weind, 50 Ohio St.2d 224, 227, 364 N.E.2d 224, 228 (1977), vacated in part and remanded, 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1156 (1978), a defendant who pleads not guilty "must rely on the court finding the presence of one of the [statutory] mitigating circumstances . . . to avoid the death sentence." 107 While it is true, as the Ohio Court noted in Weind, 50 Ohio St.2d, at 229, 364 N.E.2d, at 229, that there is always a possibility of a death sentence whether or not one pleads guilty, this does not change the fact that a defendant can plead not guilty only by enduring a semimandatory, rather than a purely discretionary, capital-sentencing provision. This disparity between a defendant's prospects under the two sentencing alternatives is, in my view, too great to survive under Jackson, and petitioner's death sentence thus should be vacated on that ground as well. 108 Mr. Justice MARSHALL, concurring in the judgment. 109 I continue to adhere to my view that the death penalty is, under all circumstances, a cruel and unusual punishment prohibited by the Eighth Amendment. See Furman v. Georgia, 408 U.S. 238, 314-374, 92 S.Ct. 2726, 2764-2796, 33 L.Ed.2d 346 (1972) (MARSHALL, J., concurring); Gregg v. Georgia, 428 U.S. 153, 231-241, 96 S.Ct. 2909, 2973-2977, 49 L.Ed.2d 859 (1976) (MARSHALL, J., dissenting). The cases that have come to this Court since its 1976 decisions permitting imposition of the death penalty have only persuaded me further of that conclusion. See, e. g., Gardner v. Florida, 430 U.S. 349, 365, 97 S.Ct. 1197, 1208, 51 L.Ed.2d 393 (1977) (MARSHALL, J., dissenting); Coker v. Georgia, 433 U.S. 584, 600-601, 97 S.Ct. 2861, 2869-2870, 53 L.Ed.2d 282 (1977) (MARSHALL, J., concurring in judgment); Alford v. Florida, 436 U.S. 935, 98 S.Ct. 2835, 56 L.Ed.2d 778 (1978) (MARSHALL, J., dissenting from denial of certiorari). This case, as well, serves to reinforce my view. 110 When a death sentence is imposed under the circumstances presented here, I fail to understand how any of my Brethren—even those who believe that the death penalty is not wholly inconsistent with the Constitution—can disagree that it must be vacated. Under the Ohio death penalty statute, this 21-year-old Negro woman was sentenced to death for a killing that she did not actually commit or intend to commit. She was convicted under a theory of vicarious liability. The imposition of the death penalty for this crime totally violates the principle of proportionality embodied in the Eighth Amendment's prohibition. Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910); it makes no distinction between a willful and malicious murderer and an accomplice to an armed robbery in which a killing unintentionally occurs. See 49 Ohio St.2d 48, 67, 358 N.E.2d 1062, 1075 (1976) (dissenting opinion). 111 Permitting imposition of the death penalty solely on proof of felony murder, moreover, necessarily leads to the kind of "lightning bolt," "freakish," and "wanton" executions that persuaded other Members of the Court to join Mr. Justice BRENNAN and myself in Furman v. Georgia, supra, in holding Georgia's death penalty statute unconstitutional. Whether a death results in the course of a felony (thus giving rise to felony-murder liability) turns on fortuitous events that do not distinguish the intention or moral culpability of the defendants. That the State of Ohio chose to permit imposition of the death penalty under a purely vicarious theory of liability seems to belie the notion that the Court can discern the "evolving standards of decency," Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion), embodied in the Eighth Amendment, by reference to state "legislative judgment," see Gregg v. Georgia, supra, 428 U.S., at 175, 96 S.Ct., at 2926 (opinion of STEWART, POWELL, and STEVENS, JJ.). 112 As the plurality points out, petitioner was sentenced to death under a statutory scheme that precluded any effective consideration of her degree of involvement in the crime, her age, or her prospects for rehabilitation. Achieving the proper balance between clear guidelines that assure relative equality of treatment, and discretion to consider individual factors whose weight cannot always be preassigned, is no easy task in any sentencing system. Where life itself is what hangs in the balance, a fine precision in the process must be insisted upon. The Ohio statute, with its blunderbuss, virtually mandatory approach to imposition of the death penalty for certain crimes, wholly fails to recognize the unique individuality of every criminal defendant who comes before its courts. See Roberts (Harry) v. Louisiana, 431 U.S. 633, 637, 97 S.Ct. 1993, 1996, 52 L.Ed.2d 637 (1977) (per curiam ); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). 113 The opinions announcing the judgment of the Court in Gregg v. Georgia, 428 U.S., at 188-198, 96 S.Ct., at 2932-2936 (opinion of STEWART, POWELL, and STEVENS, JJ.), Jurek v. Texas, 428 U.S. 262, 271-276, 96 S.Ct. 2950, 2956-2958, 49 L.Ed.2d 929 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.), and Proffitt v. Florida, 428 U.S. 242, 259-260, 96 S.Ct. 2960, 2969-2970, 49 L.Ed.2d 913 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.), upheld the constitutionality of the death penalty, in the belief that a system providing sufficient guidance for the sentencing decisionmaker and adequate appellate review would assure "rationality," "consistency," and "proportionality" in the imposition of the death sentence. Gregg v. Georgia, supra, at 203, 96 S.Ct., at 2939; Proffitt v. Florida, supra, at 259, 96 S.Ct., at 2969; Jurek v. Texas, supra, at 276, 96 S.Ct., at 2958. That an Ohio trial court could impose the death penalty on petitioner under these facts, and that the Ohio Supreme Court on review could sustain it, cast strong doubt on the plurality's premise that appellate review in state systems is sufficient to avoid the wrongful and unfair imposition of this irrevocable penalty. 114 Accordingly, I join in the Court's judgment insofar as it affirms petitioner's conviction and vacates her death sentence. I do not, however, join in the Court's assumption that the death penalty may ever be imposed without violating the command of the Eighth Amendment that no "cruel and unusual punishments" be imposed. 115 Mr. Justice WHITE, concurring in part, dissenting in part, and concurring in the judgments of the Court. 116 I concur in Parts I and II of the Court's opinion in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, and Part I of the Court's opinion in Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 and in the judgments. I cannot, however, agree with Part III of the Court's opinion in Lockett and Part II of the Court's opinion in Bell and to that extent respectfully dissent. 117 * The Court has now completed its about-face since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Furman held that as a result of permitting the sentencer to exercise unfettered discretion to impose or not to impose the death penalty for murder, the penalty was then being imposed discriminatorily,1 wantonly and freakishly,2 and so infrequently3 that any given death sentence was cruel and unusual. The Court began its retreat in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), and Roberts (Stanislaus) v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 1974 (1976), where a plurality held that statutes which imposed mandatory death sentences even for first-degree murders were constitutionally invalid because the Eighth Amendment required that consideration be given by the sentencer to aspects of character of the individual offender and the circumstances of the particular offense in deciding whether to impose the punishment of death.4 Today it is held, again through a plurality, that the sentencer may constitutionally impose the death penalty only as an exercise of his unguided discretion after being presented with all circumstances which the defendant might believe to be conceivably relevant to the appropriateness of the penalty for the individual offender.5 118 With all due respect, I dissent. I continue to be of the view, for the reasons set forth in my dissenting opinion in Roberts, supra, at 337, 96 S.Ct., at 3007, that it does not violate the Eighth Amendment for a State to impose the death penalty on a mandatory basis when the defendant has been found guilty beyond a reasonable doubt of committing a deliberate, unjustified killing. Moreover, I greatly fear that the effect of the Court's decision today will be to compel constitutionally a restoration of the state of affairs at the time Furman was decided, where the death penalty is imposed so erratically and the threat of execution is so attenuated for even the most atrocious murders that "its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes." Furman v. Georgia, supra, 408 U.S., at 312, 92 S.Ct., at 2764 (WHITE, J., concurring). By requiring as a matter of constitutional law that sentencing authorities be permitted to consider and in their discretion to act upon any and all mitigating circumstances, the Court permits them to refuse to impose the death penalty no matter what the circumstances of the crime. This invites a return to the pre-Furman days when the death penalty was generally reserved for those very few for whom society has least consideration. I decline to extend Woodson and Roberts in this respect. 119 It also seems to me that the plurality strains very hard and unsuccessfully to avoid eviscerating the handiwork in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); and surely it calls into question any other death penalty statute that permits only a limited number of mitigating circumstances to be placed before the sentencing authority or to be used in its deliberations. II 120 I nevertheless concur in the judgments of the Court reversing the imposition of the death sentences because I agree with the contention of the petitioners, ignored by the plurality, that it violates the Eighth Amendment to impose the penalty of death without a finding that the defendant possessed a purpose to cause the death of the victim. 121 It is now established that a penalty constitutes cruel and unusual punishment if it is excessive in relation to the crime for which it is imposed. A punishment is disproportionate "if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A punishment might fail the test on either ground." Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2862, 53 L.Ed.2d 982 (1977) (opinion of WHITE, J.). Because it has been extremely rare that the death penalty has been imposed upon those who were not found to have intended the death of the victim, the punishment of death violates both tests under the circumstances present here. 122 According to the factual submissions before this Court, out of 363 reported executions for homicide since 1954 for which facts are available only eight clearly involved individuals who did not personally commit the murder.6 Moreover, at least some of these eight executions involved individuals who in tended to cause the death of the victim.7 Furthermore, the last such execution occurred in 1955. In contrast, there have been 72 executions for rape in the United States since 1954.8 123 I recognize that approximately half of the States have not legislatively foreclosed the possibility of imposing the death penalty upon those who do not intend to cause death. The ultimate judgment of the American people concerning the imposition of the death penalty upon such defendants, however, is revealed not only by the content of statutes and by the imposition of capital sentences but also by the frequency with which society is prepared actually to inflict the punishment of death. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). It is clear from recent history that the infliction of death under circumstances where there is no purpose to take life has been widely rejected as grossly out of proportion to the seriousness of the crime. 124 The value of capital punishment as a deterrent to those lacking a purpose to kill is extremely attenuated. Whatever questions may be raised concerning the efficacy of the death penalty as a deterrent to intentional murders—and that debate rages on—its function in deterring individuals from becoming involved in ventures in which death may unintentionally result is even more doubtful. Moreover, whatever legitimate purposes the imposition of death upon those who do not intend to cause death might serve if inflicted with any regularity is surely dissipated by society's apparent unwillingness to impose it upon other than an occasional and erratic basis. See id., at 310, 92 S.Ct., at 2762 (WHITE, J. concurring). 125 Under those circumstances the conclusion is unavoidable that the infliction of death upon those who had no intent to bring about the death of the victim is not only grossly out of proportion to the severity of the crime but also fails to contribute significantly to acceptable, or indeed any perceptible goals of punishment. 126 This is not to question, of course, that those who engage in serious criminal conduct which poses a substantial risk of violence, as did the present petitioners, deserve serious punishment regardless of whether or not they possess a purpose to take life. And the fact that death results, even unintentionally, from a criminal venture need not and frequently is not regarded by society as irrelevant to the appropriate degree of punishment. But society has made a judgment, which has deep roots in the history of the criminal law, see United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854, distinguishing at least for purpose of the imposition of the death penalty between the culpability of those who acted with and those who acted without a purpose to destroy human life. 127 Both of these petitioners were sentenced to death without a finding at any stage of the proceeding that they intended the death of those who were killed as a result of their criminal conduct. In Lockett v. Ohio, the trial judge instructed the jury as follows: 128 "A person engaged in a common design with others to rob by force and violence an individual or individuals of their property is resumed to acquiesce in whatever may reasonably be necessary to accomplish the object of their enterprise . . . . 129 "If the conspired robbery and the manner of its accomplishment would be reasonably likely to produce death, each plotter is equally guilty with the principal offender as an aider and abettor in the homicide . . . . An intent to kill by an aider and abettor may be found to exist beyond a reasonable doubt under such circumstances." 130 On appeal, the Ohio Supreme Court held that where "it might be reasonably expected by all the participants that the victim's life would be endangered by the manner and means of performing the act conspired . . . participants [are] bound by all the consequences naturally and probably arising from the furtherance of the conspiracy to commit the robbery." 49 Ohio St.2d 48, 62, 358 N.E.2d 1062, 1072 (1976). It is thus clear that under Ohio law a defendant may be convicted of aggravated murder with aggravating specifications and sentenced to death without a finding that he intended death to result but only that he engaged in criminal conduct which posed a substantial risk of death to others. Moreover, it appears that nowhere during either the trial or sentencing process was any finding made that Lockett intended that death be inflicted in connection with the robbery. The petitioner in Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010, was tried before a three-judge panel. Again, however, no findings were made either during the trial or sentencing stage of the process that Bell intended the death of the victim which resulted from the criminal conduct in which he was engaged. 131 Of course, the facts of both of these cases might well permit the inference that the petitioners did in fact intend the death of the victims. But there is a vast difference between permitting a factfinder to consider a defendant's willingness to engage in criminal conduct which poses a substantial risk of death in deciding whether to infer that he acted with a purpose to take life, and defining such conduct as an ultimate fact equivalent to possessing a purpose to kill as Ohio has done. See United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854. Indeed, the type of conduct which Ohio would punish by death requires at most the degree of mens rea defined by the ALI Model Penal Code (1962) as recklessness: conduct undertaken with knowledge that death is likely to follow.9 Since I would hold that death may not be inflicted for killings consistent with the Eighth Amendment without a finding that the defendant engaged in conduct with the conscious purpose of producing death, these sentences must be set aside.10 132 Mr. Justice REHNQUIST, concurring in part and dissenting in part. 133 I join Parts I and II of THE CHIEF JUSTICE's opinion for the Court, but am unable to join Part III of his opinion or in the judgment of reversal. 134 * Whether out of a sense of judicial responsibility or a less altruistic sense of futility, there are undoubtedly circumstances which require a Member of this Court "to bow to the authority" of an earlier case despite his "original and continuing belief that the decision was constitutionally wrong." Burns v. Richardson, 384 U.S. 73, 98, 86 S.Ct. 1286, 1300, 16 L.Ed.2d 376 (1966) (Harlan, J., concurring in result). See also Id., at 99, 86 S.Ct., at 1300 (STEWART, J., concurring in judgment). The Court has most assuredly not adopted the dissenting views which I expressed in the previous capital punishment cases, see Woodson v. North Carolina, 428 U.S. 280, 308, 96 S.Ct. 2978, 2993, 49 L.Ed.2d 944 (1976), and Furman v. Georgia, 408 U.S. 238, 465, 92 S.Ct. 2726, 2841, 33 L.Ed.2d 346 (1972). It has just as surely not cloven to a principled doctrine either holding the infliction of the death penalty to be unconstitutional per se or clearly and understandably stating the terms under which the Eighth and Fourteenth Amendments permit the death penalty to be imposed. Instead, as I believe both the opinion of THE CHIEF JUSTICE and the opinion of my Brother WHITE seem to concede, the Court has gone from pillar to post, with the result that the sort of reasonable predictability upon which legislatures, trial courts, and appellate courts must of necessity rely has been all but completely sacrificed. 135 THE CHIEF JUSTICE states: "We do not write on a 'clean slate,' " ante, at 597. But it can scarcely be maintained that today's decision is the logical application of a coherent doctrine first espoused by the opinions leading to the Court's judgment in Furman, and later elaborated in the Woodson series of cases decided two Terms ago. Indeed, it cannot even be responsibly maintained that it is a principled application of the plurality and lead opinions in theWoodson series of cases, without regard to Furman. The opinion strives manfully to appear as a logical exegesis of those opinions, but I believe that it fails in the effort. We are now told, in effect, that in order to impose a death sentence the judge or jury must receive in evidence whatever the defense attorney wishes them to hear. I do not think THE CHIEF JUSTICE's effort to trace this quite novel constitutional principle back to the plurality and lead opinions in the Woodson cases succeeds. 136 As the opinion admits, ante, at 606 n. 14, the statute upheld in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), permitted the sentencing authority to consider only those mitigating circumstances " 'authorized by law.' " Id., at 164, 96 S.Ct., at 2920 (opinion of STEWART, POWELL, and STEVENS, JJ.) (citation omitted). Today's opinion goes on to say: "Although the Florida statute approved in Proffitt [v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976)] contained a list of mitigating factors, six Members of this Court assumed . . . that the range of mitigating factors listed in the statute was not exclusive." Ante, at 606, and n. 15, citing Proffitt, supra, at 250 n. 8, 260, 96 S.Ct., at 2965. The footnote referred to discussed whether the Florida court would uphold a death sentence that rested entirely on nonstatutory aggravating circumstances. The reference to the absence of limiting language with respect to the list of statutory mitigating factors was employed to emphasize the different statutory treatment of aggravating circumstances. Indeed, only one page later the joint opinion stated: "The sentencing authority in Florida, the trial judge, is directed to weigh eight aggravating factors against seven mitigating factors to determine whether the death penalty shall be imposed." 428 U.S., at 251, 96 S.Ct., at 2966. The other Proffitt opinion referred to in today's opinion, the dissenting opinion of Mr. Justice WHITE, id., at 260, 96 S.Ct., at 2970, said of mitigating circumstances: "[A]lthough the statutory aggravating and mitigating circumstances are not susceptible of mechanical application, they are by no means so vague and overbroad as to leave the discretion of the sentencing authority unfettered." 137 The opinion's effort to find support for today's rule in our opinions in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), is equally strained. The lead opinion there read the opinion of the Texas Court of Criminal Appeals to interpret the statute "so as to allow a defendant to bring to the jury's attention whatever mitigating circumstances he may be able to show," id., at 272, 96 S.Ct., at 2956, and went on to quote several specified types of mitigating circumstances which were mentioned in the Texas court's opinion. I think it clear from this context that the term "mitigating circumstances" was not so broad as to encompass any evidence which the defense attorney saw fit to present to a judge or jury. 138 It seems to me indisputably clear from today's opinion that, while we may not be writing on a clean slate, the Court is scarcely faithful to what has been written before. Rather, it makes a third distinct effort to address the same question, an effort which derives little support from any of the various opinions in Furman or from the prevailing opinions in the Woodson cases. As a practical matter, I doubt that today's opinion will make a great deal of difference in the manner in which trials in capital cases are conducted, since I would suspect that it has been the practice of most trial judges to permit a defendant to offer virtually any sort of evidence in his own defense as he wished. But as my Brother WHITE points out in his dissent, the theme of today's opinion, far from supporting those views expressed in Furman which did appear to be carried over to the Woodson cases, tends to undercut those views. If a defendant as a matter of constitutional law is to be permitted to offer as evidence in the sentencing hearing any fact, however bizarre, which he wishes, even though the most sympathetically disposed trial judge could conceive of no basis upon which the jury might take it into account in imposing a sentence, the new constitutional doctrine will not eliminate arbitrariness or freakishness in the imposition of sentences, but will codify and institutionalize it. By encouraging defendants in capital cases, and presumably sentencing judges and juries, to take into consideration anything under the sun as a "mitigating circumstance," it will not guide sentencing discretion but will totally unleash it. It thus appears that the evil described by the Woodson plurality—that mandatory capital sentencing "papered over the problem of unguided and unchecked jury discretion," 428 U.S., at 302, 96 S.Ct., at 2990—was in truth not the unchecked discretion, but a system which "papered over" its exercise rather than spreading it on the record. 139 I did not, either at the time of the Furman decision or the decision in the Woodson cases, agree with the views expressed in Furman which I thought the lead opinions in the Woodson cases sought to carry over into those opinions. I do, however, agree with the statements as to institutional responsibility contained in the separate opinions in Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966), and I trust that I am not insensitive to THE CHIEF JUSTICE's expressed concern in his opinion that "[t]he States now deserve the clearest guidance that the Court can provide" on capital punishment. Ante, at 602. Given the posture of my colleagues in this case, however, there does not seem to me to be any way in which I can assist in the discharge of that obligation. I am frank to say that I am uncertain whether today's opinion represents the seminal case in the exposition by this Court of the Eighth and Fourteenth Amendments as they apply to capital punishment, or whether instead it represents the third false start in this direction within the past six years. 140 A majority of the Court has yet to endorse the course taken by today's plurality in using the Eighth Amendment as a device for importing into the trial of capital cases extremely stringent procedural restraints. The last opinion on that subject to command a majority of this Court was that of Mr. Justice Harlan in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), in which he spoke for the Court in these words: 141 "It may well be, as the American Law Institute and the National Commission on Reform of Federal Criminal Laws have concluded, that bifurcated trials and criteria for jury sentencing discretion are superior means of dealing with capital cases if the death penalty is to be retained at all. But the Federal Constitution, which marks the limits of our authority in these cases, does not guarantee trial procedures that are the best of all worlds, or that accord with the most enlightened ideas of students of the infant science of criminology, or even those that measure up to the individual predilections of members of this Court. See Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). The Constitution requires no more than that trials be fairly conducted and that guaranteed rights of defendants be scrupulously respected." Id., at 221, 91 S.Ct., at 1474. 142 I continue o view McGautha as a correct exposition of the limits of our authority to revise state criminal procedures in capital cases under the Eighth and Fourteenth Amendments. Sandra Lockett was fairly tried, and was found guilty of aggravated murder. I do not think Ohio was required to receive any sort of mitigating evidence which an accused or his lawyer wishes to offer, and therefore I disagree with Part III of the plurality's opinion. II 143 Because I reject the primary contentions offered by petitioner, I must also address her other arguments, with which the Court does not wish to deal, in order to conclude that the State may impose the death penalty. Two of petitioner's objections can be dismissed with little comment. First, she complains that the Ohio procedure does not permit jury participation in the sentencing process. As the lead opinion pointed out in Proffitt, 428 U.S., at 252, 96 S.Ct., at 2966, this Court "has never suggested that jury sentencing is constitutionally required." No majority of this Court has ever reached a contrary conclusion, and I would not do so today. Second, she contends that the State should be required to prove the absence of mitigating factors beyond a reasonable doubt. Because I continue to believe that the Constitution is not offended by the State's refusal to consider mitigating factors at all, there can be no infirmity in shifting the burden of persuasion to the defendant when it chooses to consider them. 144 Petitioner also presents two arguments based on United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), in which the Court held that the imposition of the death penalty under the Federal Kidnaping Act, 18 U.S.C. § 1201(a) (1964 ed.), was unconstitutional because it could only be imposed where the defendant exercised his right to trial by jury. First, petitioner attacks the provision of the statute requiring three judges, rather than one, to hear the case when a defendant chooses to be tried by the court rather than the jury. She contends that the three judges are less likely to impose the death penalty than would be the single judge who determines sentence in the case of a jury trial. To that extent, she argues, the exercise of the right to a jury trial is discouraged because of a fear of a higher probability of the imposition of the death penalty. This argument cannot be supported. There is simply no reason to conclude that three judges are less likely than one to impose the death sentence on a convicted murderer. At the same time, it is at least equally plausible that the three judges would be less likely than a jury to convict in the first instance. Thus, at the time when an accused defendant must choose between a trial before the jury and a trial to the court, it simply cannot be said which is more likely to result in the imposition of death. Since both procedures are sufficiently fair to satisfy the Constitution. I see no infirmity in requiring petitioner to choose which she prefers. 145 Second, petitioner complains that the trial court has the authority to dismiss the specifications of aggravating circumstances, thus precluding the imposition of the death penalty, only when a defendant pleads guilty or no contest. She contends that this limitation upon the availability of judicial mercy unfairly penalizes her right to plead not guilty. While Jackson may offer some support for this contention, it certainly does not compel its acceptance. In Jackson, the defendant could have been executed if he exercised his right to a jury trial, but could not have been executed if he waived it. In Ohio, a defendant is subject to possible execution whether or not he pleads guilty. Furthermore, if he chooses to plead guilty, he is not subject to possible acquittal. Under such circumstances, it is difficult to imagine that any defendant will be deterred from exercising his right to go to trial. Indeed, petitioner was not so deterred, and respondent reports that no one in petitioner's county has ever pleaded guilty to capital murder. Brief for Respondent 36. The mere fact that petitioner was required to choose hardly amounts to a constitutional violation. In McGautha, supra, 402 U.S., at 212-213, 91 S.Ct., at 1469-1470, the Court explained an earlier decision, Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), in which it had invalidated a conviction because the defendant had been required to forego his Fifth Amendment privilege against self-incrimination to protect a Fourth Amendment claim. Here petitioner's assertion of her right to go to trial would have deprived her only of a statutory possibility of mercy, not of constitutional dimensions, enjoyed by other defendants in Ohio. Nothing in Jackson suggests that such a choice is forbidden by the Fourteenth Amendment. 146 I finally reject the proposition urged by my Brother WHITE in his separate opinion, which the plurality finds it unnecessary to reach. That claim is that the death penalty, as applied to one who participated in this murder as Lockett did, is "disproportionate" and therefore violative of the Eighth and Fourteenth Amendments. I know of no principle embodied in those Amendments, other than perhaps one's personal notion of what is a fitting punishment for a crime, which would allow this Court to hold the death penalty imposed upon her unconstitutional because under the judge's charge to the jury the latter were not required to find that she intended to cause the death of her victim. As my Brother WHITE concedes, approximately half of the States "have not legislatively foreclosed the possibility of imposing the death penalty upon those who do not intend to cause death." 438 U.S., at 625, 98 S.Ct., at 2983. Centuries of common-law doctrine establishing the felony-murder doctrine, dealing with the relationship between aiders and abettors and principals, would have to be rejected to adopt this view. Just as surely as many thoughtful moralists and penologists would reject the Biblical notion of "an eye for an eye, a tooth for a tooth," as a guide for minimum sentencing, there is nothing in the prohibition against cruel and unusual punishments contained in the Eighth Amendment which sets that injunction as a limitation on the maximum sentence which society may impose. 147 Since all of petitioner's claims appear to me to be without merit, I would affirm the judgment of the Supreme Court of Ohio. 1 The pertinent provisions of the Ohio death penalty statute appear as an appendix to this opinion. 2 The presentence report also contained information about the robbery. It indicated that Dew had told the police that he, Parker, and Lockett's brother had planned the holdup. It also indicated that Parker had told the police that Lockett had not followed his order to keep the car running during the robbery and instead had gone to get something to eat. 3 See 49 Ohio St.2d 48, 58-62, 358 N.E.2d 1062, 1070-1072 (1976); id., at 69-70, 358 N.E.2d, at 1076 (Stern, J., dissenting). 4 See Woodson v. North Carolina, 428 U.S. 280, 291-292, and n. 25, 96 S.Ct. 2978, 2984-2985, 49 L.Ed.2d 944 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.). 5 See id., at 291-292, 92 S.Ct., at 2753; McGautha v. California, 402 U.S. 183, 200 n. 11, 91 S.Ct. 1454, 1463, 28 L.Ed.2d 711 (1971). 6 See Furman v. Georgia, 408 U.S. 238, 403, 92 S.Ct. 2726, 2810, 33 L.Ed.2d 346 (1972) (BURGER, C. J., dissenting). 7 The limits on the consideration of mitigating factors in Ohio's death penalty statute which Lockett now attacks appear to have been a direct response to Furman. Prior to Furman, Ohio had begun to revise its system of capital sentencing. The Ohio House of Representatives had passed a bill abandoning the practice of unbridled sentencing discretion and instructing the sentencer to consider a list of aggravating and mitigating circumstances in determining whether to impose the death penalty. The list of mitigating circumstances permitted consideration of any circumstance "tending to mitigate the offense, though failing to establish a defense." See Sub. House Bill 511, 109th Ohio General Assembly § 2929.03(C)(3), passed by the Ohio House on March 22, 1972; Lehman & Norris, Some Legislative History and Comments on Ohio's New Criminal Code, 23 Cleve.St.L.Rev. 8, 10, 16 (1974). Furman was announced during the Ohio Senate Judiciary Committee's consideration of the Ohio House bill. After Furman, the Committee decided to retain the death penalty but to eliminate much of the sentencing discretion permitted by the House bill. As a result, the Ohio Senate developed the current sentencing procedure which requires the imposition of the death penalty if one of seven specific aggravating circumstances and none of three specific mitigating circumstances is f und to exist. Confronted with what reasonably would have appeared to be the questionable constitutionality of permitting discretionary weighing of mitigating factors after Furman, the sponsors of the Ohio House bill were not in a position to mount a strong opposition to the Senate's amendments, see Lehman & Norris, supra, at 18-22, and the statute under which Lockett was sentenced was enacted. 8 See, e. g., Woodson, supra, 428 U.S., at 300, 96 S.Ct., at 2989 (opinion of STEWART, POWELL, and STEVENS, JJ.); Rockwell v. Superior Court, 18 Cal.3d 420, 446-448, 134 Cal.Rptr. 650, 665-667, 556 P.2d 1101, 1116-1118 (1976) (Clark, J., concurring) (account of how California and other States enacted unconstitutional mandatory death penalties in response to Furman ); State v. Spence, 367 A.2d 983, 985-986 (Del.Supr.1976) (Delaware Legislature and court interpreted Furman as requiring elimination of all sentencing discretion resulting in an unconstitutional statute); Liebman & Shepard, Guiding Capital Sentencing Discretion Beyond the "Boiler Plate": Mental Disorder as a Mitigating Factor, 66 Geo.L.J. 757, 765 n. 43 (1978). 9 See Note, Discretion and the Constitutionality of the New Death Penalty Statutes, 87 Harv.L.Rev. 1690, 1690-1710 (1974). 10 Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Woodson v. North Carolina, supra; and Roberts (Stanislaus) v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). 11 We express no opinion as to whether the need to deter certain kinds of homicide would justify a mandatory death sentence as, for example, when a prisoner—or escapee—under a life sentence is found guilty of murder. See Roberts (Harry) v. Louisiana, 431 U.S. 633, 637 n. 5, 97 S.Ct. 1993, 1996, 52 L.Ed.2d 637 (1977). 12 Nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense. 13 Sentencing in noncapital cases presents no comparable problems. We emphasize that in dealing with standards for imposition of the death sentence we intimate no view regarding the authority of a State or of the Congress to fix mandatory, minimum sentences for noncapital crimes. 14 The statute provided that, in sentencing, the jury should consider "any mitigating circumstances or aggravating circumstances otherwise authorized by law" in addition to 10 specified aggravating circumstances. See Ga.Code Ann. § 27.2534.1(b) (Supp.1975). Mr. Justice WHITE, who also voted to uphold the statute in an opinion joined by THE CHIEF JUSTICE and Mr. Justice REHNQUIST, noted that the Georgia Legislature had decided to permit "the jury to dispense mercy on the basis of factors too intangible to write into a statute." Gregg, 428 U.S., at 222, 96 S.Ct., at 2947. 15 The opinion of Justices STEWART, POWELL, and STEVENS in Proffitt noted that the Florida statute "provides that '[a]ggravating circumstances shall be limited to . . . [eight specified factors]' " and that there was "no such limiting language introducing the list of statutory mitigating factors." 428 U.S., at 250 n. 8, 96 S.Ct., at 2966 n. 8. Mr. Justice WHITE, joined by THE CHIEF JUSTICE and Mr. Justice REHNQUIST, accepted the interpretation of the statute contained in the opinion of Justices STEWART, POWELL, and STEVENS. See id., at 260, 96 S.Ct., at 2970. 16 In view of our holding that Lockett was not sentenced in accord with the Eighth Amendment, we need not address her contention that the death penalty is constitutionally disproportionate for one who has not been proved to have taken life, to have attempted to take life, or to have intended to take life, or her contention that the death penalty is disproportionate as applied to her in this case. Nor do we address her contentions that the Constitution requires that the death sentence be imposed by a jury; that the Ohio statutory procedures impermissibly burden the defendant's exercise of his rights to plead not guilty and to be tried by a jury; and that it violates the Constitution to require defendants to bear the risk of nonpersuasion as to the existence of mitigating circumstances in capital cases. 1 Ohio Rev.Code Ann. § 2903.01(B) (1975) provides that "[n]o person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit . . . aggravated robbery," and § 2903.01(C) states that one doing so is guilty of aggravated murder. Under § 2929.04(A)(7), the commiss on of the same armed robbery serves as an aggravating specification to the murder and requires the imposition of the death penalty upon the principal offender unless the existence of one of the three permitted mitigating circumstances is established by a preponderance of the evidence. Sections 2923.03(A) and (F) provide that an aider or abettor who acts "with the kind of culpability required for the commission of [the principal] offense" shall be "prosecuted and punished as if he were a principal offender." The finishing stroke is then delivered by Ohio's statutory definition of "purpose." Under § 2901.22(A), "[a] person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature." (Emphasis added.) In this case, as the three dissenting justices of the Ohio Supreme Court noted, 49 Ohio St.2d 48, 68, 358 N.E.2d 1062, 1075 (1976), the jury was instructed that Lockett could be found to have "purposely" aided a murder merely by taking part in a robbery in which the threat of force was to be employed. The jury was instructed: "If the conspired robbery and the manner of its accomplishment would be reasonably likely to produce death, each plotter is equally guilty with the principal offender as an aider and abettor in the homicide, even though the aider and abettor was not aware of the particular weapon used to accomplish the killing." The State presented no testimony indicating any prior plan actually to fire the gun in the course of the robbery. The triggerman, Parker, testified that the gun discharged accidentally when the proprietor of the pawnshop grabbed at it. App. 50-51, 53. 2 I do not find entirely convincing the disproportionality rule embraced by my Brother WHITE. The rule that a defendant must have Eighth Amendment purposes. What if a defendant personally commits the act proximately causing death by pointing a loaded gun at the robbery victim, verbally threatens to use fatal force, admittedly does not intend to cause a death, yet knowingly creates a high probability that the gun will discharge accidentally? What if a robbery participant, in order to avoid capture or even for wanton sport, personally and deliberately uses grave physical force with conscious intent to inflict serious bodily harm, but not to kill, and a death results? May we as judges say that for Eighth Amendment purposes the absence of a "conscious purpose of producing death," post, at 2985, transforms the culpability of those defendants' actions? Applying a requirement of actual intent to kill to defendants not immediately involved in the physical act causing death, moreover, would run aground on intricate definitional problems attending a felony murder. What intention may a State attribute to a robbery participant who sits in the getaway car, knows that a loaded gun will be brandished by his companion in the robbery inside the store, is willing to have the gun fired if necessary to make an escape but not to accomplish the robbery, when the victim is shot by the companion even though not necessary for escape? What if the unarmed participant stands immediately inside the store as a lookout, intends that a loaded gun merely be brandished, but never bothered to discuss with the triggerman what limitations were appropriate for the firing of the gun? What if the same lookout personally intended that the gun never be fired, but, after his companion fires a fatal shot to prevent the victim from sounding an alarm, approves and takes off? The requirement of actual intent to kill in order to inflict the death penalty would require this Court to impose upon the States an elaborate "constitutionalized" definition of the requisite mens rea, involving myriad problems of line drawing that normally are left to jury discretion but that, in disproportionality analysis, have to be decided as issues of law, and interfering with the substantive categories of the States' criminal law. And such a rule, even if workable, is an incomplete method of ascertaining culpability for Eighth Amendment purposes, which necessarily is a more subtle mixture of action, inaction, and degrees of mens rea. Finally, I must question the data relied upon by my Brother WHITE in concluding, post, at 2983, that only "extremely rare[ly]" has the death penalty been used when a defendant did not specifically intend the death of the victim. The representation made by petitioner Lockett, even if accepted uncritically, was merely that, of 363 reported cases involving executions from 1954 to 1976, in 347 the defendant "personally committed a homicidal assault"—not that the defendant had actual intention to kill. App. to Brief for Petitioner 1b. Of contemporary death penalty statutes, my Brother WHITE concedes that approximately half permit the execution of persons who did not actually intend to cause death. 3 The 18 state statutes specifically permitting consideration of a defendant's minor degree of involvement are Ala. Code, Tit. 13, § 13-11-7(4) (1975); Ariz.Rev.Stat.Ann. § 13-454(F)(3) (Supp.1977); Ark.Stat.Ann. § 41-1304(5) (1977); Cal. Penal Code Ann. § 190.3(i) (West Supp.1978); Fla.Stat. § 921.141(6)(d) (Supp.1978); Ind. Code § 35-50-2-9(c)(4) (Supp.1977); Ky.Rev.Stat. § 532.025(2)(b)(5) (Supp. 977); La. Code Crim.Proc., Art. 905.5(g) (West Supp.1978); Mo.Rev.Stat. § 565.012.3(4) (Supp.1978); Mont.Rev. Codes Ann. § 95-2206.9(6) (Supp.1977); Neb.Rev.Stat. § 29-2523(2)(e) (1975); Nev.Rev.Stat. § 200.035(4) (1977); N.C.Gen.Stat. § 15A-2000(f)(4) (Supp.1977), added by 1977 N.C.Sess. Laws, ch. 406; S.C. Code § 16-3-20(C)(b)(4) (Supp.1978); Tenn. Code Ann. § 39-2404(j)(5) (Supp.1977); Utah Code Ann. § 76-3-207(1)(f) (Supp.1977); Wash.Rev. Code § 9A.32.045(2)(d) (Supp.1977); Wyo.Stat. §§ 6-54.2(c), (d), and (j)(iv) (Supp.1977), added by 1977 Wyo.Sess. Laws, ch. 122. The nine state statutes allowing consideration of any mitigating circumstance are Del. Code Ann., Tit. 11, § 4209(c) (Supp.1977); Ga. Code § 27-2534.1(b) (1975); Idaho Code § 19-2515(c) (Supp.1977); Ill.Rev.Stat., ch. 38, § 9-1(c) (Supp.1978); Miss. Code Ann. § 97-3-21 (Supp.1977), see Jackson v. State, 337 So.2d 1242, 1254 (Miss.1976); N.H.Rev.Stat.Ann. § 630:5(II) (Supp.1977); 21 Okl.Stat., Tit. 21, § 701.10 (Supp.1977); Tex.Code Crim.Proc. Ann., Art. 37.071(b)(2) (Vernon Supp.1978), see Jurek v. Texas, 428 U.S. 262, 272-273, 96 S.Ct. 2950, 2956-2957, 49 L.Ed.2d 929 (1976); Va. Code § 19.2-264.4(B) (Supp.1977). 1 See Furman v. Georgia, 408 U.S., at 240, 92 S.Ct., at 2727 (Douglas, J., concurring). 2 See id., at 306, 92 S.Ct., at 2760 (STEWART, J., concurring). 3 See id., at 310, 92 S.Ct., at 2762 (WHITE, J., concurring). 4 The Court took a further step along this path in Roberts (Harry) v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977), which held that the imposition of a mandatory death sentence even upon one convicted of the first-degree murder of a police officer engaged in the performance of his duties constituted cruel and unusual punishment. 5 The plurality's general endorsement of individualized sentencing as representing enlightened public policy even apart from the Eighth Amendment context, ante, at 602-603 is not only questionable but also highly inappropriate in light of the fact that Congress, after detailed study of the matter, is currently giving serious consideration to legislation adopting the view that the goals of the criminal law are best achieved by a system of sentencing which narrowly limits the discretion of the sentencer. See S. 1437, 95th Cong., 2d Sess. (approved by the Senate on Jan. 30, 1978). 6 The study is based upon reported appellate opinions. There were eight additional cases in which the facts were not reported in sufficient detail to permit a determination as to the status of the executed person. I recognize that because of the absence of reported appellate opinions for some cases this study does not include all executions within the relevant time period. There is no reason whatsoever to suppose, however, that the statistics relevant to these executions would alter the conclusions to be drawn from those included in the study. 7 In two of these cases the executed person arranged for another to commit the murder for him. I realize that it may be conceivable that a few of the "triggermen" actually executed lacked an intent to kill. But such cases will of necessity be rare. 8 U.S. Department of Justice, Law Enforcement Assistance Administration, National Prisoner Statistics Bulletin No. SD-NPS-CP-3, Capital Punishment 1974, pp. 16-17 (Nov. 1975). 9 Section 2.02(2)(c) provides: "A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation." In contrast, § 2.02(2)(a) provides: "A person acts purposely with respect to a material element of an offense when: "(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result . . . ." 10 I find it unnecessary to address other constitutional challenges to the death sentences imposed in these cases.

01

438 U.S. 637 98 S.Ct. 2977 57 L.Ed.2d 1010 Willie Lee BELL, Petitioner,v.State of OHIO. No. 76-6513. Argued Jan. 17, 1978. Decided July 3, 1978. Syllabus Petitioner, whose conviction of aggravated murder with a specification that it occurred during a kidnaping and death sentence were affirmed by the Ohio Supreme Court, contends that the Ohio death penalty statute (see Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973) violated his rights under the Eighth and Fourteenth Amendments because it prevented the sentencing judge from considering the particular circumstances of his crime and aspects of his character and record as mitigating factors. Held: The judgment is reversed insofar as it upholds the death penalty, and the case is remanded. Pp. 642-643; 624-628; 643; 643-644. 48 Ohio St.2d 270, 358 N.E.2d 556, reversed in part and remanded. Mr. Chief Justice BURGER, joined by Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS, concluded: 1 1. "The Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant's c aracter or record and any of the circumstances of the offense that the defendant proffers." Lockett v. Ohio, 438 U.S., at 604, 98 S.Ct., at 2965. P. 642. 2 2. "The Ohio death penalty statute does not permit the type of individualized consideration of mitigating factors" that is required by the Eighth and Fourteenth Amendments. Lockett v. Ohio, 438 U.S., at 606, 98 S.Ct., at 2965. P. 642. 3 Mr. Justice WHITE concluded that petitioner's death sentence should be vacated on the ground that the Ohio death penalty statute permits a defendant convicted of aggravated murder with specifications to be sentenced to death, as petitioner was in this case, without a finding that he intended death to result. Pp. 624-628. 4 Mr. Justice MARSHALL, being of the view that the death penalty is, under all circumstances, a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, concurred in the judgment. Pp. 643-644. 5 Mr. Justice BLACKMUN concluded that petitioner's death sentence should be vacated on the ground that the Ohio death penalty statute is deficient in regards to petitioner, who was charged as an aider and abettor in a murder, in failing to allow consideration of the degree of petitioner's involvement, and the character of his mens rea, in the crime. P. 643. 6 H. Fred Hoefle, Cincinnati, Ohio, for petitioner. 7 Leonard Kirschner, Cincinnati, Ohio, for respondent. 8 Mr. Chief Justice BURGER delivered the opinion of the Court with respect to the facts of the case and the proceedings below (Part I), together with an opinion (Part II) in which Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS joined, on the constitutionality of the statute under which petitioner was sentenced to death, and announced the judgment of the Court. 9 We granted certiorari in this case to consider whether the imposition of the death penalty upon Willie Lee Bell pursuant to Ohio Rev.Code Ann. §§ 2929.01-2929.04 (1975) violated the Eighth and Fourteenth Amendments. 10 * Bell was convicted of aggravated murder with the specification that the murder occurred in the course of a kidnaping. He was sentenced to death. 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977). 11 On October 16, 1974, Bell, who was then 16 years old, met a friend, Samuel Hall, who was then 18, at a youth center in Cincinnati, Ohio. They left the center and went to Hall's home where Hall borrowed a car and proceeded to drive Bell around the area. They followed a car driven by 64-year-old Julius Graber into a parking garage, and Hall, armed with a "sawed off" shotgun, forced Graber to surrender his car keys. Graber was placed, unharmed, into the trunk of his own car. Hall then drove Graber's car and Bell followed in Hall's car to the latter's home. There, Bell got into Graber's car with Hall and, following Hall's directions, drove to a nearby cemetery. 12 A resident of an apartment near the cemetery saw Graber's car parked on the service road of the cemetery with its parking lights on. He heard two car doors close and then a voice screaming, "Don't shoot me, don't shoot me," followed by two shots. He saw someone return to Graber's car and slide from the passenger's seat into the driver's seat. After observing Graber's car proceed away with lights off—he called the police. 13 The police found Graber lying face down in the cemetery with a massive wound on the back of his head and another on his right cheek. He died en route to the hospital. 14 Although Bell did not testify at his trial, he gave his version of the killing to the police after his arrest in a statement that was recorded and introduced at trial. Bell denied any intention to participate in a killing. He said that after he and Hall had parked in the cemetery, he had asked Hall what they were going to do next, and that Hall had replied: "We'll see. Give me the keys." Hall then, according to Bell, released Graber from the trunk and marched him into a forested area to the rear of the cemetery out of Bell's sight. Bell then heard Graber pleading for his life and heard a gunshot. According to Bell, Hall then came back to the car, reloaded the gun, and returned to the wooded area. Bell said he heard a second shot and Hall returned to the car and drove to Dayton, where they spent the night with friends of Hall. 15 The next day, with Bell driving Graber's car, Bell and Hall stopped at a service station in Dayton. Hall used the shotgun to obtain the keys to the attendant's car, and forced the attendant into the trunk. Hall then drove the attendant's car away from the station with Bell following in Graber's car. A patrolman stopped the car that Hall was driving for a defective muffler and discovered the attendant in the trunk. Bell drove past Hall and the officer and returned to Cincinnati where he abandoned Graber's car. 16 After his arrest and indictment, Bell waived his right to a trial by jury and requested a trial by a three-judge panel. The panel unanimously found him guilty of aggravated murder and of the specification that the murder occurred in the course of a kidnaping. That offense required the death penalty under Ohio Rev.Code Ann. §§ 2929.03, 2929.04 (1975), which is set forth in the Appendix to our opinion in Lockett v. Ohio, 438 U.S. 586, 609, 98 S.Ct. 2954, 2967, 57 L.Ed.2d 973, decided today. 17 Pursuant to Ohio law, the panel ordered a presentence investigation and psychiatric examination of Bell. The psychiatrists' report was directed specifically at the three mitigating factors and concluded that none of them were present. It also noted, however, that Bell claimed not to have been aware of what Hall was doing when he shot Graber. 18 The presentence report contained detailed information about the offense and about Bell's background, intelligence, prior offenses, character, and habits. It noted that Hall had accused Bell of actually firing the shotgun at Graber. In addition to describing Bell as having "low average or dull normal intellectual capability," it noted that Bell had been cited in juvenile court for a series of prior offenses and had allegedly been using mescaline on the night of the offense. 19 The three-judge panel permitted both sides the opportunity to introduce evidence and make arguments regarding the proper penalty. Bell testified that he had been under the influence of drugs virtually every day for three years prior to his arrest and on the night of the killing. He also said that he had viewed Hall as a "big brother" and had followed Hall's instructions because he had been "scared." Several of Bell's teachers testified that Bell had a drug problem and was emotionally unstable and immature for his age. 20 The defense argued that Bell had acted out of fear and coercion and that the offense was due to Bell's mental deficiency. In support of his contention that Bell was mentally deficient, defense counsel argued that Bell's minority established mental deficiency as a matter of law; he also argued that Bell was mentally deficient compared to other teenagers because of his drug problem and emotional instability and that Bell's mental deficiency contributed to his passive part in the crime. 21 Prior to sentencing, Bell moved that the Ohio death penalty be declared unconstitutional under the Eighth and Fourteenth Amendments, contending that the Ohio death penalty statute, which had been enacted after Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), severely limited the factors that would support an argument for mercy. Bell contended that his youth, the fact that he cooperated with the police, and the lack of proof that he had participated in the actual killing strongly supported an argument for a penalty less than death in this case. He also contended that Ohio's post-Furman death penalty statute precluded him from requesting a lesser sentence on the basis of those factors. 22 After considering the presentence and psychiatric reports as well as oth r evidence and the arguments of counsel, the panel concluded that none of the mitigating circumstances defined by the Ohio statute had been established. Accordingly, Bell was sentenced to death. 23 In the Ohio Supreme Court, Bell unsuccessfully renewed his contention that the Ohio death penalty violated the Eighth and Fourteenth Amendments. He also contended, among other things, that the evidence was insufficient to sustain his conviction for aggravated murder because there was no proof that he had intended to kill or that he had aided and abetted Hall with the intent that Graber be killed. That court rejected these arguments and held that the evidence that Bell had aided and abetted was sufficient to sustain the conviction because, under Ohio law, an aider and abettor could be prosecuted and punished as if he were the principal offender. Alternatively, the court concluded that the trial panel might have reasonably concluded that Bell either committed or actively assisted in the murder. II 24 Bell contends that the Ohio death penalty statute violated his rights under the Eighth and Fourteenth Amendments because it prevented the sentencing judges from considering the particular circumstances of his crime and aspects of his character and record as mitigating factors. For the reasons stated in Part III of our opinion in Lockett v. Ohio, 438 U.S., at 597-609, 98 S.Ct., at 2961-2967, we have concluded that "the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers." 438 U.S., at 604, 98 S.Ct., at 2965. We also concluded that "[t]he Ohio death penalty statute does not permit the type of individualized consideration of mitigating factors," 438 U.S., at 606, 98 S.Ct., at 2965, that is required by the Eighth and Fourteenth Amendments. We therefore agree with Bell's contention.* 25 Accordingly, the judgment of the Ohio Supreme Court is reversed to the extent that it upholds the imposition of the death penalty, and the case is remanded for further proceedings. 26 Mr. Justice BRENNAN took no part in the consideration or decision of this case. 27 Mr. Justice BLACKMUN, concurring in part and concurring in the judgment. 28 I join Part I of the Court's opinion and concur in the judgment. In accord with my views stated separately in Lockett v. Ohio, 438 U.S 586, 613, 98 S.Ct. 2954, 2969, 57 L.Ed.2d 973, I would reverse the judgment of the Ohio Supreme Court insofar as it upheld the imposition of the death penalty on petitioner Bell. Petitioner was charged, inter alia, as an aider and abettor in the murder of Julius Graber, and the trial court's judgment was sustained on that basis by the Ohio Supreme Court. 48 Ohio St.2d 270, 278, 358 N.E.2d 556, 563 (1976). Accordingly, I would find the Ohio capital penalty statute deficient in failing to allow consideration of the degree of petitioner's involvement, and the character of his mens rea, in the crime. 29 Mr. Justice MARSHALL, concurring in the judgment. 30 I continue to believe that the death penalty is, under all circumstances a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Furman v. Georgia, 408 U.S. 238, 314-374, 92 S.Ct. 2726, 2764-2796, 33 L.Ed.2d 346 (1972) (MARSHALL, J., concurring); Gregg v. Georgia, 428 U.S. 153, 231-241, 96 S.Ct. 2909, 2973-2977, 49 L.Ed.2d 859, 904 (1976) (MARSHALL, J., dissenting), and thus disagree with the Court's assumption to the contrary. See Lockett v. Ohio, 438 U.S. 586, 619, 98 S.Ct. 2954, 2972, 57 L.Ed.2d 973 (MARSHALL, J., concurring in judgment). I join in the Court's judgment insofar as it requires that petitioner's death sentence be vacated. 31 Mr. Justice REHNQUIST, dissenting. 32 For the reasons stated in my concurring and dissenting opinion in Lockett v. Ohio, 438 U.S. 586, 628, 98 S.Ct. 2954, 2973, 57 L.Ed.2d 973, I would affirm the judgment of the Supreme Court of Ohio in this case. I therefore dissent from the Court's judgment reversing it. * In view of our conclusion that Bell's death sentence cannot stand due to the Ohio statute's limits on the consideration of mitigating circumstances, we do not address (a) Bell's contention that the death penalty is disproportionate as applied in this case or (b) his contentions that the Ohio capital sentencing procedure violates the Eighth and Fourteenth Amendments because of an alleged lack of meaningful appellate review, because the jury does not participate in sentencing, and because the defendant must bear the risk of nonpersuasion as to the existence of mitigating factors. Nor do we reach Bell's contention that the procedure under which he was tried and sentenced infringed his rights under the Sixth and Fourteenth Amendments. Our grant of certiorari in this case was limited to Eighth and Fourteenth Amendment issues. See 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977).

01

438 U.S. 696 98 S.Ct. 3012 57 L.Ed.2d 1052 UNITED STATES, Petitioner,v.State of NEW MEXICO. No. 77-510. Argued April 24, 25, 1978. Decided July 3, 1978. Syllabus The United States, in setting aside the Gila National Forest from other public lands, held to have reserved the use of water out of the Rio Mimbres only where necessary to preserve the timber in the forest or to secure favorable water flows, and hence not to have a reserved right for aesthetic, recreational, wildlife-preservation, and stockwatering purposes. That this was Congress' intent is revealed in the limited purposes for which the national forest system was created and in Congress' deference to state water law in the Organic Administration Act of 1897 and other legislation. While the Multiple-Use Sustained-Yield Act of 1960 was intended to broaden the purposes for which national forests had previously been administered, Congress did not intend thereby to reserve additional water in forests previously withdrawn under the 1897 Act. Pp. 698-718. 90 N.M. 410, 564 P.2d 615, affirmed. James W. Moorman, Washington, D.C., for petitioner. Richard A. Simms, Santa Fe, N.M., for respondent. John U. Carlson, Denver, Colo., for the Twin Lakes Reservoir & Canal Co., et al., as amici curiae. Mr. Justice REHNQUIST delivered the opinion of the Court. 1 The Rio Mimbres rises in the southwestern highlands of New Mexico and flows generally southward, finally disappearing in a desert sink just north of the Mexican border. The river originates in the upper reaches of the Gila National Forest, but during its course it winds more than 50 miles past privately owned lands and provides substantial water for both irrigation and mining. In 1970, a stream adjudication was begun by the State of New Mexico to determine the exact rights of each user to water from the Rio Mimbres.1 In this adjudication the United States claimed reserved water rights for use in the Gila National Forest. The State District Court held that the United States, in setting aside the Gila National Forest from other public lands, reserved the use of such water "as may be necessary for the purposes for which [the land was] withdrawn," but that these purposes did not include recreation, aesthetics, wildlife preservation, or cattle grazing. The United States appealed unsuccessfully to the Supreme Court of New Mexico. Mimbres Valley Irrigation Co. v. Salopek, 90 N.M. 410, 564 P.2d 615 (1977). We granted certiorari to consider whether the Supreme Court of New Mexico had applied the correct principles of federal law in determining petitioner's reserved rights in the Mimbres. 434 U.S. 1008, 98 S.Ct. 716, 54 L.Ed.2d 750. We now affirm. 2 * The question posed in this case—what quantity of water, if any, the United States reserved out of the Rio Mimbres when it set aside the Gila National Forest in 1899—is a question of implied intent and not power. In California v. United States, 438 U.S. 645, at 653-663, 98 S.Ct. 2985, at 2990-2995, 57 L.Ed.2d 1018, we had occasion to discuss the respective authority of Federal and State Governments over waters in the Western States.2 The Court has previously concluded that whatever powers the States acquired over their waters as a result of congressional Acts and admission into the Union, however, Congress did not intend thereby to relinquish its authority to reserve unappropriated water in the future for use on appurtenant lands withdrawn from the public domain for specific federal purposes. Winters v. United States, 207 U.S. 564, 577, 28 S.Ct. 207, 211, 52 L.Ed. 340 (1908); Arizona v. California, 373 U.S. 546, 597-598, 83 S.Ct. 1468, 1496-1497, 10 L.Ed.2d 542 (1963); Cappaert v. United States, 426 U.S. 128, 143-146, 96 S.Ct. 2062, 2071-2073, 48 L.Ed.2d 523 (1976). 3 Recognition of Congress' power to reserve water for land which is itself set apart from the public domain, however, does not answer the question of the amount of water which has been reserved or the purposes for which the water may be used. Substantial portions of the public domain have been withdrawn and reserved by the United States for use as Indian reservations, forest reserves, national parks, and national monuments. And water is frequently necessary to achieve the purposes for which these reservations are made. But Congress has seldom expressly reserved water for use on these withdrawn lands. If water were abundant, Congress' silence would pose no problem. In the arid parts of the West, however, claims to water for use on federal reservations inescapably vie with other public and private claims for the limited quantities to be found in the rivers and streams. This competition is compounded by the sheer quantity of reserved lands in the Western States, which lands form brightly colored swaths across the maps of these States.3 4 The Court has previously concluded that Congress, in giving the President the power to reserve portions of the federal domain for specific federal purposes, impliedly authorized him to reserve "appurtenant water than unappropriated to the extent needed to accomplish the purpose of the reservation." Cappaert, supra, at 138, 96 S.Ct., at 2069 (emphasis added). See Arizona v. California, supra, 373 U.S., at 595-601, 83 S.Ct., at 1495-1498; United States v. District Court for Eagle County, 401 U.S. 520, 522-523, 91 S.Ct. 998, 1000-1001, 28 L.Ed.2d 278 (1971); Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 805, 96 S.Ct. 1236, 1240, 47 L.Ed.2d 483 (1976). While many of the contours of what has come to be called the "implied-reservation-of-water doctrine" remain unspecified, the Court has repeatedly emphasized that Congress reserved "only that amount of water necessary to fulfill the purpose of the reservation, no more." Cappaert, supra, at 141, 96 S.Ct., at 2071. See Arizona v. California, supra, at 600-601, 83 S.Ct., at 1497-1498; District Court for Eagle County, supra, at 523, 91 S.Ct., at 1001. Each time this Court has applied the "implied-reservation-of-water doctrine," it has carefully examined both the asserted water right and the specific purposes for which the land was reserved, and concluded that without the water the purposes of the reservation would be entirely defeated.4 5 This careful examination is required both because the reservation is implied, rather than expressed, and because of the history of congressional intent in the field of federal-state jurisdiction with respect to allocation of water. Where Congress has expressly addressed the question of whether federal entities must abide by state water law, it has almost invariably deferred to the state law.5 See California v. United States, 438 U.S., at 653-670, 678-679, 98 S.Ct., at 2990-2998, 3002-3003. Where water is necessary to fulfill the very purposes for which a federal reservation was created, it is reasonable to conclude, even in the face of Congress' express deference to state water law in other areas, that the United States intended to reserve the necessary water. Where water is only valuable for a secondary use of the reservation, however, there arises the contrary inference that Congress intended, consistent with its other views, that the United States would acquire water in the same manner as any other public or private appropriator. 6 Congress indeed has appropriated funds for the acquisition under state law of water to be used on federal reservations. Thus, in the National Park Service Act of Aug. 7, 1946, 60 Stat. 885, as amended, 16 U.S.C. § 17j-2 (1976 ed.), Congress authorized appropriations for the "[i]nvestigation and establishment of water rights in accordance with local custom, laws, and decisions of courts, including the acquisition of water rights or of lands or interests in lands or rights-of-way for use and protection of water rights necessary or beneficial in the administration and public use of the national parks and monuments." (Emphasis added.)6 The agencies respons ble for administering the federal reservations have also recognized Congress' intent to acquire under state law any water not essential to the specific purposes of the reservation.7 7 The State District Court referred the issues in this case to a Special Master, who found that the United States was diverting 6.9 acre-feet per annum of water for domestic-residential use, 6.5 acre-feet for road-water use, 3.23 acre-feet for domestic-recreational use, and .10 acre-foot for "wildlife" purposes.8 The Special Master also found that specified amounts of water were being used in the Gila National Forest for stock watering and that an "instream flow" of six cubic feet per second was being "used" for the purposes of fish preservation. The Special Master apparently believed that all of these uses fell within the reservation doctrine, and also concluded that the United States might have reserved rights for future water needs, ordering it to submit a report on future requirements within one year of his decision. 8 The District Court of Luna County disagreed with many of the Special Master's legal conclusions, but agreed with the Special Master that the Government should prepare within one year a report covering any future water requirements that might support a claim of reserved right in the waters of the Rio Mimbres. The District Court concluded that the United States had not established a reserved right to a minimum instream flow for any of the purposes for which the Gila National Forest was established, and that any water rights arising from cattle grazing by permittees on the forest should be adjudicated "to the permittee under the law of prior appropriation and not to the United States." 9 The United States appealed this decision to the Supreme Court of New Mexico. The United States contended that it was entitled to a minimum instream flow for "aesthetic, environmental, recreational and 'fish' purposes." 90 N.M., at 412, 564 P.2d, at 617. The Supreme Court of New Mexico concluded that, at least before the ultiple-Use Sustained-Yield Act of 1960, 74 Stat. 215, 16 U.S.C. § 528 et seq. (1976 ed.), national forests could only be created "to insure favorable conditions of water flow and to furnish a continuous supply of timber" and not for the purposes upon which the United States was now basing its asserted reserved rights in a minimum instream flow. 90 N.M., at 412-413, 564 P.2d, at 617-619. The United States also argued that it was entitled to a reserved right for stockwatering purposes. The State Supreme Court again disagreed, holding that stockwatering was not a purpose for which the national forests were created. Id., at 414, 564 P.2d, at 619. II A. 10 The quantification of reserved water rights for the national forests is of critical importance to the West, where, as noted earlier, water is scarce and where more than 50% of the available water either originates in or flows through national forests.9 When, as in the case of the Rio Mimbres, a river is fully appropriated, federal reserved water rights will frequently require a gallon-for-gallon reduction in the amount of water available for water-needy state and private appropriators. This reality has not escaped the attention of Congress and must be weighed in determining what, if any, water Congress reserved for use in the national forests. 11 The United States contends that Congress intended to reserve minimum instream flows for aesthetic, recreational, and fish-preservation purposes. An examination of the limited purposes for which Congress authorized the creation of national forests, however, provides no support for this claim. In the mid and late 1800's, many of the forests on the public domain were ravaged and the fear arose that the forest lands might soon disappear, leaving the United States with a shortage both of timber and of watersheds with which to encourage stream flows while preventing floods.10 It was in answer to these fears that in 1891 Congress authorized the President to "set apart and reserve, . . . any State or Territory having public land bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations." Creative Act of Mar. 3, 1891, § 24, 26 Stat. 1103, as amended, 16 U.S.C. § 471 (repealed 1976). 12 The Creative Act of 1891 unfortunately did not solve the forest problems of the expanding Nation. To the dismay of the conservationists, the new national forests were not adequately attended and regulated; fires and indiscriminate timber cutting continued their toll.11 To the anguish of Western settlers, reservations were frequently made indiscriminately. President Cleveland, in particular, responded to pleas of conservationists for greater protective measures by reserving some 21 million acres of "generally settled" forest land on February 22, 1897.12 President Cleveland's action drew immediate and strong protest from Western Congressmen who felt that the "hasty and ill considered" reservation might prove disastrous to the settlers living on or near these lands.13 13 Congress' answer to these continuing problems was three-fold. It suspended the President's Executive Order of February 22 1897; it carefully defined the purposes for which national forests could in the future be reserved; and it provided a charter for forest management and economic uses within the forests. Organic Administration Act of June 4, 1897, 30 Stat. 34, 16 U.S.C. § 473 et seq. (1976 ed.). In particular, Congress provided: 14 "No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States ; but it is not the purpose or intent of these provisions, or of [the Creative Act of 1891], to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes." 30 Stat. 35, as codified, 16 U.S.C. § 475 (1976 ed.) (emphasis added). 15 The legislative debates surrounding the Organic Administration Act of 1897 and its predecessor bills demonstrate that Congress intended national forests to be reserved for only two purposes—"[t]o conserve the water flows, and to furnish a continuous supply of timber for the people."14 30 Cong.Rec. 967 (1897) (Cong. McRae). See United States v. Grimaud, 220 U.S. 506, 515, 31 S.Ct. 480, 482, 55 L.Ed. 563 (1911). National forests were not to be reserved for aesthetic, environmental, recreational, or wildlife-preservation purposes.15 16 "The objects for which the forest reservations should be made are the protection of the forest growth against destruction by fire and ax, and preservation of forest conditions upon which water conditions and water flow are dependent. The purpose, therefore, of this bill is to maintain favorable forest conditions, without excluding the use of these reservations for other purposes. They are not parks set aside for nonuse, but have been established for economic reasons." 30 Cong.Rec. 966 (1897) (Cong. McRae). 17 Administrative regulations at the turn of the century confirmed that national forests were to be reserved for only these two limited purposes.16 18 Any doubt as to the relatively narrow purposes for which national forests were to be reserved is removed by comparing the broader language Congress used to authorize the establishment of national parks.17 In 1916, Congress created the National Park Service and provided that the 19 "fundamental purpose of the said parks, monuments, and reservations . . . is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same . . . unimpaired for the enjoyment of future generations." National Park Service Act of 1916, 39 Stat. 535, § 1, as amended, 16 U.S.C. § 1 (1976 ed.).18 20 When it was Congress' intent to maintain minimum instream flows within the confines of a national forest, it expressly so directed, as it did in the case of the Lake Superior National Forest: 21 "In order to preserve the shore lines, rapids, waterfalls, beaches and other natural features of the region in an unmodified state of nature, no further alteration of the natural water level of any lake or stream . . . shall be authorized." 16 U.S.C. § 577b (1976 ed.). 22 National park legislation is not the only instructive comparison. In the Act of Mar. 10, 1934, 48 Stat. 400, 16 U.S.C. § 694 (1976 ed.), Congress authorized the establishment within individual national forests of fish and game sanctuaries, but only with the consent of the state legislatures. The Act specifically provided: 23 "For the purpose of providing breeding places for game birds, game animals, and fish on lands and waters in the national forests not chiefly suitable for agriculture, the President of the United States is authorized, upon recommendation of the Secretary of Agriculture and the Secretary of Commerce and with the approval of the State legislatures of the respective States in which said national forests are situated, to establish by public proclamation certain specified and limited areas within said forests as fish and game sanctuaries or refuges which shall be devoted to the increase of game birds, game animals, and fish of all kinds naturally adapted thereto." (Emphasis added.) 24 If, as the dissent contends, post, at 722, Congress in the Organic Administration Act of 1897 authorized the reservation of forests to "improve and protect" fish and wildlife, the 1934 Act would have been unnecessary. Nor is the dissent's position consistent with Congress' concern in 1934 that fish and wildlife preserves only be created "with the approval of the State legislatures." 25 As the dissent notes, in creating what would ultimately become Yosemite National Park, Congress in 1890 explicitly instructed the Secretary of the Interior to provide against the wanton destruction of fish and game inside the forest and against their taking "for the purposes of merchandise or profit." Act of Oct. 1, 1890, § 2, 26 Stat. 651. Congress also instructed the Secretary to protect all "the natural curiosities, or wonders within such reservation, . . . in their natural condition." By comparison, Congress in the 1897 Organic Act expressed no concern for the preservation of fish and wildlife within national forests generally. Nor is such a concern found in any of the comments made during the legislative debate on the 1897 Act. Cf. also H.R. 119, 54th Cong., 1st Sess., 28 Cong.Rec. 6410 (1896).19 B 26 Not only is the Government's claim that Congress intended to reserve water for recreation and wildlife preservation inconsistent with Congress' failure to recognize these goals as purposes of the national forests, it would defeat the very purpose for which Congress did create the national forest system.20 27 "[F]orests exert a most important regulating influence upon the flow of rivers, reducing floods and increasing the water supply in the low stages. The importance of their conservation on the mountainous watersheds which collect the scanty supply for the arid regions of North America can hardly be overstated. With the natural regimen of the streams replaced by destructive floods in the spring, and by dry beds in the months when the irrigating flow is most needed, the irrigation of wide areas now proposed will be impossible, and regions now supporting prosperous communities will become depopulated." S. Doc. No. 105, 55th Cong., 1st Sess., 10 (1897). 28 The water that would be "insured" by preservation of the forest was to "be used for domestic, mining, milling, or irrigation purposes, under the laws of the State wherein such national forests are situated, or under the laws of the United States and the rules and regulations established thereunder." Organic Administration Act of 1897, 30 Stat. 36, 16 U.S.C. § 481 (1976 ed.). As this provision and its legislative history evidence, Congress authorized the national forest system principally as a means of enhancing the quantity of water that would be available to the settlers of the arid West. The Government, however, would have us now believe that Congress intended to partially defeat this goal by reserving significant amounts of water for purposes quite inconsistent with this goal. C 29 In 1960, Congress passed the Multiple-Use Sustained-Yield Act of 1960, 74 Stat. 215, 16 U.S.C. § 528 et seq. (1976 ed.), which provides 30 "It is the policy of Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes. The purposes of sections 528 to 531 of this title are declared to be supplemental to, but not in derogation of, the purposes for which the national forests were established as set forth in the [Organic Administration Act of 1897.]" 31 The Supreme Court of New Mexico concluded that this Act did not give rise to any reserved rights not previously authorized in the Organic Administration Act of 1897. "The Multiple-Use Sustained-Yield Act of 1960 does not have a retroactive effect nor can it broaden the purposes for which the Gila National Forest was established under the Organic Act of 1897." 90 N.M., at 413, 564 P.2d, at 618. While we conclude that the Multiple-Use Sustained-Yield Act of 1960 was intended to broaden the purposes for which national forests had previously been administered, we agree that Congress did not intend to thereby expand the reserved rights of the United States.21 32 The Multiple-Use Sustained-Yield Act of 1960 establishes the purposes for which the national forests "are established and shall be administered." (Emphasis added.) The Act directs the Secretary of the Agriculture to administer all forests, including those previously established, on a multiple-use and sustained-yield basis. H.R. 10572, 86th Cong., 2d Sess., 1 (1960). In the administration of the national forests, therefore, Congress intended the Multiple-Use Sustained-Yield Act of 1960 to broaden the benefits accruing from all reserved national forests. 33 The House Report accompanying the 1960 legislation, however, indicates that recreation, range, and "fish" purposes are "to be supplemental to, but not in derogation of, the purposes for which the national forests were established" in the Organic Administration Act of 1897. 34 "The addition of the sentence to follow the first sentence in section 1 is to make it clear that the declaration of congressional policy that the national forests are established and shall be administered for the purposes enumerated is supplemental to, but is not in derogation of, the purposes of improving and protecting the forest or for securing favorable conditions of water flows and to furnish a continuous supply of timber as set out in the cited provision of the act of June 4, 1897. Thus, in any establishment of a national forest a purpose set out in the 1897 act must be present but there may also exist one or more of the additional purposes listed in the bill. In other words, a national forest could not be established just for the purpose of outdoor recreation, range, or wildlife and fish purposes, but such purposes could be a reason for the establishment of the forest if there also were one or more of the purposes of improving and protecting the forest, securing favorable conditions of water flows, or to furnish a continuous supply of timber as set out in the 1897 act." H.R.Rep. No. 1551, 86th Cong., 2d Sess., 4 (1960), U.S.Code Cong. & Admin.News 1960, p. 2380. 35 As discussed earlier, the "reserved rights doctrine" is a doctrine built on implication and is an exception to Congress' explicit deference to state water law in other areas. Without legislative history to the contrary, we are led to conclude that Congress did not intend in enacting the Multiple-Use Sustained-Yield Act of 1960 to reserve water for the secondary purposes there established.22 A reservation of additional water could mean a substantial loss in the amount of water available for irrigation and domestic use, thereby defeating Congress' principal purpose of securing favorable conditions of water flow. Congress intended the national forests to be administered for broader purposes after 1960 but there is no indication that it believed the new purposes to be so crucial as to require a reservation of additional water. By reaffirming the primacy of a favorable water flow, it indicated the opposite intent. III 36 What we have said also answers the Government's contention that Congress intended to reserve water from the Rio Mimbr § for stockwatering purposes. The United States issues permits to private cattle owners to graze their stock on the Gila National Forest and provides for stockwatering at various locations along the Rio Mimbres. The United States contends that, since Congress clearly foresaw stockwatering on national forests, reserved rights must be recognized for this purpose. The New Mexico courts disagreed and held that any stockwatering rights must be allocated under state law to individual stockwaterers. We agree. 37 While Congress intended the national forests to be put to a variety of uses, including stockwatering, not inconsistent with the two principal purposes of the forests, stockwatering was not itself a direct purpose of reserving the land.23 If stockwatering could not take place in the Gila National Forest, Congress' purposes in reserving the land would not be defeated. Congress, of course, did intend to secure favorable water flows, and one of the uses to which the enhanced water supply was intended to be placed was probably stockwatering. But Congress intended the water supply from the Rio Mimbres to be allocated among private appropriators under state law. 16 U.S.C. § 481 (1976 ed.).24 There is no indication in the legislative histories of any of the forest Acts that Congress foresaw any need for the Forest Service to allocate water for stockwatering purposes, a task to which state law was well suited. IV 38 Congress intended that water would be reserved only where necessary to preserve the timber or to secure favorable water flows for private and public uses under state law. This intent is revealed in the purposes for which the national forest system was created and Congress' principled deference to state water law in the Organic Administration Act of 1897 and other legislation. The decision of the Supreme Court of New Mexico is faithful to this congressional intent and is therefore 39 Affirmed. 40 Mr. Justice POWELL, with whom Mr. Justice BRENNAN, Mr. Justice WHITE, and Mr. Justice MARSHALL join, dissenting in part. 41 I agree with the Court that the implied-reservation doctrine should be applied with sensitivity to its impact upon those who have obtained water rights under state law and to Congress' general policy of deference to state water law. See ante, at 699, 701-702, 705. I also agree that the Organic Administration Act of 1897, 30 Stat. 11, cannot fairly be read as evidencing an intent to reserve water for recreational or stockwatering purposes in the national forests.1 42 I do not agree, however, that the forests which Congress intended to "improve and protect" are the still, silent, lifeless places envisioned by the Court. In my view, the forests consist of the birds, animals, and fish—the wildlife—that inhabit them, as well as the trees, flowers, shrubs, and grasses. I therefore would hold that the United States is entitled to so much water as is necessary to sustain the wildlife of the forests, as well as the plants. I also add a word concerning the impact of the Court's holding today on future claims by the United States that the reservation of particular national forests impliedly reserved instream flows. 43 * My analysis begins with the language of the statute. The Organic Administration Act of 1897, as amended, 16 U.S.C. § 475, provides (1976 ed.), in pertinent part: 44 "No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States . . . ." 45 Although the language of the statute is not artful, a natural reading would attribute to Congress an intent to authorize the establishment of national forests for three purposes, not the two discerned by the Court. The New Mexico Supreme Court gave the statute its natural reading in this case when it wrote: 46 "The Act limits the purposes for which national forests are authorized to: 1) improving and protecting the forest, 2) securing favorable conditions of water flows, and 3) furnishing a continuous supply of timber." Mimbres Valley Irrigation Co. v. Salopek, 90 N.M. 410, 412, 564 P.2d 615, 617 (1977). 47 Congress has given the statute the same reading, stating that under the Organic Administration Act of 1897 national forests may be established for "the purposes of improving and protecting the forest or for securing favorable conditions of water flows, and to furnish a continuous supply of timber . . . ." H.R.Rep. No. 1551, 86th Cong., 2d Sess., 4 (1960), U.S.Code Cong. & Admin.News 1960, p. 2380, quoted ante, at 714-715; accord, S.Rep. No. 1407, 86th Cong., 2d Sess., 4 (1960). See also Note, New Mexico's National Forests and the Implied Reservation Doctrine, 16 Natural Resources J. 975, 991-992 (1976). 48 "[T]he Court not surprisingly attempts to keep this provision in the background, addressing it only . . . in a footnote," United States v. Sotelo, 436 U.S. 268, 283, 98 S.Ct. 1795, 1804, 56 L.Ed.2d 275 (1978) (REHNQUIST, J., dissenting), where it decides that the Act should be read as if it said national forests may "be created only 'to improve and protect the forest within the boundaries,' or, in ther words, 'for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber.' " Ante, at 707 n.14 (emphasis in original).2 The Court then concludes that Congress did not mean to "improve and protect" any part of the forest except the usable timber and whatever other flora is necessary to maintain the watershed. This, however, is not what Congress said. 49 The Court believes that its "reading of the Act is confirmed by its legislative history." Ibid. The matter is not so clear to me. From early times in English law, the forest has included the creatures that live there. J. Manwood, A Treatise and Discourse of the Laws of the Forrest 1-7 (1598); 1 W. Blackstone, Commentaries *289. Although the English forest laws themselves were not transplanted to the shores of the new continent, see generally Lund, Early American Wildlife Law, 51 N.Y.U.L.Rev. 703 (1976), the understanding that the forest includes its wildlife has remained in the American mind. In establishing the first forest reservations, the year before passage of the Organic Act of 1891, Congress exhibited this understanding by directing the Secretary of the Interior to "provide against the wanton destruction of the fish . . . and game found within said reservation, and against their capture or destruction, for the purposes of merchandise or profit." Act of Oct. 1, 1890, § 2, 26 Stat. 651.3 50 Similarly, the bill introduced by Representative McRae in the 54th Congress, upon which the Court relies in construing the statute, ante, at 707-708 n.14, directed the Secretary "to preserve the timber and other natural resources, and such natural wonders and curiosities and game as may be therein, from injury, waste, fire, spoliation, or other destruction . . . ." H.R. 119, 54th Cong., 1st Sess., 28 Cong.Rec. 6410 (1896). The bill that became law in the 55th Congress substituted for this provision the independent "improve and protect the forest" clause together with a general direction that the Secretary "make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction . . . ." Organic Administration Act of 1897, 30 Stat. 35, 16 U.S.C. § 551 (1976 ed.). Despite this rephrasing, Congress remained of the view that wildlife is part of the forest that it intended to "improve and protect" by passage of the 1897 Act, for in its first appropriation to implement the Act it directed that 51 "forest agents, superintendents, supervisors, and all other persons employed in connection with the administration and protection of forest reservations shall in all ways that are practicable, aid in the enforcement of the laws of the State or Territory in which said forest reservation is situated, in relation to the protection of fish and game . . . ." Act of Mar. 3, 1899, 30 Stat. 1095. 52 See also Act of May 23, 1908, 35 Stat. 259, 16 U.S.C. § 553 (1976 ed.). This understanding has continued down to the present day. See, e. g., Act of May 22, 1928, § 5, 45 Stat. 701, 16 U.S.C. § 581d (1976 ed.) (authorizing annual appropriations "[f]or such experiments and investigations as may be necessary in determining the life histories and habits of orest animals, birds, and wildlife"); Act of Mar. 29, 1944, § 1, 58 Stat. 132, 16 U.S.C. § 583 (1976 ed.) (authorizing the Secretary to establish sustained-yield units "in order to provide for a continuous and ample supply of forest products; and in order to secure the benefits of forests in maintenance of water supply, regulation of stream flow, prevention of soil erosion, amelioration of climate, and preservation of wildlife . . . .") (Emphasis supplied.)4 53 One may agree with the Court that Congress did not, by enactment of the Organic Administration Act of 1897, intend to authorize the creation of national forests simply to serve as wildlife preserves. But it does not follow from this that Congress did not consider wildlife to be part of the forest that it wished to "improve and protect" for future generations. It is inconceivable that Congress envisioned the forests it sought to preserve as including only inanimate components such as the timber and flora. Insofar as the Court holds otherwise, the 55th Congress is maligned and the Nation is the poorer, and I dissent.5 II 54 Contrary to the Court's intimations, cf. ante, at 711-713, I see no inconsistency between holding that the United States impliedly reserved the right to instream flows, and what the Court views as the underlying purposes of the 1897 Act. The national forests can regulate the flow of water—which the Court views as "the very purpose for which Congress did create the national forest system," ante, at 711-712—only for the benefit of appropriators who are downstream from the reservation. The reservation of an instream flow is not a consumptive use; it does not subtract from the amount of water that is available to downstream appropriators. Reservation of an instream flow therefore would be perfectly consistent with the purposes of the 1897 Act as construed by the Court.6 55 I do not dwell on this point, however, for the Court's opinion cannot be read as holding that the United States never reserved instream flows when it set aside national forests under the 1897 Act. The State concedes, quite correctly on the Court's own theory, that even in this case "the United States is not barred from asserting that rights to minimum instream flows might be necessary for erosion control or fire protection on the basis of the recognized purposes of watershed management and the maintenance of timber." Brief for Respondent 44 n.11. Thus, if the United States proves, in this case or others, that the reservation of instream flows is necessary to fulfill the purposes discerned by the Court, I find nothing in the Court's opinion that bars it from asserting this right. 1 The suit was initially filed in 1966 as a private action by the Mimbres Valley Irrigation Co. to enjoin alleged illegal diversions from the Rio Mimbres. In 1970, the State of New Mexico, pursuant to New Mexico Stat.Ann. § 75-4-4 (1953), filed a complaint-in-intervention seeking a general adjudication of water rights in the R o Mimbres and its tributaries. Under 43 U.S.C. § 666(a), "[c]onsent is given to join the United States as a defendant in any suit . . . for the adjudication of rights to the use of water of a river system or other source," including the reserved rights of the United States. See United States v. District Court for Eagle County, 401 U.S. 520, 91 S.Ct. 998, 28 L.Ed.2d 278 (1971); United States v. District Court for Water Div. No. 5, 401 U.S. 527, 91 S.Ct. 1003, 28 L.Ed.2d 284 (1971). 2 See also Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 98 S.Ct. 2002, 56 L.Ed.2d 570 (1978). 3 The percentage of federally owned land (excluding Indian reservations and other trust properties) in the Western States ranges from 29.5% of the land in the State of Washington to 86.5% of the land in the State of Nevada, an average of about 46%. Of the land in the State of New Mexico, 33.6% is federally owned. General Services Administration, Inventory Report on Real Property Owned by the United States Throughout the World as of June 30, 1974, pp. 17, 34, and App. 1, table 4. Because federal reservations are normally found in the uplands of the Western States rather than the flat lands, the percentage of water flow originating in or flowing through the reservations is even more impressive. More than 60% of the average annual water yield in the 11 Western States is from federal reservations. The percentages of average annual water yield range from a low of 56% in the Columbia-North Pacific water resource region to a high of 96% in the Upper Colorado region. In the Rio Grande water resource region, where the Rio Mimbres lies, 77% of the average runoff originates on federal reservations. C. Wheatley, C. Corker, T. Stetson, & D. Reed, Study of the Development, Management and Use of Water Resources on the Public Lands 402-406, and table 4 (1969). 4 In Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908), the Court was faced with two questions. First, whether Congress, when it created the Fort Belknap Indian Reservation by treaty, impliedly guaranteed the Indians a reasonable quantity of water. And second, whether Congress repealed this reservation of water when it admitted Montana to the Union one year later "upon an equal footing with the original States." In answering the first question, the Court emphasized that the reservation was formed to change the Indians' "nomadic and uncivilized" habits and to make them into "a pastoral and civilized people." Id., at 576, 28 S.Ct., at 211. Without water to irrigate the lands, however, the Fort Belknap Reservation would be "practically valueless" and "civilized communities could not be established thereon." Ibid. The purpose of the Reservation would thus be "impair[ed] or defeat[ed]." Id., at 577, 28 S.Ct., at 211. In answering the second question, the Court concluded that "it would be extreme to believe that within a year Congress destroyed the reservation and took from the Indians the consideration of their grant, leaving them a barren waste—took from them the means of continuing their old habits, yet did not leave them the power to change to new ones." Ibid. In Arizona v. California, the Court only had reason to discuss the Master's finding that the United States had reserved water for use on Arizona Indian reservations. Arizona argued that there was "a lack of evidence showing that the United States in establishing the reservations intended to reserve water for them." 373 U.S., at 598, 83 S.Ct., at 1497. The Court disagreed: "It is impossible to believe that when Congress created the great Colorado River Indian Reservation and when the Executive Department of this Nation created the other reservations they were unaware that most of the lands were of the desert kind—hot, scorching sands—and that water from the river would be essential to the life of the Indian people and to the animals they hunted and the the crops they raised." Id., at 598-599, 83 S.Ct., at 1497. The Court also pointed to congressional debate that indicated that Congress had intended to reserve the water for the reservations. Id., at 599, 83 S.Ct., at 1497. In Cappaert, Congress had given the President the power to reserve "objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government." American Antiquities Pr servation Act, 34 Stat. 225, 16 U.S.C. § 431 et seq. (1976 ed.). Pursuant to this power, the President had reserved Devil's Hole as a national monument. Devil's Hole, according to the Presidential Proclamation, is " 'a unique subsurface remnant of the prehistoric chain of lakes which in Pleistocene times formed the Death Valley Lake System' "; it also contains " 'a peculiar race of desert fish, and zoologists have demonstrated that this race of fish, which is found nowhere else in the world, evolved only after the gradual drying up of the Death Valley Lake System isolated this fish population from the original ancestral stock that in Pleistocene times was common to the entire region.' " 426 U.S., at 132, 96 S.Ct., at 2066. As the Court concluded, the pool was reserved specifically to preserve its scientific interest, principal of which was the Devil's Hole pupfish. Without a certain quantity of water, these fish would not be able to spawn and would die. This quantity of water was therefore impliedly reserved when the monument was proclaimed. Id., at 141, 96 S.Ct., at 2070. The Court, however, went on to note that the pool "need only be preserved, consistent with the intention expressed in the Proclamation, to the extent necessary to preserve its scientific interest. . . . The District Court thus tailored its injunction, very appropriately, to minimal need, curtailing pumping only to the extent necessary to preserve an adequate water level at Devil's Hole, thus implementing the stated objectives of the Proclamation." Ibid. (emphasis added). 5 See Hearings on S. 1275 before the Subcommittee on Irrigation and Reclamation of the Senate Committee on Interior and Insular Affairs, 88th Cong., 2d Sess., 302-310 (1964) (App. B, supplementary material submitted by Sen. Kuchel), listing 37 statutes in which Congress has expressly recognized the importance of deferring to state water law, from the Mining Act of 1866, § 9, 14 Stat. 253, to the Act of Aug. 28, 1958, § 202, 72 Stat. 1059, stating Congress' policy to "recognize and protect the rights and interests of the State of Texas in determining the development of the watersheds of the rivers . . . and its interests and rights in water utilization and control." 6 See also the Department of Agriculture Organic Act of 1944, 58 Stat. 737, 16 U.S.C. § 526 (1976 ed.), authorizing the appropriation of funds "for the investigation and establishment of water rights, including the purchase thereof or of lands or interests in land or rights-of-way for use and protection of water rights necessary or beneficial in connection with the administration and public use of the national forests." 7 Before this Court's decisions in FPC v. Oregon, 349 U.S. 435, 75 S.Ct. 832, 99 L.Ed. 1215 (1955) and Arizona v. California, recognizing reserved rights outside of Indian reservations, the Forest Service apparently believed that all of its water had to be obtained under state law. "Rights to the use of water for National Forest purposes will be obtained in accordance with State law." Forest Service Manual (1936). While the Forest Service has apparently modified its policy since those decisions, their Service Manual still indicates a policy of deferring to state water law wherever possible. "The right of the States to appropriate and otherwise control the use of water is recognized, and the policy of the Forest Service is to abide by applicable State laws and regulations relating to water use. When water is needed by the Forest Service either for development of programs, improvements, or other uses, action will be taken promptly to acquire necessary water rights. . . . " Forest Service Handbook § 2514 (Feb. 1960). "The rights to use water for national forest purposes will be obtained in accordance with State law. This policy is based on the act of June 4, 1897 (16 U.S.C. [§] 481)." Forest Service Manual § 2514.1 (Jan. 1960). 8 The District Court of Luna County, in its finding of facts, did not list any current water use for "wildlife" purposes. App. 226-227. The United States apparently did not object to this deletion in state court nor does it challenge the deletion in its brief before this Court. 9 Wheatley, Corker, Stetson & Reed, supra, n. 3, at 211. 10 J. Ise, The United States Forest Policy 62-118 (1972). 11 Id., at 120-122. 12 Id., at 129. President Cleveland's action more than doubled the acreage of then-existing United States forest reserves. Cf. id., at 120. 13 Id., at 130-139. Western Congressmen had objected since 1891 to what they viewed to be frequently indiscriminate creation of federal forest reserves. Id., at 129-130. A major complaint of the Western Congressmen was that rampant reserving of forest lands by the United States might leave "no opportunity there for further enlargement of civilization by the establishment of agriculture or mining." 30 Cong.Rec. 1281 (1897) (Sen. Cannon). 14 The Government notes that the Act forbids the establishment of national forests except "to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber," and argues from this wording that "improvement" and "protection" of the forests form a third and separate purpose of the national forest system. A close examination of the language of the Act, however, reveals that Congress only intended national forests to be established for two purposes. Forests would be created only "to improve and protect the forest within the boundaries," or, in other words, "for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber." This reading of the Act is confirmed by its legislative history. Nothing in the legislative history suggests that Congress intended national forests to be established for three purposes, one of which would be extremely broad. Indeed, it is inconceivable that a Congress which was primarily concerned with limiting the President's power to reserve the forest lands of the West would provide for the creation of forests merely "to improve and protect the forest within the boundaries"; forests would be reserved for their improvement and protection, but only to serve the purposes of timber protection and favorable water supply. This construction is revealed by a predecessor bill to the 1897 Act which was introduced but not passed in the 54th Congress; the 1896 bill provided: "That the object for which public forest reservations shall be established under the provisions of the act approved March 3, 1891, shall be to protect and improve the forests for the purpose of securing a continuous supply of timber for the people and securing conditions favorable to water flow." H.R. 119, 54th Cong., 1st Sess. (1896) (emphasis added). Earlier bills, like the 1897 Act, were less clear and could be read as setting forth either two or three purposes. Explanations of the bills by their congressional sponsors, however, clearly revealed that national forests would be established for only two purposes. Compare, for example, H.R. 119, 53d Cong., 1st Sess. (1893) ("[N]o public forest reservations shall be established except to improve and protect the forest within the reservation or for the purpose of securing favorable conditions of water flow and continuous supplies of timber to the people") with its sponsor's description of the bill, 25 Cong.Rec. 2375 (1893) (Cong. McRae) ("The bill authorizes the President to establish forest reservations, and to protect the forests 'for the purpose of securing favorable conditions of water flow and continuous supplies of timber to the people' "). 15 See 30 Cong.Rec. 986 (1897) (Cong. Bell); id., at 987 (Cong. Jones); H.R.Rep. No. 1593, 54th Cong., 1st Sess., 3 (1896); 25 Cong.Rec. 2435 (1893) (Cong. McRae); H.R.Rep. No. 2437, 52d Cong., 2d Sess., 2 (1893); S.Rep. No. 1002, 52d Cong., 1st Sess., 10, 12 (1892). 16 According to the 1901 Regulations of the Interior Department, "Public forest reservations are established to protect and improve the forests for the purpose of securing a permanent supply of timber for the people and insuring conditions favorable to continuous water flow." Department of Interior Circular, 30 L.D. 23, 24 (1900). Twelve years later, the Chief Forester also elaborated on the purposes of the national forests: "The National Forests are set aside specifically for the protection of water resources and the production of timber . . . . The aim of administration is essentially different from that of a national park, in which economic use of material resources comes second to the preservation of natural conditions on aesthetic grounds." U. S. Department of Agriculture, Report of the Forester 10-11 (1913). 17 As Congressman McRae noted in introducing a predecessor bill to the 1897 Act, Congress was "not dealing with parks, but forest reservations, and there is a vast difference." 25 Cong.Rec. 2375 (1893). 18 While in 1906 Congress transferred jurisdiction of the national forests to the Department of Agriculture, Transfer Act of 1905, 33 Stat. 628, national parks are exclusively under the jurisdiction of the Department of the Interior. This difference in jurisdiction again points up the limited purposes of the national forests, as explained in the House Report on the National Park Service Act: "It was the unanimous opinion of the committee that there should not be any conflict of jurisdiction as between the departments [of the Interior and Agriculture] of such a nature as might interfere with the organization and operation of the national parks, which are set apart for the public enjoyment and entertainment, as against those reservations specifically created for the conservation of the natural resources of timber and other national assets, and devoted strictly to utilitarian purposes, in the vastly greater areas, known as national forests. "The segregation of national-park areas necessarily involves the question of the preservation of nature as it exists, and the en oyment of park privileges requires the development of adequate and moderate-priced transportation and hotel facilities. In the national forests there must always be kept in mind as primary objects and purposes the utilitarian use of land, of water, and of timber, as contributing to the wealth of all the people." H.R.Rep. No. 700, 64th Cong., 1st Sess., 3 (1916). 19 In comparing the 1897 Organic Act with enabling legislation for national parks and particular national forests, and with the Act of Mar. 10, 1934, we of course do not intimate any views as to what, if any, water Congress reserved under the latter statutes. 20 It was the view of several of the Congressmen who spoke on the floor of the House that national forests were necessary "not to save the timber for future use so much as to preserve the water supply." 30 Cong.Rec. 1007 (1897) (Cong. Ellis). See also id., at 1399 (Cong. Loud). Congress has assured that the waters which flow through national forests are available for use by state appropriators by authorizing rights-of-way for ditches to carry the water to agricultural, domestic, mining, and milling uses. See Right-of-Way Permit Act of 1891, 43 U.S.C. § 946 et seq.; Right-of-Way Permit Act of 1901, 43 U.S.C. § 959; Forest Right-of-Way Act of 1905, 16 U.S.C. § 524 (repealed in part 1976). Congress has evidenced its continuing concern with enhancing the water supply for nonforest use by specifically authorizing the President to set aside and protect national forests lands needed as sources of municipal water supplies. Act of May 28, 1940, 54 Stat. 224, 16 U.S.C. § 552a (1976 ed.). See also Act of June 7, 1924, 16 U.S.C. § 570 (1976 ed.) (authorizing the purchase of private lands for inclusion in national forests where needed to protect "streams used for navigation or for irrigation"). 21 The United States does not argue that the Multiple-Use Sustained-Yield Act of 1960 reserved additional water for use on the national forests. Instead, the Government argues that the Act confirms that Congress always foresaw broad purposes for the national forests and authorized the Secretary of the Interior as early as 1897 to reserve water for recreational, aesthetic, and wildlife-preservation uses. Brief or United States 53-56. As the legislative history of the 1960 Act demonstrates, however, Congress believed that the 1897 Organic Administration Act only authorized the creation of national forests for two purposes timber preservation and enhancement of water supply—and intended, through the 1960 Act, to expand the purposes for which the national forests should be administered. See, e. g., H.R.Rep. No. 1551, 86th Cong., 2d Sess., 4 (1960), U.S.Code Cong. & Admin.News 1960, p. 2377. Even if the 1960 Act expanded the reserved water rights of the United States, of course, the rights would be subordinate to any appropriation of water under state law dating to before 1960. 22 We intimate no view as to whether Congress, in the 1960 Act, authorized the subsequent reservation of national forests out of public lands to which a broader doctrine of reserved water rights might apply. 23 As discussed earlier, the national forests were not to be "set aside for non-use," 30 Cong.Rec. 966 (1897) (Cong. McRae), but instead to be opened up for any economic use not inconsistent with the forests' primary purposes. Ibid. One use that Congress foresaw was "pasturage." Ibid. See also id., at 1006 (Cong. Ellis); id., at 1011 (Cong. De Vries). As this Court has previously recognized, however, grazing was merely one use to which the national forests could hopefully be put and would not be permitted where it might interfere with the specific purposes of the national forests including the securing of favorable conditions of water flow. Under the 1891 and 1897 Forest Acts, "any use of the reservation for grazing or other lawful purpose was required to be subject to the rules and regulations established by the Secretary of Agriculture. To pasture sheep and cattle on the reservation at will, and without restraint, might interfere seriously with the accomplishment of the purposes for which they were established. But a limited and regulated use for pasturage might not be inconsistent with the object sought to be attained by the statute." United States v. Grimaud, 220 U.S. 506, 515-516, 31 S.Ct. 480, 482, 55 L.Ed. 563 (1911). See also Light v. United States, 220 U.S. 523, 31 S.Ct. 485, 55 L.Ed. 570 (1911). 24 As noted earlier, the Organic Administration Act of 1897 specifically provided: "All waters within the boundaries of national forests may be used for domestic, mining, milling, or irrigation purposes, under the laws of the State wherein such national forests are situated, or under the laws of the United States and the rules and regulations established thereunder." 30 Stat. 36, as amended, 16 U.S.C. § 481 (1976 ed.) (emphasis added). The United States, seizing on the italicized wording, contends that Congress intended the United States to allocate water to certain private users—in this case, cattle ranchers—outside of the structure of state water law. Contemporaneous Acts of Congress, however, preclude this construction of § 481. In the same Act in which Congress first authorized the national forest system, Act of Mar. 3, 1891, § 18, 26 Stat. 1101, Congress provided for rights-of-way through the "public lands and reservations " for purposes of irrigation, "Provided, That no such right of way shall be so located as to interfere with the proper occupation by the Government of any such reservation, . . . and the privilege herein granted shall not be construed to interfere with the co trol of water for irrigation and other purposes under authority of the respective States or Territories." (Emphasis added.) Contemporaneous administrative regulations reflected that the "control of the flow and use of the water" on federal reservations was "a matter exclusively under State or Territorial control." Department of Interior Circular, 18 L.D. 168, 169-170 (1894). See also H. H. Sinclair, 18 L.D. 573, 574 (1894). Only a few months before Congress passed the Organic Administration Act of 1897, Congress reaffirmed the state-law policy of the 1891 Act. In the Act of Feb. 26, 1897, ch. 335, 29 Stat. 599, Congress authorized the improvement and occupation of reservoir sites on public lands, "Provided, That the charges for water coming in whole or part from reservoir sites used or occupied under the provisions of this Act shall always be subject to the control and regulation of the respective States and Territories in which such reservoirs are in whole or part situate." As we noted in California v. United States, 438 U.S., at 661, 98 S.Ct., at 2994, it "was clearly the opinion of a majority of the Congressmen who spoke on the bill . . . that [this proviso] was unnecessary except out of an excess of caution." It was their belief that, at least under the 1891 Act, the States had exclusive control of the distribution of water on public lands and reservations. Id., at 661-662, and n.16, 98 S.Ct., at 2994-2995 and n.16. Contemporaneous administrative regulations of the officials responsible for administering the national forests confirm that the States were to have control of the distribution of water from streams flowing through the forests. In 1908, for example, the Forest Service began a policy of charging for the use of water, based upon the length of ditches, acreage flooded, and use of advantageous locations, but emphasized that the "water itself is granted by the State, not by the United States." 1906 Report of the Forester to the Secretary of Agriculture, H. R.Doc. No. 6, 59th Cong., 2d Sess., p. 273 (1907). 1 I express no view as to the effect of the Multiple-Use Sustained-Yield Act of 1960, 74 Stat. 215, 16 U.S.C. § 528 et seq. (1976 ed.), on the United States' reserved water rights in national forests that were established either before or after that Act's passage. Although the Court purports to hold that passage of the 1960 Act did not have the effect of reserving any additional water in then-existing forests, see ante, at 713-715, this portion of its opinion appears to be dicta. As the Court concedes, "[t]he United States does not argue that the Multiple-Use Sustained-Yield Act of 1960 reserved additional water for use on the national forests." Ante, at 713 n.21. Likewise, the State argues only that "[n]o reserved rights for fish or wildlife can be implied in the Gila National Forest prior to the enactment of the Multiple-Use Sustained-Yield Act of June 12, 1960 . . . ." Brief for Respondent 44 (emphasis supplied); see also id., at 1 ("questions presented"). Indeed, the State has gone so far as to suggest that passage of the 1960 Act may well have expanded the United States' reserved water rights in the national forests, presumably with a priority date for the additional reserved rights of 1960. See Brief in Opposition 16-17. Read in context, the New Mexico Supreme Court's statement that the 1960 Act "does not have a retroactive effect nor can it broaden the purposes for which the Gila National Forest was established under the Organic Act of 1897," Mimbres Valley Irrigation Co. v. Salopek, 90 N.M. 410, 413, 564 P.2d 615, 618 (1977), quoted ante, at 713, appears to mean nothing more than that the 1960 Act did not give the United States additional reserved water rights with a priority date of before 1960 —a proposition with which I think all would agree. Cf. ante, at 713-714 n.21. But there never has been a question in this case as to whether the 1960 Act gave rise to additional reserved water rights with a priority date of 1960 or later in the Gila National Forest. 2 In fact, the Court appears to show some ambivalence as to whether, in its view of the 1897 Act, national forests are to be reserved for two purposes, or only one. See ante, at 711-713. 3 The Act cited is entitled "An act to set apart certain tracts of land in the State of California as forest reservations." 26 Stat. 650 (emphasis supplied). Yosemite National Park was not carved out of the forest reserved by the 1890 Act until 1905. See Act of Feb. 7, 1905, 33 Stat. 702-703, 16 U.S.C. § 46 (1976 ed.). A portion of the land reserved by the 1890 Act remained a forest reserve and was designated the Sierra National Forest. 4 The understanding that the forest includes the creatures that live there is confirmed by the modern view of the forest as an interdependent, dynamic community of plants and animals: "The forest community, then, consists of an assemblage of plants and animals living in an environment of air, soil, and water. Each of these organisms is interrelated either directly or indirectly with virtually every other organism in the community. The health and welfare of the organisms are dependent upon the factors of the environment surrounding them; and the environment surrounding them itself is conditioned to a considerable degree by the biotic community itself. In other words, the plants, the animals, and the environment—including the air, the soil, and the water—constitute a complex ecological system in which each factor and each individual is conditioned by, and in itself conditions, the other factors comprising the complex." S. Spurr, Forest Ecology 155 (1964). See also Gosz, Holmes, Likens, & Bormann, The Flow of Energy in a Forest Ecosystem, 238 Scientific American No. 3, pp. 92-102 (1978). Thus, it is doubtful whether the timber and watershed that the Court prizes so highly could flourish without a complement of wildlife. The recognition by modern science of this vital interdependence is by no means a new discovery. See J. Manwood, A Treatise and Discourse of the Laws of the Forrest 6 (1598). 5 No doubt it will be said that the waterflow necessary to maintain the watershed including the forest will be sufficient for the wildlife. This well may be true in most national forests and most situations. But the Court's opinion, as I read it, recognizes no reserved authority in the Federal Government to protect wildlife itself as a part of the forest, and therefore if and when the need for increased waterflow for this purpose arises the Federal Government would be powerless to act. Indeed, upstream appropriators could be allowed to divert so much water that survival of forest wildlife—including even the fish and other life in the streams—would be endangered. 6 It is rue that reservation of an instream flow might in some circumstances adversely affect appropriators upstream from the forest. There would be no inconsistency with the 1897 Act, however, for that Act manifestly was not intended to benefit upstream appropriators.

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439 U.S. 8 99 S.Ct. 49 58 L.Ed.2d 7 Bernard CAREY, State's Attorney of Cook County, Illinoisv.Ralph M. WYNN et al. Eugene F. DIAMOND v. Ralph M. WYNN et al. Nos. 78-229, 78-239. Oct. 16, 1978. PER CURIAM. 1 A three-judge District Court entered a declaratory judgment holding unconstitutional certain sections of the Illinois Abortion Act of 1975, Ill.Rev.Stat., ch. 38, § 81-21 et seq. (Supp.1976). Wynn v. Scott, 449 F.Supp. 1302 (N.D.Ill.1978). The District Court assumed that Illinois prosecutors would recognize and abide by the declaratory judgment and denied plaintiffs' request for injunctive relief. Id., at 1331. 2 The appeals from the declaratory judgment invalidating certain provisions of the statute are dismissed for want of jurisdiction. Title 28 U.S.C. § 1253, the jurisdictional statute under which these appeals are taken, does not authorize an appeal from the grant or denial of declaratory relief alone. Gerstein v. Coe, 417 U.S. 279, 94 S.Ct. 2246, 41 L.Ed.2d 68 (1974). The declaratory judgment is appealable to the Court of Appeals, and we are informed that appeals to that court have been taken. 3 Appeals dismissed. 4 Mr. Justice STEVENS took no part in the consideration or decision of these cases.

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439 U.S. 1 99 S.Ct. 46 58 L.Ed.2d 1 The LONG ISLAND RAIL ROAD COMPANYv.ABERDEEN & ROCKFISH RAILROAD COMPANY et al. No. 77-1515. Oct. 16, 1978. [Syllabus from 1 intentionally omitted] PER CURIAM. 1 Petitioner, the Long Island Rail Road Co., seeks a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit setting aside an order of the Interstate Commerce Commission. That judgment directed that proceeds collected by petitioner pursuant to an interim terminal surcharge be held in a separate trust fund pending determination of final rates by the Commission on remand. We stayed the trust fund portion of the court's order on March 6, 1978, and we now grant the petition for certiorari, limited to Question 1 presented by petitioner,1 and reverse the judgment of the Court of Appeals insofar as it impresses a trust on the proceeds from the interim terminal surcharge. 2 The Railroad Retirement Amendments of 1973 imposed increased taxes on railroads in order to fund additional retirement benefits for railroad employees. 87 Stat. 162, coupled with that action, Congress amended § 15a of the Interstate Commerce Act to permit railroads to offset the increased tax liability imposed by the Amendments by means of increases in general rate levels. § 201(4), 87 Stat. 166, 49 U.S.C. § 15a(6). Section 15a(6)(a) authorizes the Commission promptly to establish requirements for petitions for adjustment of interstate rates of common carriers based on increases in railroad retirement taxes. Such procedures are to be designed to "facilitate fair and expeditious action on any such petition." Section 15a(6)(b) directs the Commission to permit interim increases in the general level of interstate rates within 30 days of the filing of a proper petition, "[n]otwithstanding any other provision of law." The Commission can withhold its permission only if it finds that the requested increase is not "in an amount approximating that needed to offset increases in expenses" resulting from the Amendments. Finally, § 15a(6)(c) requires the Commission to commence hearings for the purpose of making final rate determinations within 60 days of the establishment of the interim rates. Such final rates are to be determined in accordance with the "standards and limitations applicable to ratemaking generally." If the final increases in rates are less than the interim increases, refunds must be made by the carrier, subject to such tariff provisions as the Commission deems sufficient. 3 Since the issue on which we grant certiorari does not relate directly to the rate increase proceedings, the briefest description of them will suffice. All railroads other than petitioner sought permission from the Commission to increase their rates in order to offset the increased taxes imposed by the Amendments. Petitioner, because of its unique revenue structure, sought permission to impose a surcharge for the use of its terminal facilities for the same purpose. The Commission allowed the railroads other than petitioner to increase their interim rates, but denied petitioner's request for an interim terminal surcharge. Increases in Freight Rates and Charges—1973, 346 I.C.C. 305 (1973). Petitioner sought review of the denial of its request by the Commission in a three-judge District Court, and that court set aside the relevant portions of the Commission's order and enjoined the Commission from refusing petitioner's terminal surcharge as an interim rate increase under § 15a(6)(b). Long Island R. Co. v. United States, 388 F.Supp. 943 (E.D.N.Y.1974). 4 No appeal was taken from this judgment and the Commission subsequently allowed petitioner to impose an interim terminal surcharge in the amount of 12.5%. Thereafter the Commission issued a report and order which approved petitioner's request for a permanent 12.5% terminal surcharge, and required all railroads to incorporate that surcharge into their tariffs to and from points on petitioner's lines. Increases in Freight Rates and Charges—1973, 350 I.C.C. 673 (1973). 5 Respondent railroads petitioned the Fifth Circuit to set aside the Commission's order. The Court of Appeals, for reasons which do not concern us here, set aside the order of the Commission allowing petitioner to impose the terminal surcharge and remanded for further proceedings to determine final rates. Aberdeen & Rockfish R. Co. v. United States, 565 F.2d 327, 333-335 (1977). Then, stating that "[i]t seems to us equitable," the court sua sponte "restore[d]" the 12.5% interim terminal surcharge that petitioner had been collecting prior to the Commission's final order, but directed that the proceeds be kept "in a separate trust fund . . . subject to further just and equitable orders of the Interstate Commerce Commission." Id., at 335. 6 We agree with petitioner and the United States that the Court of Appeals' direction to hold proceeds from the interim terminal surcharge in a separate trust fund, pending determination of final rates by the Commission is contrary both to the earlier holding of the three-judge court and to Congress' intent in adopting the Amendments. The interim terminal surcharge approved by the three-judge court clearly was meant to remain in effect until a permanent rate was approved by the Commission. See Long Island R. Co. v. United States, supra, 388 F.Supp. at 947. Because of the Court of Appeals' decision setting aside the Commission's order, there has as yet been no determination of final rates by the Commission. The Court of Appeals' order explicitly recognizes as much. Aberdeen & Rockfish R. Co. v. United States, supra, at 334. We also agree that petitioner could have continued to collect the interim terminal surcharge whether or not the Court of Appeals had explicitly authorized it to do so. Thus, far from maintaining the relative positions of the parties pending final order of the Commission, normally considered the "status quo," the Court of Appeals' imposition of the trust fund requirement significantly altered those positions. 7 Such an alteration is at odds with the purpose of § 15a(6)(b). The entire thrust of § 15a(6)(b) is to provide an expeditious method of allowing higher rates in order to minimize the effect that increased railroad retirement taxes would have on the railroads' financial conditions. At the time of the adoption of the Amendments, Congress was acutely aware of the deteriorating financial condition of the Nation's railroads and the drain which the increased tax liabilities would have on their already dwindling resources. S.Rep.No.93-221, pp. 2-4 (1973), U.S.Code Cong. & Admin.News 1973, p. 1612. Congress also recognized that the Commission's normal ratemaking processes would not be responsive to the railroads' needs to recover immediately their increased retirement benefit contributions.2 The delays experienced in approving the final rates have shown the legitimacy of Congress' concerns. 8 Section 15a(6)(b) was enacted to ensure that the much-needed funds would get to the railroads as soon as possible: once the interim rates were filed, they could not be suspended until final rate determinations by the Commission. While the Commission normally has the power under § 15(7) of the Interstate Commerce Act to suspend rates for a period not to exceed seven months, Congress deprived the Commission of even that limited authority in § 15a(6)(b), which begins with the words: "Notwithstanding any other provision of law." The Conference Report on the Amendments to the Interstate Commerce Act states: 9 "The Commission could withhold permission to file tariffs if it found that the proposed increase clearly exceeded the amount needed to cover the increases in costs, but otherwise once the tariffs were filed the Commission would have no authority to suspend them pending final determination." Joint Explanatory Statement of the Committee of the Conference, H.R.Rep.No.93-319, p. 12 (1973) (emphasis added), U.S.Code Cong. & Admin.News 1973, pp. 1658, 1661. 10 By impressing the trust on proceeds from these interim charges made by petitioner, the Court of Appeals has exercised authority which Congress clearly did not wish to repose even in the Commission. We have held that where Congress has vested the Commission with authority to suspend rates pending final determination of their lawfulness, that power may not be exercised by a court. Arrow Transp. Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963); see Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 820, 93 S.Ct. 2367, 2381, 37 L.Ed.2d 350 (1973) (plurality opinion); id., at 828-829, 93 S.Ct. at 2385-2386 (WHITE, J., concurring in part and dissenting in part); United States v. SCRAP, 412 U.S. 669, 691, 93 S.Ct. 2405, 2417, 37 L.Ed.2d 254 (1973). We think it follows a fortiori from these decisions that where Congress has denied authority to the Commission to suspend interim rates, as it has here, a reviewing court may not exercise such power, absent a declaration of unlawfulness by the Commission. See Arrow Transp. Co. v. Southern R. Co., supra, 372 U.S. at 667, 83 S.Ct. at 988 n. 14; Board of R. Comm'rs v. Great Northern R. Co., 281 U.S. 412, 429-430, 50 S.Ct. 391, 396, 74 L.Ed. 936 (1930). Congress provided a refund mechanism in § 15a(6)(c) in the event that the final rates approved by the Commission are less than the interim rates. Congress undoubtedly was satisfied that this procedure was adequate to protect the interests of the parties affected by the terminal surcharge, and respondent railroads have advanced no reasons for concluding otherwise. 11 In Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade, supra, the plurality recognized a limited power in a reviewing court to suspend rates pending review of a final order of the Commission. See Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942). That conclusion was based on the fact that there was no "provision in the relevant statutesdepriving federal courts of their general equitable power to preserve the status quo to avoid irreparable harm pending review." Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade, supra, 412 U.S. at 820, 93 S.Ct. at 2381. The plurality also noted that subsequent legislation might "affect the relation between court and agency and so the propriety of injunctive relief." 412 U.S., at 823, 93 S.Ct., at 2383 n. 16. In the limited context of interim rate increases under § 15a(6)(b), we think the Amendments are "subsequent legislation" that evidences a clear purpose to oust any equitable power that a reviewing court might otherwise possess to disturb those interim rates pending determination of final rates by the Commission. See Arrow Transp. Co. v. Southern R. Co., supra, at 671 n. 22, 83 S.Ct., at 991 n. 22. 12 The petition for certiorari accordingly is granted, limited to the question set forth in footnote 1, supra. The judgment of the Court of Appeals is reversed insofar as it requires petitioner to keep the proceeds collected from its interim terminal surcharge in a separate trust, and the case is remanded for proceedings consistent with this opinion. 13 So ordered. 1 "Did the Court of Appeals thwart the purpose of the Railroad Retirement Amendments and frustrate the final judgment of a three-judge court when it deprived the LIRR of the immediate use of its interim terminal surcharge?" Pet. for Cert. 2. 2 S.Rep.No.93-221, p. 3 (1973); H.R.Rep.No.93-204, pp. 7-8 (1973). The agreement between representatives of railroad labor and management to support increases in railroad retirement taxes conditioned such support on the simultaneous passage of legislation to modify the Commission's existing ratemaking procedures to permit prompt rate increases. S.Rep.No.93-221, pp. 2, 7 (App. A).

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439 U.S. 9 99 S.Ct. 299 58 L.Ed.2d 202 NATIONAL LABOR RELATIONS BOARDv.BAYLOR UNIVERSITY MEDICAL CENTER No. 78-80 Supreme Court of the United States October 30, 1978 On petition for writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit. Oct. 30, 1978. PER CURIAM. 1 Upon a complaint issued by the National Labor Relations Board and on the basis of a substantial record of evidence before a Hearing Examiner, the Board held that respondent's no-solicitation rule with respect to corridors and the cafeteria of the respondent hospital was overly broad and an unfair labor practice in violation of § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1). 2 The Court of Appeals for the District of Columbia Circuit refused to enforce the Board's order. U.S.App.D.C., 578 F.2d 351 (1978). In reaching this conclusion, the Court of Appeals dealt with corridors and the cafeteria separately, assigning different reasons for its holding with respect to each. As to corridors, the court simply concluded that there was no substantial evidence supporting the Board's conclusion that the corridors were not entitled to the same protection accorded other areas devoted essentially to patient care. 3 The court's holding with respect to the cafeteria was based, however, on a legal judgment that no valid distinction can be made between a hospital cafeteria and cafeterias and restaurants that operate independently or in department stores. In the latter type of cases, the Board uniformly has held that the presumption in favor of the right to solicit on nonwork time in nonwork areas, established by Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), is inapplicable.* The Court of Appeals therefore applied the general rule applicable to commercial cafeterias and restaurants to the hospital cafeteria. 4 In Beth Israel Hospital v. NLRB, 437 U.S. 483, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978), the Court concluded that the Republic Aviation presumption did apply to a hospital cafeteria maintained and operated primarily for employees and rarely used by patients or their families. The corridors of the hospital serving patients' rooms, operating and treatment rooms, and other areas used by patients and their families were neither involved nor considered by the Court in Beth Israel. 5 As the Court's decision in Beth Israel is relevant to the cafeteria issue in this case, we grant the petition for a writ of certiorari, vacate the judgment, and remand the case to the Court of Appeals for reconsideration in light of Beth Israel only on that issue. Insofar as the petition for certiorari seeks review of the corridor issue, the petition is denied. 6 Mr. Justice BRENNAN, with whom Mr. Justice WHITE and Mr. Justice MARSHALL, join, dissenting in part. 7 I dissent from the decision to limit the remand in this case to the cafeteria issue. 8 The NLRB sought enforcement of an order rescinding the operation of Baylor's no-solicitation rule in inter alia, the hospital's cafeteria and corridors. The Board's order rested on its decision in St. John's Hospital and School of Nursing, Inc., 222 N.L.R.B. 1150 (1976), disapproving "the prohibition [of solicitation] in areas other than immediate patient-care areas . . . absent a showing that disruption to patient care would necessarily result if solicitation and distribution were permitted in those areas," Beth Israel Hospital v. NLRB, 437 U.S. 483, 495, 98 S.Ct. 2463, 2471, 57 L.Ed.2d 370 (1978). In refusing enforcement, the Court of Appeals determined that St. John's was inconsistent with congressional intent to minimize disruption in hospitals, and that because in hospital matters the Board was also acting outside of its area of expertise, its decision was "entitled to little of the deference traditionally accorded to NLRB actions," U.S.App.D.C. ---, ----, 578 F.2d 351, 353 (1978). These bases for legal determination of the validity of no-solicitation rules, which the Court of Appeals then applied to the specific problems of the cafeteria and corridors, are precisely the bases which Beth Israel Hospital v. NLRB, supra, rejected as erroneous. 9 Beth Israel refused to accept petitioner's claim that the Board's St. John's opinion constituted an impermissible construction of the NLRB's policies as applied to the health-care industry by the 1974 amendments. Instead, the Court held that 10 "the Board's general approach of requiring health-care facilities to permit employee solicitation and distribution during nonworking time in nonworking areas, where the facility has not justified the prohibitions as necessary to avoid disruption of health-care operations or disturbance of patients, is consistent with the Act." 437 U.S., at 507, 98 S.Ct., at 2477. 11 Beth Israel did, of course, recognize the special considerations appropriate to labor disputes in hospital settings, and reminded the NLRB that it bears 12 " 'a heavy continuing responsibility to review its policies concerning organizational activities in various parts of hospitals. Hospitals carry on a public function of the utmost seriousness and importance. They give rise to unique considerations that do not apply in the industrial settings with which the Board is more familiar. The Board should stand ready to revise its rulings if future experience demonstrates that the well-being of patients is in fact jeopardized.' " Id., at 508, 98 S.Ct., at 2477, quoting NLRB v. Beth Israel Hospital, 554 F.2d 477, 481 (C.A.1 1977). 13 Nonetheless, Beth Israel reaffirmed the Court's oft-expressed view that the function of striking the balance between the conflicting interests of employers and employees is a responsibility which Congress committed primarily to the Board, subject to limited judicial review, NLRB v. Truck Drivers, 353 U.S. 87, 96, 77 S.Ct. 643, 1 L.Ed.2d 676 (1957), and held that in the area of hospital labor relations the decisions of the Board are entitled to the traditional deference. Beth Israel Hospital, 437 U.S., at 500-501, 98 S.Ct., at 2473-2474. 14 While it is true that the facts of Beth Israel involved only a hospital cafeteria, nowhere did the opinion hint that its analysis was to apply only within a cafeteria's four walls.* Indeed, after approving the Board's general principle of requiring hospitals to justify their prohibitions of solicitation, the Court in its very next sentence stated that "with respect tothe application of that principle to petitioner's cafeteria, the Board was appropriately sensitive to the importance of petitioner's interest . . . ." Id., at 507, 98 S.Ct., at 2477 (emphasis added). Beth Israel, then, is clearly a case of general import, with application to disputes over the validity of rules inhibiting solicitation wherever applied within the hospital. 15 I, of course, intimate no view upon the merits of the corridors issue. It may well be that on the facts of the case the hospital has justified the prohibition of solicitation as necessary to avoid disruption of health-care operations or disturbance of patients. It is our role, however, to insure that the proper legal standard is applied to the facts. For that reason, I would follow our usual practice of granting the petition, vacating the judgment, and remanding the case without limitation for reconsideration in light of Beth Israel. 16 Opinion after remand, 193 U.S.App.D.C. 136, 593 F.2d 1290. * In the present case, the Board had applied the Republic Aviation presumption to all areas of the hospital deemed by it not devoted "strictly [to] patient care," in accord with its decision in St. John's Hospital and School of Nursing, Inc., 222 N.L.R.B. 1150 (1976). The Board held that the corridors throughout the hospital and the cafeteria were noncare areas. * There is one element of Beth Israel, identified in the majority opinion in this case, which is only relevant to the cafeteria issue—the holding that the NLRB can validly distinguish between hospital cafeterias and independent restaurants. But the fact that the Court of Appeals' decision runs afoul of this additional aspect of Beth Israel hardly makes its other shortcomings, which are equally applicable to both disputed areas of the building, irrelevant.

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439 U.S. 14 99 S.Ct. 235 58 L.Ed.2d 207 Virgil Delano PRESNELL, Jr.v.State of GEORGIA. No. 77-6885. Nov. 6, 1978. PER CURIAM. 1 Petitioner was indicted and found guilty by a jury of three capital offenses—rape, kidnaping with bodily injury, and murder with malice aforethought. Under Georgia law, a jury may impose the death penalty if it finds that the offender committed a capital felony under at least 1 of 10 statutorily enumerated aggravating circumstances. Ga.Code § 27-2534.1(b) (1975). The only such circumstance relevant here is that 2 "[t]he [capital] offense . . . was committed while the offender was engaged in the commission of another capital felony . . . ." § 27-2534.1(b)(2). 3 At the penalty phase of petitioner's trial, the jury was instructed that it could impose the death penalty (1) for rape if that offense was committed while petitioner was engaged in the commission of murder, (2) for kidnaping with bodily injury if that offense was committed while petitioner was engaged in the commission of rape, or (3) for murder if that offense was committed while petitioner was engaged in the commission of "kidnapping with bodily harm, aggravated sodomy." The jury found that all three offenses were committed during the commission of the specified additional offenses, and it imposed three death sentences on petitioner. 4 On appeal, the Supreme Court of Georgia held that the first two death sentences imposed by the jury could not stand. 241 Ga. 49, 52, 64, 243 S.E.2d 496, 501, 508 (1978). Both sentences depended upon petitioner's having committed forcible rape, and the court determined that the jury had not properly convicted petitioner of that offense.1 5 In addition, the Supreme Court of Georgia held that the State could not rely upon sodomy as constituting the bodily injury associated with the kidnaping.2 Nonetheless, despite the fact that the jury had been instructed that the death penalty for murder depended upon a finding that it was committed while petitioner was engaged in "kidnapping with bodily harm, aggravated sodomy " (emphasis added), the Georgia Supreme Court upheld the third death penalty imposed by the jury. It did so on the theory that, despite the lack of a jury finding of forcible rape, evidence in the record supported the conclusion that petitioner was guilty of that offense, which in turn established the element of bodily harm necessary to make the kidnaping a sufficiently aggravating circumstance to justify the death sentence. 6 In Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948), petitioners were convicted at trial of one offense but their convictions were affirmed by the Supreme Court of Arkansas on the basis of evidence in the record indicating that they had committed another offense on which the jury had not been instructed. In reversing the convictions, Mr. Justice Black wrote for a unanimous Court: 7 "It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made. . . . "To conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court." Id., at 201-202, 68 S.Ct. at 517.3 8 These fundamental principles of procedural fairness apply with no less force at the penalty phase of a trial in a capital case than they do in the guilt-determining phase of any criminal trial. Cf. Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). In light of these principles, the death sentence for the crime of murder with malice aforethought cannot stand. 9 Insofar as the petition for certiorari challenges the conviction for kidnaping with bodily injury4 and the imposition of the death sentence, it is granted along with petitioner's motion to proceed in forma pauperis. The judgment of the Supreme Court of Georgia affirming the conviction for kidnaping with bodily injury and the death sentence for murder is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Insofar as the petition challenges the convictions for murder, kidnaping, and statutory rape, it is denied. 10 It is so ordered. 11 Mr. Justice BRENNAN, concurring. 12 I join the opinion of the Court. For the reasons stated in my dissenting opinion in Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2950, 49 L.Ed.2d 859 (1976), I would in addition hold that the death penalty violates the Eighth and Fourteenth Amendments and that therefore petitioner may not be resentenced to death in any proceedings following remand from this Court. 13 Mr. Justice MARSHALL, concurring. 14 While I join the opinion of the Court, I again emphasize my opinion that the death penalty in any proceeding is unconstitutional. 15 Mr. Justice POWELL, with whom The Chief Justice and Mr. Justice REHNQUIST join, dissenting. 16 If, as the per curiam opinion for the Court states, the Supreme Court of Georgia had found petitioner guilty of kidnaping with bodily injury in spite of a failure of the jury to return a proper guilty verdict for that crime, I would join this decision. My review of the record and the opinion of the Georgia court, however, has convinced me that petitioner's conviction for that crime might well have been upheld on the basis of the jury's proper verdict. Because the opinion of the Supreme Court of Georgia is fundamentally ambiguous on this point, I would remand the case for clarification rather than vacating petitioner's sentence of death. Accordingly, I dissent. 17 Petitioner was indicted for five offenses: murder of Lori Ann Smith; kidnaping of Lori Ann Smith; rape of Andrea Furlong; aggravated sodomy of Andrea Furlong; and the kidnaping of Andrea Furlong "with bodily injury." The aggravated sodomy charge was not submitted to the jury, as the aggravated sodomy of Andrea was alleged to have supplied the bodily injury element of her kidnaping. The jury returned guilty verdicts on all four counts. It sentenced petitioner to death on three of the counts: (i) the murder of Lori Ann, with the kidnaping of Andrea with bodily injury as a specified aggravating circumstance; (ii) the rape of Andrea, with the murder of Lori Ann as a specified aggravating circumstance; and (iii) the kidnaping of Andrea with bodily injury, with the rape of Andrea as a specified aggravating circumstance. Petitioner also was sentenced to a term of years for the kidnaping of Lori Ann. 18 On appeal, the Georgia court vacated the death sentences for the rape of Andrea and the kidnaping of Andrea with bodily injury. With respect to the rape of Andrea, the court noted that the jury was instructed on both forcible and statutory rape and returned a verdict that did not distinguish between the two crimes. As only forcible rape was a capital crime under Georgia law, petitioner had to be resentenced as if he had been convicted only of statutory rape. With respect to the kidnaping of Andrea, the court did not indicate whether it vacated the sentence because it believed our recent opinion in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), so mandated, or because the specified aggravating circumstance for this offense, the rape of Andrea, also was tainted by the jury's failure to distinguish between forcible and statutory rape.1 The court did not disturb, however, the conviction for the underlying offense of kidnaping with bodily injury. 19 The Georgia court did affirm the sentence of death for the murder of Lori Ann, the kidnaping of Andrea with bodily injury being the aggravating circumstance. The validity of that kidnapping conviction is the matter in issue here. According to the Court, the court below ruled that even though as a matter of state law the aggravated sodomy of Andrea could not provide the bodily-injury element of the kidnaping, that element was supplied by the evidence of forcible rape. The Court then holds that the Georgia court could not constitutionally rely on evidence of forcible rape as bodily injury, because the jury may have convicted petitioner only of statutory rape, which requires no finding of force. Statutory rape would therefore be insufficient to provide the bodily-injury element associated with the kidnaping, which in turn would render that offense insufficient as an aggravating circumstance for the purpose of imposing the death penalty.2 20 Although the opinion of the Georgia court is not a model of clarity, a careful reading of the decision persuades me that the Court has misconstrued a critical part of what was held below. The Court is correct that the Georgia Supreme Court was not entitled to rely upon the evidence in the record of forcible rape to supply the bodily-injury component of the kidnaping.3 But it is incorrect to say that the court below necessarily rejected the jury's unambiguous finding of aggravated sodomy4 as establishing the bodily injury that converted simple kidnaping into a capital offense under Georgia law. On this point the opinion of the state court is hopelessly obscure. As the Court observes, portions of the opinion may be read as indicating that aggravated sodomy, a crime that has as an element a forcible assault upon the victim, cannot constitute "bodily injury" with respect to the crime of kidnaping with bodily injury. Ante, at 15 n. 2. An equally plausible reading of the opinion, however, is that once the court determined that the evidence of harm inflicted during the rape established bodily injury, it did not think it necessary to decide the question whether aggravated sodomy, considered alone, also could establish that element. Certainly that question was not necessarily decided by the court, as it believed that bodily injury was proved, at least in part, by the evidence of forcible rape.5 Moreover, the trial court expressly held that the sodomy did satisfy the bodily injury requirement, and the Georgia Supreme Court did not reverse that ruling.6 21 The validity of petitioner's conviction for kidnaping with bodily injury, and the use of that conviction as an aggravating circumstance for the purpose of sentencing, cannot be determined without resolution of this state-law question. If the court below meant to rule that as a matter of Georgia law evidence of forcible sodomy does not constitute proof of "bodily injury" for the purposes of the kidnaping offense, although proof of forcible rape would suffice, then the death sentence must be vacated and the conviction for kidnaping with bodily injury must be reversed. A criminal defendant is "entitled to have the validity of [his] convictio[n] appraised on consideration of the case as it was tried and as the issues were determined in the trial court." Cole v. Arkansas, 333 U.S. 196, 202, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948). Here, the jury was permitted to find petitioner guilty of kidnaping with bodily injury if he committed aggravated sodomy during the offense. The jury also was allowed to specify this kidnaping as an aggravating circumstance of the murder if it coincided with aggravated sodomy. If it was an error of state law so to instruct the jury, the court may not redeem the mistake by ruling that the jury could have believed other evidence indicating petitioner had injured his victim in other ways. Cf. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). This is particularly true here, as the Georgia court ruled that the jury cannot be deemed to have returned a guilty verdict on the forcible rape charge itself. 22 If, however, the aggravated sodomy, accomplished by force, did satisfy the bodily-injury element under state law, it would appear that the jury properly convicted petitioner of that crime and was permitted to use that conviction as an aggravating circumstance with respect to the murder conviction. Because the question is substantial and was not resolved by the court below, I would remand the case for clarification.7 1 Petitioner was indicted and found guilty by the jury of "rape." Because the jury had been instructed both on forcible and statutory rape, but did not in its verdict specify which offense it had found, the Supreme Court of Georgia interpreted the "rape" conviction as one for statutory rape—an offense that includes no element of bodily harm. Moreover, there was no jury finding of forcible rape at the penalty phase of the trial. 2 Although the Georgia Supreme Court did not explain this holding, the holding itself is unambiguous. First, the Georgia court unequivocally stated: "The only evidence of bodily injury, to support the crime of the kidnapping with bodily injury of the older child, is the bodily injury which resulted from the rape of that child." 241 Ga., at 52, 243 S.E.2d, at 501. Second, after concluding that the evidence of forcible rape could supply the bodily injury element of the crime of kidnaping, the Georgia court added: "The state's attempted reliance upon sodomy as constituting the bodily injury associated with the kidnapping of the older child is not ground for retrial." Ibid., 243 S.E.2d, at 502. 3 In the present case, when the Supreme Court of Georgia ruled on petitioner's motion for rehearing it recognized that, prior to its opinion in the case, petitioner had no notice, either in the indictment, in the instructions to the jury, or elsewhere, that the State was relying on the rape to establish the bodily injury component of aggravated kidnaping: "On motion for rehearing the defendant urges, among other things, that he was not on notice that evidence as to the older child's injuries which resulted from her being raped would provide the evidence of her bodily injury to convict him of her kidnaping with bodily injury. He was on notice, however, that he was charged with forcible rape as well as kidnapping with bodily injury of the older child. "Motion for rehearing denied." Id., at 67, 243 S.E.2d, at 510. 4 Because the jury convicted petitioner of the same offense that it relied upon to find the statutory aggravating circumstances necessary to impose the death penalty—kidnaping with bodily injury, to wit, aggravated sodomy —the Georgia Supreme Court's affirmance of that conviction on the basis of the bodily injury resulting from the rape is also unconstitutional under Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948). Accordingly, under the dictates of that case, id., 333 U.S. at 200, 202, 68 S.Ct. 514, the conviction must be reversed. 1 As the Court observes, ante, at 14, Ga.Code § 27-2534.1(b)(2) (1975) limits those crimes whose commission in the course of a homicide will sustain a death sentence to certain enumerated felonies. Statutory rape is not such an offense, although forcible rape is. 2 See n. 1, supra. 3 The court below actually identified two problems with the rape conviction, a state-law double jeopardy violation as well as the ambiguity of the jury verdict discussed in the text. This is made clear by a close reading of the opinion. It begins by observing: "The only evidence of bodily injury, to support the crime of the kidnapping with bodily injury of the older child, is the bodily injury which resulted from the rape of that child. Thus, the convictions for both kidnapping with bodily injury and forcible rape cannot be upheld." 241 Ga. 49, 52, 243 S.E.2d 496, 501 (1978). This Court apparently believes that "both" convictions could not be upheld because of the failure of the jury to distinguish in both instances between forcible and statutory rape. Immediately after this sentence, however, the Georgia court cited its decision in State v. Estevez, 232 Ga. 316, 206 S.E.2d 475 (1974). That decision involves the protection against double jeopardy provided by the Georgia Constitution, a protection of substantially broader scope than that provided by the Federal Constitution. Under the Georgia Constitution, a defendant cannot be convicted and punished for separate crimes arising from the same criminal conduct. Ibid. It is plain that the Georgia court was concerned that separate punishments for both the kidnaping of Andrea with bodily harm and the forcible rape would violate this protection in a situation where rape was the only bodily harm involved. It had ruled that double jeopardy applied to similar facts in Allen v. State, 233 Ga. 200, 203, 210 S.E.2d 680, 682 (1974). When the Georgia court stated that "both" convictions could not stand, it therefore meant not that each was invalid, but that petitioner could be punished only for one. It is in this context that the court determined that petitioner had not been punished for forcible rape and, "[a]s a consequence of the foregoing, there is evidence of bodily injury, not a part of the crime of statutory rape, to support the crime of kidnapping with bodily injury." 241 Ga., at 52, 243 S.E.2d, at 502. 4 The trial court instructed the jury that it could convict petitioner of kidnaping with bodily injury only if it found that petitioner had committed aggravated sodomy upon Andrea's person. To make this finding, the jury was required to find beyond a reasonable doubt that petitioner in the course of kidnaping Andrea "performed a sexual act involving his sexual organ with the mouth of Andrea Furlong, forcibly and against her will." Unlike the charge on forcible rape, the jury was not given the option of convicting petitioner for this offense on the ground that Andrea was under the age of consent. Accordingly, the jury could have convicted petitioner on this count only if it found he had committed an act of force on Andrea's person. Similarly, during the sentencing stage the jury was instructed that in order to impose death for the murder of Lori Ann, it had to find that petitioner was "engaged in the commission of another capital felony, to wit: The kidnapping with bodily harm, aggravated sodomy, of Andrea Furlong." 5 There is no apparent reason why aggravated sodomy should not satisfy the bodily-injury requirement. Both forcible rape and aggravated sodomy require the use of force as elements of the offense. The only distinction between the two crimes under Georgia law relates to the part of the body violated. Compare Ga.Code § 26-2001 with Ga.Code § 26-2002 (1975). As both crimes involve a violent interference with the person, each logically would supply the element of bodily injury required by the kidnaping offense. 6 Counsel for petitioner moved for acquittal on the kidnaping count, arguing that aggravated sodomy did not constitute bodily injury for purposes of the kidnaping offense. The trial court was specific in its ground for rejecting this motion: "I will give you a precise ruling so that you will have the advantage of your motion. I will hold specifically that the act of aggravated sodomy committed upon her person was such harm that aggravated the kidnapping and made it a higher crime. I hold that it does not require, the law does not require, a physical bruising injury or battery, but that the act of sodomy itself is as vile and as gross as anything can be as an act of harm against a ten year old child, and I don't have any problem with it." Record 990-991. Nowhere in its opinion does the Georgia court state that this view of the law was incorrect. 7 The Court's opinion, as I read it, does not preclude resentencing of petitioner for the murder and kidnaping-with-bodily-harm convictions, if the court below does determine the jury verdicts with respect to those counts to have been proper.

01

439 U.S. 24 99 S.Ct. 295 58 L.Ed.2d 216 BOARD OF TRUSTEES OF KEENE STATE COLLEGE et al.v.Christine M. SWEENEY. No. 77-1792. Nov. 13, 1978. PER CURIAM. 1 The petition for a writ of certiorari is granted. In Furnco Construction Co. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978), we stated that "[t]o dispel the adverse inference from a prima facie showing under McDonnell Douglas the employer need only 'articulate some legitimate, nondiscriminatory reason for the employee's rejection.' " Id., at 578, 98 S.Ct., at 2950, quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). We stated in McDonnell Douglas that the plaintiff "must . . . be afforded a fair opportunity to show that [the employer's] stated reason for [the plaintiff's] rejection was in fact pretext." Id., at 804, 93 S.Ct., at 1825. The Court of Appeals in the present case, however, referring to McDonnell Douglas, stated that "in requiring the defendant to prove absence of discriminatory motive, the Supreme Court placed the burden squarely on the party with the greater access to such evidence." 569 F.2d 169, 177 (CA1 1978) (emphasis added).1 2 While words such as "articulate," "show," and "prove," may have more or less similar meanings depending upon the context in which they are used, we think that there is a significant distinction between merely "articulat[ing] some legitimate, nondiscriminatory reason" and "prov[ing] absence of discriminatory motive." By reaffirming and emphasizing the McDonnell Douglas analysis in Furnco Construction Co. v. Waters, supra, we made it clear that the former will suffice to meet the employee's prima facie case of discrimination. Because the Court of Appeals appears to have imposed a heavier burden on the employer than Furnco warrants, its judgment is vacated and the case is remanded for reconsideration in the light of Furnco, supra, at 578, 98 S.Ct., at 2950.2 3 It is so ordered. 4 Mr. Justice STEVENS, with whom Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice MARSHALL join, dissenting. 5 Whenever this Court grants certiorari and vacates a court of appeals judgment in order to allow that court to reconsider its decision in the light of an intervening decision of this Court, the Court is acting on the merits. Such action always imposes an additional burden on circuit judges who—more than any other segment of the federal judiciary—are struggling desperately to keep afloat in the flood of federal litigation. For that reason, such action should not be taken unless the intervening decision has shed new light on the law which, if it had been available at the time of the court of appeals' decision, might have led to a different result. 6 In this case, the Court's action implies that the recent opinion in Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957, made some change in the law as explained in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. When I joined the Furnco opinion, I detected no such change and I am still unable to discern one. In both cases, the Court clearly stated that when the complainant in a Title VII trial establishes a prima facie case of discrimination, "the burden which shifts to the employer is merely that of proving that he based his employment decision on a legitimate consideration, and not an illegitimate one such as race."1 7 The Court of Appeals' statement of the parties' respective burdens in this case is wholly faithful to this Court's teachings in McDonnell Douglas. The Court of Appeals here stated: 8 "As we understand those cases [McDonnell Douglas and Teamsters v. United States, 431 U.S. 324], a plaintiff bears the initial burden of presenting evidence sufficient to establish a prima facie case of discrimination. The burden then shifts to the defendant to rebut the prima facie case by showing that a legitimate, nondiscriminatory reason accounted for its actions. If the rebuttal is successful, the plaintiff must show that the stated reason was a mere pretext for discrimination. The ultimate burden of persuasion on the issue of discrimination remains with the plaintiff, who must convince the court by a preponderance of the evidence that he or she has been the victim of discrimination." 569 F.2d 169, 177 (CA1 1978) (emphasis added). 9 This statement by the Court of Appeals virtually parrots this Court's statements in McDonnell Douglas and Furnco. Nonetheless, this Court vacates the judgment on the ground that "the Court of Appeals appears to have imposed a heavier burden on the employer than Furnco warrants." Ante, at 25. As its sole basis for this conclusion, this Court relies on a distinction drawn for the first time in this case "between merely 'articulat[ing] some legitimate, nondiscriminatory reason' and 'prov[ing] absence of discriminatory motive.' " Ante, at 25.2 This novel distinction has two parts, both of which are illusory and were unequivocally rejected in Furnco itself. 10 First is a purported difference between "articulating" and "proving" a legitimate motivation. Second is the difference between affirming a nondiscriminatory motive and negating a discriminatory motive. 11 With respect to the first point, it must be noted that it was this Court in Furnco, not the Court of Appeals in this case, that stated that the employer's burden was to "prov[e] that he based his employment decision on a legitimate consideration."3 Indeed, in the paragraph of this Court's opinion in Furnco cited earlier, the words "prove" and "articulate" were used interchangeably,4 and properly so. For they were descriptive of the defendant's burden in a trial context. In litigation the only way a defendant can "articulate" the reason for his action is by adducing evidence that explains what he has done; when an executive takes the witness stand to "articulate" his reason, the litigant for whom he speaks is thereby proving those reasons. If the Court intends to authorize a method of articulating a factual defense without proof, surely the Court should explain what it is. 12 The second part of the Court's imaginative distinction is also rejected by Furnco. When an employer shows that a legitimate nondiscriminatory reason accounts for his action, he is simultaneously demonstrating that the action was not motivated by an illegitimate factor such as race. Furnco explicitly recognized this equivalence when it defined the burden on the employer as "that of proving that he based his employment decision on a legitimate consideration, and not an illegitimate one such as race."5 Whether the issue is phrased in the affirmative or in the negative, the ultimate question involves an identification of the real reason for the employment decision. On that question—as all of these cases make perfectly clear—it is only the burden of producing evidence of legitimate nondiscriminatory reasons which shifts to the employer; the burden of persuasion, as the Court of Appeals properly recognized, remains with the plaintiff. 13 In short, there is no legitimate basis for concluding that the Court of Appeals erred in this case—either with or without the benefit of Furnco. The Court's action today therefore needlessly imposes additional work on circuit judges who have already considered and correctly applied the rule the Court directs them to reconsider and reapply. 1 While the Court of Appeals did make the statement that the dissent quotes, post, at 27, it also made the statement quoted in the text above. These statements simply contradict one another. The statement quoted in the text above would make entirely superfluous the third step in the Furnco-McDonnell Douglas analysis, since it would place on the employer at the second stage the burden of showing that the reason for rejection was not a pretext, rather than requiring contrary proof from the employee as a part of the third step. We think our remand is warranted both because we are unable to determine which of the two conflicting standards the Court of Appeals applied in reviewing the decision of the District Court in this case, and because of the implication in its opinion that there is no difference between the two standards. We, of course, intimate no view as to the correct result if the proper test is applied in this case. 2 We quite agree with the dissent that under Furnco and McDonnell Douglas the employer's burden is satisfied if he simply "explains what he has done" or "produc[es] evidence of legitimate nondiscriminatory reasons." Post, at 28-29. But petitioners clearly did produce evidence to support their legitimate nondiscriminatory explanation for refusing to promote respondent during the years in question. See 569 F.2d, at 172-173, 178; App. to Pet. for Cert. B-2 to B-24. Nonetheless, the Court of Appeals held that petitioners had not met their burden because the proffered legitimate explanation did not "rebut" or "disprove" respondent's prima facie case or "prove absence of nondiscriminatory motive." 569 F.2d, at 177-179; see App. to Pet. for Cert. B-25. This holding by the Court of Appeals is further support for our belief that the court appears to have imposed a heavier burden on the employer than Furnco, and the dissent here, require. 1 This language is quoted from the following paragraph in Furnco : "When the prima facie case is understood in the light of the opinion in McDonnell Douglas, it is apparent that the burden which shifts to the employer is merely that of proving that he based his employment decision on a legitimate consideration, and not an illegitimate one such as race. To prove that, he need not prove that he pursued the course which would both enable him to achieve his own business goal and allow him to consider the most employment applications. Title VII prohibits him from having as a goal a work force selected by any proscribed discriminatory practice, but it does not impose a duty to adopt a hiring procedure that maximizes hiring of minority employees. To dispel the adverse inference from a prima facie showing under McDonnell Douglas, the employer need only 'articulate some legitimate, nondiscriminatory reason for the employee's rejection.' " 438 U.S., at 577-578, 98 S.Ct., at 2950 (emphasis in original). The comparable passage in McDonnell Douglas reads as follows: "The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection. We need not attempt in the instant case to detail every matter which fairly could be recognized as a reasonable basis for a refusal to hire. Here petitioner has assigned respondent's participation in unlawful conduct against it as the cause for his rejection. We think that this suffices to discharge petitioner's burden of proof at this stage and to meet respondent's prima facie case of discrimination." 411 U.S., at 802-803, 93 S.Ct., at 1824. 2 The Court also suggests that "further support" for its decision is derived from the Court of Appeals' "holding" that "petitioners had not met their burden because the proffered legitimate explanation did not 'rebut' or 'disprove' respondent's prima facie case . . . 569 F.2d, at 177-179." Ante, at 25-26 n. 2. The actual "holding" of the Court of Appeals was that "the trial court's finding that sex discrimination impeded the plaintiff's second promotion was not clearly erroneous." 569 F.2d 169, 179 (CA1 1978). The Court of Appeals reached this conclusion by considering all of the evidence presented by both parties to determine whether the evidence of discrimination offered by the plaintiff was "sufficient . . . to sustain the district court's findings" in light of the counter evidence offered by the employer. Ibid. Such factual determinations by two federal courts are entitled to a strong presumption of validity. 3 438 U.S., at 577, 98 S.Ct., at 2950 (quoted in n.1, supra; emphasis added). It should also be noted that the Court of Appeals did not state that the petitioners' burden here was to "prove" anything; rather, the burden which shifted to them as defendants was to "show" a legitimate reason for their action. 4 See n. 1, supra. 5 438 U.S., at 577, 98 S.Ct., at 2950.

12

439 U.S. 30 99 S.Ct. 556 58 L.Ed.2d 267 UNITED STATES, plaintiff,v.State of CALIFORNIA No. 5 Supreme Court of the United States November 27, 1978 1 On Motion for Entry of a Third Supplemental Decree. THIRD SUPPLEMENTAL DECREE 2 To carry into effect this Court's decision of May 15, 1978, 436 U.S. 32, 98 S.Ct. 1662, 56 L.Ed.2d 94, and for the purpose of identifying with greater particularity parts of the boundary line, as defined by the Supplemental Decree herein of January 31, 1966, 382 U.S. 448, 86 S.Ct. 607, 15 L.Ed.2d 517, and by the Second Supplemental Decree herein of June 13, 1977, 432 U.S. 40, 97 S.Ct. 2915, 53 L.Ed.2d 94, between the submerged lands of the United States and the submerged lands of the State of California, it is ORDERED, ADJUDGED, AND DECREED that this Court's Supplemental Decree be, and the same is hereby, further supplemented as follows: 3 1. The United States has no right, title, or interest by virtue of the claim-of-right exception of § 5 of the Submerged Lands Act, 67 Stat. 32, 43 U.S.C. § 1313, in the tidelands (that is, lands lying between the lines of mean high water and mean lower low water) and submerged lands (that is, lands lying seaward of the line of mean lower low water) within the Channel Islands National Monument, as said Monument was established by Presidential Proclamation No. 2281, 52 Stat. 1541 (Apr. 26, 1938), and enlarged by Presidential Proclamation No. 2825, 63 Stat. 1258 (Feb. 9, 1949), to encompass "the areas within one nautical mile of the shoreline of Anacapa and Santa Barbara Islands . . . ." In all other respects, the terms of the Supplemental Decree and of the Second Supplemental Decree apply fully to the tidelands and submerged lands within the Channel Islands National Monument. 4 2. The land area above the mean high-water line of Anacapa and Santa Barbara Islands, and the land area above the mean high-water line of all islets and rocks within one nautical (geographical) mile of the coastline of Anacapa and Santa Barbara Islands are lands as to which the State of California has no title or property interest. 5 3. The Court retains jurisdiction to entertain such further proceedings, enter such orders, and issue such writs as from time to time may be deemed necessary or advisable to give proper force and effect to this decree and the prior decrees of this Court or to effectuate the rights of the parties in the premises. 6 Mr. Justice MARSHALL took no part in the formulation of this decree.

910

439 U.S. 60 99 S.Ct. 383 58 L.Ed.2d 292 HOLT CIVIC CLUB et al.v.CITY OF TUSCALOOSA et al. No. 77-515. Argued Oct. 11, 1978. Decided Nov. 28, 1978. Syllabus Appellants, a civic association and certain individual residents of Holt, Ala., a small unincorporated community outside the corporate limits of Tuscaloosa but within three miles thereof, brought this statewide class action challenging the constitutionality of "police jurisdiction" statutes that extend municipal police, sanitary, and business-licensing powers over those residing within three miles of certain corporate boundaries without permitting such residents to vote in municipal elections. A three-judge District Court granted appellees' motion to dismiss the complaint for failure to state a claim upon which relief could be granted. Held : 1. The convening of a three-judge court under then-applicable 28 U.S.C. § 2281 (1970 ed.) was proper since appellants challenged the constitutionality of state statutes that created a statewide system under which Alabama cities exercise extraterritorial powers. Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643, distinguished. Pp. 63-65. 2. Alabama's police jurisdiction statutes do not violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 66-75. (a) A government unit may legitimately restrict the right to participate in its political processes to those who reside within its borders. Various voting qualification decisions on which appellants rely in support of their contention that the denial of the franchise to them can stand only if justified by a compelling state interest are inapposite. In those cases, unlike the situation here, the challenged statutes disfranchised individuals who physically resided within the geographical boundaries of the governmental entity concerned. Pp. 66-70. (b) Alabama's police jurisdiction statutory scheme is a rational legislative response to the problems faced by the State's burgeoning cities, and the legislature has a legitimate interest in ensuring that residents of areas adjoining city borders be provided such basic municipal services as police, fire, and health protection. Nor is it unreasonable for the legislature to require police jurisdiction residents to contribute through license fees, as they do here on a reduced scale, to the expense of such services. Pp. 70-75. 3. The challenged statutes do not violate due process since appellants have no constitutional right to vote in Tuscaloosa elections. P. 75. Affirmed. Edward Still, Birmingham, Ala., for appellants. J. Wagner Finnell, Tuscaloosa, Ala., for appellees. Mr. Justice REHNQUIST delivered the opinion of the Court. 1 Holt is a small, largely rural, unincorporated community located on the northeastern outskirts of Tuscaloosa, the fifth largest city in Alabama. Because the community is within the three-mile police jurisdiction circumscribing Tuscaloosa's corporate limits, its residents are subject to the city's "police [and] sanitary regulations." Ala.Code § 11-40-10 (1975).1 Holt residents are also subject to the criminal jurisdiction of the city's court, Ala.Code § 12-14-1 (1975),2 and to the city's power to license businesses, trades, and professions, Ala.Code § 11-51-91 (1975).3 Tuscaloosa, however, may collect from businesses in the police jurisdiction only one-half of the license fee chargeable to similar businesses conducted within the corporate limits. Ibid. 2 In 1973 appellants, an unincorporated civic association and seven individual residents of Holt, brought this statewide class action in the United States District Court for the Northern District of Alabama,4 challenging the constitutionality of these Alabama statutes. They claimed that the city's extraterritorial exercise of police powers over Holt residents, without a concomitant extension of the franchise on an equal footing with those residing within the corporate limits, denies residents of the police jurisdiction rights secured by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The District Court denied appellants' request to convene a three-judge court pursuant to 28 U.S.C. § 2281 (1970 ed.) and dismissed the complaint for failure to state a claim upon which relief could be granted. Characterizing the Alabama statutes as enabling Acts, the District Court held that the statutes lack the requisite statewide application necessary to convene a three-judge District Court. On appeal, the Court of Appeals for the Fifth Circuit ordered the convening of a three-judge court, finding that the police jurisdiction statute embodies " 'a policy of statewide concern.' " Holt Civic Club v. Tuscaloosa, 525 F.2d 653, 655 (1975) quoting Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 94, 55 S.Ct. 678, 680, 79 L.Ed. 1322 (1935). 3 A three-judge District Court was convened, but appellants' constitutional claims fared no better on the merits. Noting that appellants sought a declaration that extraterritorial regulation is unconstitutional per se rather than an extension of the franchise to police jurisdiction residents, the District Court held simply that "[e]qual protection has not been extended to cover such contention." App. to Juris. Statement 2a. The court rejected appellants' due process claim without comment. Accordingly, appellees' motion to dismiss was granted. 4 Unsure whether appellants' constitutional attack on the Alabama statutes satisfied the requirements of 28 U.S.C. § 2281 (1970 ed.) for convening a three-judge district court, we postponed consideration of the jurisdictional issue until the hearing of the case on the merits. 435 U.S. 914, 98 S.Ct. 1466, 55 L.Ed.2d 504 (1978). We now conclude that the three-judge court was properly convened and that appellants' constitutional claims were properly rejected. 5 * Before its repeal,5 28 U.S.C. § 2281 (1970 ed.) required that a three-judge district court be convened in any case in which a preliminary or permanent injunction was sought to restrain "the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute . . . ." Our decisions have interpreted § 2281 to require the convening of a three-judge district court "where the challenged statute or regulation, albeit created or authorized by a state legislature, has statewide application or effectuates a statewide policy." Board of Regents v. New Left Education Project, 404 U.S. 541, 542, 92 S.Ct. 652, 653, 30 L.Ed.2d 697 (1972). Relying on Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967), appellees contend, and the original single-judge District Court held, that Alabama's police jurisdiction statutes lack statewide impact. 6 A three-judge court was improperly convened in Moody, because the challenged state statutes had "limited application, concerning only a particular county involved in the litigation . . . ." Id., at 104, 87 S.Ct., at 1549. In contrast, appellants' constitutional attack focuses upon a state statute that creates the statewide system under which Alabama cities exercise extraterritorial powers. In mandatory terms, the statute provides that municipal police and sanitary ordinances "shall have force and effect in the limits of the city or town and in the police jurisdiction thereof and on any property or rights-of-way belonging to the city or town."6 Clearly, Alabama's police jurisdiction statutes have statewide application. See, e. g., Sailors v. Board of Education, 387 U.S. 105, 107, 87 S.Ct. 1549, 1551, 18 L.Ed.2d 650 (1967). That the named defendants are local officials is irrelevant where, as here, those officials are "functioning pursuant to a statewide policy and performing a state function." Moody v. Flowers, supra, 387 U.S., at 102, 87 S.Ct., at 1548; Spielman Motor Sales Co. v. Dodge, supra, 295 U.S., at 94-95, 55 S.Ct., at 680. The convening of a three-judge District Court was proper. II 7 Appellants' amended complaint requested the District Court to declare the Alabama statutes unconstitutional and to enjoin their enforcement insofar as they authorize the extraterritorial exercise of municipal powers. Seizing on the District Court's observation that "[appellants] do not seek extension of the franchise to themselves," appellants suggest that their complaint was dismissed because they sought the wrong remedy. 8 The unconstitutional predicament in which appellants assertedly found themselves could be remedied in only two ways: (1) the city's extraterritorial power could be negated by invalidating the State's authorizing statutes or (2) the right to vote in municipal elections could be extended to residents of the police jurisdiction. We agree with appellants that a federal court should not dismiss a meritorious constitutional claim because the complaint seeks one remedy rather than another plainly appropriate one. Under the Federal Rules of Civil Procedure "every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." Rule 54(c). Thus, although the prayer for relief may be looked to for illumination when there is doubt as to the substantive theory under which a plaintiff is proceeding, its omissions are not in and of themselves a barrier to redress of a meritorious claim. See, e. g., 6 J. Moore, W. Taggert, & J. Wicker, Moore's Federal Practice ¶ 54.62, pp. 1261-1265 (2d ed. 1976). But while a meritorious claim will not be rejected for want of a prayer for appropriate relief, a claim lacking substantive merit obviously should be rejected. We think it is clear from the pleadings in this case that appellants have alleged no claim cognizable under the United States Constitution. A. 9 Appellants focus their equal protection attack on § 11-40-10, the statute fixing the limits of municipal police jurisdiction and giving extraterritorial effect to municipal police and sanitary ordinances. Citing Kramer v. Union Free School Dist., 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), and cases following in its wake, appellants argue that the section creates a classification infringing on their right to participate in municipal elections. The State's denial of the franchise to police jurisdiction residents, appellants urge, can stand only if justified by a compelling state interest. 10 At issue in Kramer was a New York voter qualification statute that limited the vote in school district elections to otherwise qualified district residents who (1) either owned or leased taxable real property located within the district, (2) were married to persons owning or leasing qualifying property, or (3) were parents or guardians of children enrolled in a local district school for a specified time during the preceding year. Without deciding whether or not a State may in some circumstances limit the franchise to residents primarily interested in or primarily affected by the activities of a given governmental unit, the Court held that the statute was not sufficiently tailored to meet that state interest since its classifications excluded many bona fide residents of the school district who had distinct and direct interests in school board decisions and included many residents whose interests in school affairs were, at best, remote and indirect. 11 On the same day, in Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), the Court upheld an equal protection challenge to a Louisiana law providing that only "property taxpayers" could vote in elections called to approve the issuance of revenue bonds by a municipal utility system. Operation of the utility system affected virtually every resident of the city, not just property owners, and the bonds were in no way financed by property tax revenue. Thus, since the benefits and burdens of the bond issue fell indiscriminately on property owner and nonproperty owner alike, the challenged classification impermissibly excluded otherwise qualified residents who were substantially affected by and directly interested in the matter put to a referendum. The rationale of Cipriano was subsequently called upon to invalidate an Arizona law restricting the franchise to property taxpayers in elections to approve the issuance of general obligation municipal bonds. Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970). 12 Appellants also place heavy reliance on Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970). In Evans the Permanent Board of Registry of Montgomery County, Md., ruled that persons living on the grounds of the National Institutes of Health (NIH), a federal enclave located within the geographical boundaries of the State, did not meet the residency requirement of the Maryland Constitution. Accordingly, NIH residents were denied the right to vote in Maryland elections. This Court rejected the notion that persons living on NIH grounds were not residents of Maryland: 13 "Appellees clearly live within the geographical boundaries of the State of Maryland, and they are treated as state residents in the census and in determining congressional apportionment. They are not residents of Maryland only if the NIH grounds ceased to be a part of Maryland when the enclave was created. However, that 'fiction of a state within a state ' was specifically rejected by this Court in Howard v. Commissioners of Louisville, 344 U.S. 624, 627, 73 S.Ct. 465, 467, 97 L.Ed. 617 (1953), and it cannot be resurrected here to deny appellees the right to vote." Id., at 421-422, 90 S.Ct. at 1754. 14 Thus, because inhabitants of the NIH enclave were residents of Maryland and were "just as interested in and connected with electoral decisions as they were prior to 1953 when the area came under federal jurisdiction and as their neighbors who live off the enclave," id., at 426, 90 S.Ct. at 1757, the State could not deny them the equal right to vote in Maryland elections. 15 From these and our other voting qualifications cases a common characteristic emerges: The challenged statute in each case denied the franchise to individuals who were physically resident within the geographic boundaries of the governmental entity concerned. See, e. g., Hill v. Stone, 421 U.S. 289, 95 S.Ct. 1637, 44 L.Ed.2d 172 (1975) (invalidating provision of the Texas Constitution restricting franchise on general obligation bond issue to residents who had "rendered" or listed real, mixed, or personal property for taxation in the election district); Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (invalidating Virginia statute conditioning the right to vote of otherwise qualified residents on payment of a poll tax); cf. Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970) (invalidating Georgia statute restricting county school board membership to residents owning real property in the county). No decision of this Court has extended the "one man, one vote" principle to individuals residing beyond the geographic confines of the governmental entity concerned, be it the State or its political subdivisions. On the contrary, our cases have uniformly recognized that a government unit may legitimately restrict the right to participate in its political processes to those who reside within its borders. See, e. g., Dunn v. Blumstein, 405 U.S. 330, 343-344, 92 S.Ct. 995, 1003-1004, 31 L.Ed.2d 274 (1972); Evans v. Cornman, supra, 398 U.S. at 422, 90 S.Ct. at 1754; Kramer v. Union Free School Dist., 395 U.S., at 625, 89 S.Ct., at 1888; Carrington v. Rash, 380 U.S. 89, 91, 85 S.Ct. 775, 777, 13 L.Ed.2d 675 (1965); Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904). Bona fide residence alone, however, does not automatically confer the right to vote on all matters, for at least in the context of special interest elections the State may constitutionally disfranchise residents who lack the required special interest in the subject matter of the election. See Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973); Associated Enterprises, Inc. v. Toltec Watershed Improvement Dist., 410 U.S. 743, 93 S.Ct. 1237, 35 L.Ed.2d 675 (1973). 16 Appellants' argument that extraterritorial extension of municipal powers requires concomitant extraterritorial extension of the franchise proves too much. The imaginary line defining a city's corporate limits cannot corral the influence of municipal actions. A city's decisions inescapably affect individuals living immediately outside its borders. The granting of building permits for high rise apartments, industrial plants, and the like on the city's fringe unavoidably contributes to problems of traffic congestion, school districting, and law enforcement immediately outside the city. A rate change in the city's sales or ad valorem tax could well have a significant impact on retailers and property values in areas bordering the city. The condemnation of real property on the city's edge for construction of a municipal garbage dump or waste treatment plant would have obvious implications for neighboring nonresidents. Indeed, the indirect extraterritorial effects of many purely internal municipal actions could conceivably have a heavier impact on surrounding environs than the direct regulation contemplated by Alabama's police jurisdiction statutes. Yet no one would suggest that nonresidents likely to be affected by this sort of municipal action have a constitutional right to participate in the political processes bringing it about. And unless one adopts the idea that the Austinian notion of sovereignty, which is presumably embodied to some extent in the authority of a city over a police jurisdiction, distinguishes the direct effects of limited municipal powers over police jurisdiction residents from the indirect though equally dramatic extraterritorial effects of purely internal municipal actions, it makes little sense to say that one requires extension of the franchise while the other does not. 17 Given this country's tradition of popular sovereignty, appellants' claimed right to vote in Tuscaloosa elections is not without some logical appeal. We are mindful, however, of Mr. Justice Holmes' observation in Hudson Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531, 52 L.Ed. 828 (1908): 18 "All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached. . . . The boundary at which the conflicting interests balance cannot be determined by any general formula in advance, but points in the line, or helping to establish it, are fixed by decisions that this or that concrete case falls on the nearer or farther side." 19 The line heretofore marked by this Court's voting qualifications decisions coincides with the geographical boundary of the governmental unit at issue, and we hold that appellants' case, like their homes, falls on the farther side. B 20 Thus stripped of its voting rights attire, the equal protection issue presented by appellants becomes whether the Alabama statutes giving extraterritorial force to certain municipal ordinances and powers bear some rational relationship to a legitimate state purpose. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). "The Fourteenth Amendment does not prohibit legislation merely because it is special, or limited in its application to a particular geographical or political subdivision of the state." Fort Smith Light Co. v. Paving Dist., 274 U.S. 387, 391, 47 S.Ct. 595, 597, 71 L.Ed. 1112 (1927). Rather, the Equal Protection Clause is offended only if the statute's classification "rests on grounds wholly irrelevant to the achievement of the State's objective." McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1104, 6 L.Ed.2d 393 (1961); Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 556, 67 S.Ct. 910, 912, 91 L.Ed. 1093 (1947). 21 Government, observed Mr. Justice Johnson, "is the science of experiment," Anderson v. Dunn, 6 Wheat. 204, 226, 5 L.Ed. 242, 247 (1821), and a State is afforded wide leeway when experimenting with the appropriate allocation of state legislative power. This Court has often recognized that political subdivisions such as cities and counties are created by the State "as convenient agencies for exercising such of the governmental powers of the state as may be entrusted to them." Hunter v. Pittsburgh, 207 U.S. 161, 178, 28 S.Ct. 40, 46, 52 L.Ed. 151 (1907). See also, e. g., Sailors v. Board of Education, 387 U.S., at 108, 87 S.Ct., at 1552; Reynolds v. Sims, 377 U.S. 533, 575, 84 S.Ct. 1362, 1388, 12 L.Ed.2d 506 (1964). In Hunter v. Pittsburgh the Court discussed at length the relationship between a State and its political subdivisions, remarking: "The number, nature and duration of the powers conferred upon [municipal] corporations and the territory over which they shall be exercised rests in the absolute discretion of the state." 207 U.S., at 178, 28 S.Ct., at 46. While the broad statements as to state control over municipal corporations contained in Hunter have undoubtedly been qualified by the holdings of later cases such as Kramer v. Union Free School Dist., supra, we think that the case continues to have substantial constitutional significance in emphasizing the extraordinarily wide latitude that States have in creating various types of political subdivisions and conferring authority upon them.7 22 The extraterritorial exercise of municipal powers is a governmental technique neither recent in origin nor unique to the State of Alabama. See R. Maddox, Extraterritorial Powers of Municipalities in the United States (1955). In this country 35 States authorize their municipal subdivisions to exercise governmental powers beyond their corporate limits. Comment, The Constitutionality of the Exercise of Extraterritorial Powers by Municipalities, 45 U.Chi.L.Rev. 151 (1977). Although the extraterritorial municipal powers granted by these States vary widely, several States grant their cities more extensive or intrusive powers over bordering areas than those granted under the Alabama statutes.8 In support of their equal protection claim, appellants suggest a number of "constitutionally preferable" governmental alternatives to Alabama's system of municipal police jurisdictions. For example, exclusive management of the police jurisdiction by county officials, appellants maintain, would be more "practical." From a political science standpoint, appellants' suggestions may be sound, but this Court does not sit to determine whether Alabama has chosen the soundest or most practical form of internal government possible. Authority to make those judgments resides in the state legislature, and Alabama citizens are free to urge their proposals to that body. See, e. g., Hunter v. Pittsburgh, 207 U.S., at 179, 28 S.Ct., at 46. Our inquiry is limited to the question whether "any state of facts reasonably may be conceived to justify" Alabama's system of police jurisdictions, Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S., at 732, 93 S.Ct., at 1231, and in this case it takes but momentary reflection to arrive at an affirmative answer. 23 The Alabama Legislature could have decided that municipal corporations should have some measure of control over activities carried on just beyond their "city limit" signs, particularly since today's police jurisdiction may be tomorrow's annexation to the city proper. Nor need the city's interests have been the only concern of the legislature when it enacted the police jurisdiction statutes. Urbanization of any area brings with it a number of individuals who long both for the quiet of suburban or country living and for the career opportunities offered by the city's working environment. Unincorporated communities like Holt dot the rim of most major population centers in Alabama and elsewhere, and state legislatures have a legitimate interest in seeing that this substantial segment of the population does not go without basic municipal services such as police, fire, and health protection. Established cities are experienced in the delivery of such services, and the incremental cost of extending the city's responsibility in these areas to surrounding environs may be substantially less than the expense of establishing wholly new service organizations in each community. 24 Nor was it unreasonable for the Alabama Legislature to require police jurisdiction residents to contribute through license fees to the expense of services provided them by the city. The statutory limitation on license fees to half the amount exacted within the city assures that police jurisdiction residents will not be victimized by the city government. 25 "Viable local governments may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions." Sailors v. Board of Education, 387 U.S., at 110-111, 87 S.Ct., at 1553. This observation in Sailors was doubtless as true at the turn of this century, when urban areas throughout the country were temporally closer to the effects of the industrial revolution. Alabama's police jurisdiction statute, enacted in 1907, was a rational legislative response to the problems faced by the State's burgeoning cities. Alabama is apparently content with the results of its experiment, and nothing in the Equal Protection Clause of the Fourteenth Amendment requires that it try something new. C 26 Appellants also argue that "governance without the franchise is a fundamental violation of the due process clause." Brief for Appellants 28. Support for this proposition is alleged to come from United States v. Texas, 252 F.Supp. 234 (WD Tex.) (three-judge District Court), summarily aff'd, 384 U.S. 155, 86 S.Ct. 1383, 16 L.Ed.2d 434 (1966), which held that conditioning the franchise of otherwise qualified voters on payment of a poll tax denied due process to many Texas voters. Appellants' argument proceeds from the assumption, earlier shown to be erroneous, supra, at 66-70, that they have a right to vote in Tuscaloosa elections. Their conclusion falls with their premise. III 27 In sum, we conclude that Alabama's police jurisdiction statutes violate neither the Equal Protection Clause nor the Due Process Clause of the Fourteenth Amendment. Accordingly, the judgment of the District Court is 28 Affirmed. 29 Mr. Justice STEVENS, concurring. 30 The Court today holds that the Alabama statutes providing for the extraterritorial exercise of certain limited powers by municipalities are not unconstitutional. While I join the opinion of the Court, I write separately to emphasize that this holding does not make all exercises of extraterritorial authority by a municipality immune from attack under the Equal Protection Clause of the Fourteenth Amendment. 31 The Alabama Legislature, which is elected by all of the citizens of the State including the individual appellants, has prescribed a statewide program pursuant to which residents of police jurisdictions are subject to limited regulation by, and receive certain services from, adjacent cities. In return, those residents who are engaged in business are charged license fees equal to one-half those charged to city businesses. In my view, there is nothing necessarily unconstitutional about such a system. Certainly there is nothing in the Federal Constitution to prevent a suburb from contracting with a nearby city to provide municipal services for its residents, even though those residents have no voice in the election of the city's officials or in the formulation of the city's rules. That is essentially what Alabama has accomplished here, through the elected representatives of all its citizens in the state legislature.1 32 Of course, in structuring a system, neither a contracting suburb nor an enacting legislature can consent to a waiver of the constitutional rights of its constituents in the election process. For "when the State delegates lawmaking power to local government and provides for the election of local officials from districts specified by statute, ordinance, or local charter, it must insure that those qualified to vote have the right to an equally effective voice in the election process." Avery v. Midland County, 390 U.S. 474, 480, 88 S.Ct. 1114, 1118, 20 L.Ed.2d 45. 33 But the fact that these appellants are subject to certain regulations of the municipality does not itself establish that they are "qualified to vote." Unlike the residents of the National Institute of Health enclave at issue in Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370, appellants are not without any voice in the election of the officials who govern their affairs. They do vote for the county, state, and federal officials who exercise primary control over their day-to-day lives. And even as to their interaction with the government of the city, appellants are not completely without a voice: through their state representatives, they participate directly in the process which has created their governmental relationship with the city. The question then is whether by virtue of that relationship created by state law, the residents of Holt and all other police jurisdictions in the State are entitled to a voice "equally effective" with the residents of the municipalities themselves in the election of the officials responsible for governing the municipalities. 34 In my judgment, they are not. A State or city is free under the Constitution to require that "all applicants for the vote actually fulfill the requirements of bona fide residence." Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 780, 13 L.Ed.2d 675. While it is not free to draw residency lines which deny the franchise to individuals who "are just as interested in and connected with electoral decisions . . . as are their neighbors" who are entitled to vote, Evans v. Cornman, supra, 398 U.S., at 426, 90 S.Ct., at 1757, the Alabama statutes, at least on their face, do not do so. The powers of extraterritorial jurisdiction granted by the challenged statutes are limited. Tuscaloosa, for example, does not tax the residents of Holt, nor does it control the zoning of their property or the operation of their schools. Indeed, many of the powers traditionally exercised by municipalities—the provision of parks, hospitals, schools, and libraries and the construction and repair of bridges and highways are entrusted here to the county government, which is fully representative of Holt. Nor is there any claim that residency lines have generally been drawn invidiously or that residents of the police jurisdictions have been charged unreasonable costs for the services they receive. In sum, appellants have shown no more than that they and all residents of police jurisdictions in Alabama are subject to some but by no means all—of the regulations and services afforded by the cities to their residents, in return for which they pay license fees half as great as those paid by city residents. Such a showing is plainly insufficient to justify a holding that the Alabama statutes are unconstitutional and cannot be applied anywhere in the State. 35 This is all that the Court decides today. For this suit was brought under the then-applicable three-judge-court jurisdiction as a challenge to the constitutionality of the Alabama statutes.2 Appellants did not merely challenge the statutes as applied in the Tuscaloosa police jurisdiction. Rather, they sought to represent all Alabama residents living in contiguous zones, and to have the statutes at issue here declared unconstitutional in all their applications throughout the State. It was for this very reason that the Court of Appeals for the Fifth Circuit concluded that three-judge-court jurisdiction was proper in this case. See Holt Civic Club v. Tuscaloosa, 525 F.2d 653, 655 (1975). And it is for this reason that our holding is necessarily a limited one. The statutory scheme created by the Alabama Legislature is not unconstitutional by its terms, but it may well be, as the opinion of the Court recognizes, ante, at 72-73, n. 8, that that scheme or another much like it might sometimes operate to deny the franchise to individuals who share the interests of their voting neighbors. No such question, however, is presented by this appeal from the decision of the three-judge District Court. See Moody v. Flowers, 387 U.S. 97, 92 S.Ct. 652, 30 L.Ed.2d 697; Rorick v. Board of Comm'rs, 307 U.S. 208, 59 S.Ct. 808, 83 L.Ed. 1242. 36 Mr. Justice BRENNAN, with whom Mr. Justice WHITE and Mr. Justice MARSHALL join, dissenting. 37 Alabama creates by statute an area of "police jurisdiction" encompassing all adjoining territory within three miles of the corporate limits of cities with a population of 6,000 or more. Within this police jurisdiction Alabama law provides that "[o]rdinances of a city . . . enforcing police or sanitary regulations and prescribing fines and penalties for violations thereof shall have force and effect . . .." Ala.Code § 11-40-10 (1975).1 Alabama law provides in addition that a city "may fix and collect licenses for any business, trade or profession done within the police jurisdiction of such city . . . provided, that the amount of such licenses shall not be more than one half the amount charged and collected as a license for like business, trade or profession done within the corporate limits of such city . . .." Ala.Code § 11-51-91 (1975).2 At the time this lawsuit commenced on August 7, 1973, Alabama vested jurisdiction of the prosecution of breaches of municipal ordinances occurring within a police jurisdiction in a recorder's court,3 the recorder being elected by a city's board of commissioners. Ala.Code, Tit. 37, § 584 (1958).4 38 Appellants are the Holt Civic Club and seven residents of the unincorporated community of Holt, which lies within the police jurisdiction of the city of Tuscaloosa, Ala.5 Although appellants are thus subject to Tuscaloosa's police and sanitary ordinances, to the jurisdiction of its municipal court,6 and to the requirements of its licensing fees, appellants are not permitted to vote in Tuscaloosa's municipal elections, or to participate in or to initiate Tuscaloosa's referenda or recall elections. Appellants claim that this disparity "infringes on their constitutional right (under the due process and equal protection clauses) to a voice in their government." Complaint ¶ 11. The three-judge District Court below dismissed appellants' equal protection and due process claims.7 Without reaching the due process issue, I would reverse the judgment of the District Court and hold that appellants' equal protection claim should have been sustained. 39 It is, of course, established that once a "franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment." Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665, 86 S.Ct. 1079, 1081, 16 L.Ed.2d 169 (1966). Because "statutes distributing the franchise constitute the foundation of our representative society," Kramer v. Union Free School Dist., 395 U.S. 621, 626, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969), we have subjected such statutes to "exacting judicial scrutiny." Id., at 628, 89 S.Ct., at 1890.8 Indeed, "if a challenged statute grants the right to vote to some citizens and denies the franchise to others, 'the Court must determine whether the exclusions are necessary to promote a compelling state interest.' [Kramer v. Union Free School Dist.,] 395 U.S., at 627, 89 S.Ct., at 1890 (emphasis added)." Dunn v. Blumstein, 405 U.S. 330, 337, 92 S.Ct. 995, 1000, 31 L.Ed.2d 274 (1972). The general rule is that "whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election . . .." Hadley v. Junior College Dist., 397 U.S. 50, 56, 90 S.Ct. 791, 795, 25 L.Ed.2d 45 (1970). 40 Our decisions before today have held that bona fide residency requirements are an acceptable means of distinguishing qualified from unqualified voters. Dunn v. Blumstein, supra, 405 U.S. at 343, 92 S.Ct. at 1003. The Court holds today, however, that the restriction of the franchise to those residing within the corporate limits of the city of Tuscaloosa is such a bona fide residency requirement. The Court rests this holding on the conclusion that "a government unit may legitimately restrict the right to participate in its political processes to those who reside within its borders." Ante, at 68-69. The Court thus insulates the Alabama statutes challenged in this case from the strict judicial scrutiny ordinarily applied to state laws distributing the franchise. In so doing, the Court cedes to geography a talismanic significance contrary to the theory and meaning of our past voting-rights cases. 41 We have previously held that when statutes distributing the franchise depend upon residency requirements, state-law characterizations of residency are not controlling for purposes of the Fourteenth Amendment. See, e. g., Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). Indeed, Dunn v. Blumstein, supra, was careful to exempt from strict judicial scrutiny only bona fide residency requirements that were "appropriately defined and uniformly applied." 405 U.S., at 343, 92 S.Ct., at 1003. The touchstone for determining whether a residency requirement is "appropriately defined" derives from the purpose of such requirements, which, as stated in Dunn, is "to preserve the basic conception of a political community." Id., at 344, 92 S.Ct., at 1004. At the heart of our basic conception of a "political community," however, is the notion of a reciprocal relationship between the process of government and those who subject themselves to that process by choosing to live within the area of its authoritative application.9 Cf. Avery v. Midland County, 390 U.S. 474, 485, 88 S.Ct. 1114, 1120, 20 L.Ed.2d 45 (1968). Statutes such as those challenged in this case, which fracture this relationship by severing the connection between the process of government and those who are governed in the places of their residency, thus undermine the very purposes which have led this Court in the past to approve the application of bona fide residency requirements. 42 There is no question but that the residents of Tuscaloosa's police jurisdiction are governed by the city.10 Under Alabama law, a municipality exercises "governing" and "law-making" power over its police jurisdiction. City of Homewood v. Wofford Oil Co., 232 Ala. 634, 637, 169 So. 288, 290 (1936). Residents of Tuscaloosa's police jurisdiction are subject to license fees exacted by the city, as well as to the city's police and sanitary regulations, which can be enforced through penal sanctions effective in the city's municipal court. See Birmingham v. Lake, 243 Ala. 367, 372, 10 So.2d 24, 28 (1942). The Court seems to imply, however, that residents of the police jurisdiction are not governed enough to be included within the political community of Tuscaloosa, since they are not subject to Tuscaloosa's powers of eminent domain, zoning, or ad valorem taxation. Ante, at 73 n. 8. But this position is sharply contrary to our previous holdings. InKramer v. Union Free School Dist., 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), for example, we held that residents of a school district who neither owned nor leased taxable real property located within the district, or were not married to someone who did, or were not parents or guardians of children enrolled in a local district school, nevertheless were sufficiently affected by the decisions of the local school board to make the denial of their franchise and local school board elections a violation of the Equal Protection Clause. Similarly, we held in Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), that a Louisiana statute limiting the franchise in municipal utility system revenue bond referenda to those who were "property taxpayers" was unconstitutional because all residents of the municipality were affected by the operation of the utility system. See Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970). 43 The residents of Tuscaloosa's police jurisdiction are vastly more affected by Tuscaloosa's decisionmaking processes than were the plaintiffs in either Kramer or Cipriano affected by the decisionmaking processes from which they had been unconstitutionally excluded. Indeed, under Alabama law Tuscaloosa's authority to create and enforce police and sanitary regulations represents an extensive reservoir of power "to prevent, an anticipation of danger to come, . . . and in so doing to curb and restrain the individual tendency." Gilchrist Drug Co. v. Birmingham, 234 Ala. 204, 208, 174 So. 609, 612 (1937). See Cooper v. Town of Valley Head, 212 Ala. 125, 126, 101 So. 874, 875 (1924). A municipality, for example, may use its police powers to regulate, or even to ban, common professions and businesses. "In the exertion and application of the police power there is to be observed the sound distinction as to useful and harmless trades, occupations and businesses and as to businesses, occupations and trades recognized as hurtful to public morals, public safety, productive of disorder or injurious to public good. In applying it to the class last mentioned it may be exerted to destroy." Chappell v. Birmingham, 236 Ala. 363, 365, 181 So. 906, 907 (1938). The Court today does not explain why being subjected to the authority to exercise such extensive power does not suffice to bring the residents of Tuscaloosa's police jurisdiction within the political community of the city. Nor does the Court in fact provide any standards for determining when those subjected to extraterritorial municipal legislation will have been "governed enough" to trigger the protections of the Equal Protection Clause. 44 The criterion of geographical residency relied upon by the Court is of no assistance in this analysis. Just as the State may not fracture the integrity of a political community by restricting the franchise to property taxpayers, so it may not use geographical restrictions on the franchise to accomplish the same end. This is the teaching of Evans v. Cornman. Evans held, contrary to the conclusion of the Maryland Court of Appeals, that those who lived on the grounds of the National Institutes of Health (NIH) enclave within Montgomery County were residents of Maryland for purposes of the franchise. Our decision rested on the grounds that inhabitants of the enclave were "treated as state residents in the census and in determining congressional apportionment," 398 U.S., at 421, 90 S.Ct., at 1754, and that "residents of the NIH grounds are just as interested in and connected with electoral decisions as they were prior to 1953 when the area came under federal jurisdiction and as are their neighbors who live off the enclave." Id., at 426, 90 S.Ct., at 1757. Residents of Tuscaloosa's police jurisdiction are assuredly as "interested in and connected with" the electoral decisions of the city as were the inhabitants of the NIH enclave in the electoral decisions of Maryland. True, inhabitants of the enclave lived "within the geographical boundaries of the State of Maryland," but appellants in this case similarly reside within the geographical boundaries of police jurisdiction. They live within the perimeters of the city's "legislative powers." City of Leeds v. Town of Moody, 294 Ala. 496, 501, 319 So.2d 242, 246 (1975). 45 The criterion of geographical residency is thus entirely arbitrary when applied to this case. It fails to explain why, consistently with the Equal Protection Clause, the "government unit" which may exclude from the franchise those who reside outside of its geographical boundaries should be composed of the city of Tuscaloosa rather than of the city together with its police jurisdiction. It irrationally distinguishes between two classes of citizens, each with equal claim to residency (insofar as that can be determined by domicile or intention or other similar criteria), and each governed by the city of Tuscaloosa in the place of their residency. 46 The Court argues, however, that if the franchise were extended to residents of the city's police jurisdiction, the franchise must similarly be extended to all those indirectly affected by the city's actions. This is a simple non sequitur. There is a crystal-clear distinction between those who reside in Tuscaloosa's police jurisdiction, and who are therefore subject to that city's police and sanitary ordinances, licensing fees, and the jurisdiction of its municipal court, and those who reside in neither the city nor its police jurisdiction, and who are thus merely affected by the indirect impact of the city's decisions. This distinction is recognized in Alabama law, cf. Roberson v. City of Montgomery, 285 Ala. 421, 233 So.2d 69 (1970), and is consistent with, if not mandated by, the very conception of a political community underlying constitutional recognition of bona fide residency requirements. 47 Appellants' equal protection claim can be simply expressed: The State cannot extend the franchise to some citizens who are governed by municipal government in the places of their residency, and withhold the franchise from others similarly situated, unless this distinction is necessary to promote a compelling state interest. No such interest has been articulated in this case. Neither Tuscaloosa's interest in regulating "activities carried on just beyond [its] 'city limit' signs," ante, at 392, nor Alabama's interest in providing municipal services to the unincorporated communities surrounding its cities, ibid., are in any way inconsistent with the extension of the franchise to residents of Tuscaloosa's police jurisdiction. Although a great many States may presently authorize the exercise of extraterritorial lawmaking powers by a municipality,11 and although the Alabama statutes involved in this case may be of venerable age, neither of these factors, as Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), made clear, can serve to justify practices otherwise impermissible under the Equal Protection Clause of the Fourteenth Amendment. 48 Therefore, since the statutes challenged by appellants distinguish among otherwise qualified voters without a compelling justification, I would reverse the judgment of the District Court and hold the challenged statutes to be in violation of the Equal Protection Clause. 1 The full text of § 11-40-10 provides: "The police jurisdiction in cities having 6,000 or more inhabitants shall cover all adjoining territory within three miles of the corporate limits, and in cities having less than 6,000 inhabitants and in towns, such police jurisdiction shall extend also to the adjoining territory within a mile and a half of the corporate limits of such city or town. "Ordinances of a city or town enforcing police or sanitary regulations and prescribing fines and penalties for violations thereof shall have force and effect in the limits of the city or town and in the police jurisdiction thereof and on any property or rights-of-way belonging to the city or town." 2 "The municipal court shall have jurisdiction of all prosecutions for the breach of the ordinances of the municipality within its police jurisdiction." Ala.Code § 12-14-1(b) (1975). 3 In pertinent part § 11-51-91 provides: "Any city or town within the state of Alabama may fix and collect licenses for any business, trade or profession done within the police jurisdiction of such city or town but outside the corporate limits thereof; provided, that the amount of such licenses shall not be more than one half the amount charged and collected as a license for like business, trade or profession done within the corporate limits of such city or town, fees and penalties excluded . . . ." Although not at issue here, Ala.Code § 11-52-8 (1975) imposes a duty on the municipal planning commission "to make and adopt a master plan for the physical development of the municipality, including any areas outside of its boundaries which, in the commission's judgment, bear relation to the planning of such municipality." Under Ala.Code §§ 11-52-30 and 11-52-31 (1975), also not contested here, the municipal planning commission is required to adopt regulations governing the subdivision of land within its jurisdiction, which includes all land lying within five miles of the municipality's corporate limits and not located within the corporate limits of any other municipality. 4 This suit was instituted prior to the 1975 recompilation of the Alabama Code. Other than minor stylistic changes, § 11-40-10 and § 11-51-91 are identical to their predecessors, Ala.Code, Tit. 37, §§ 9 and 733 (1958) respectively. Section 12-14-1 abolished the recorder's courts created under its predecessor, Ala.Code, Tit. 37, § 585 (1958), and replaced them with municipal courts having similar extraterritorial jurisdiction. 5 Pub.L. 94-381, § 1, Aug. 12, 1976, 90 Stat. 1119. 6 Ala.Code § 11-40-10 (1975) (emphasis added). The Alabama Supreme Court has recognized the mandatory nature of § 11-40-10. In City of Leeds v. Town of Moody, 294 Ala. 496, 319 So.2d 242 (1975), the court rejected the contention that the city of Leeds had, by discontinuing police and fire protection in its police jurisdiction, "waived and relinquished its police jurisdiction over the area." Id., at 502, 319 So.2d, at 246. "Since a municipality cannot barter away a governmental power specifically delegated to it by the legislature, . . . it follows that it also cannot waive or relinquish such power." Ibid. See also Trailway Oil Co. v. Mobile, 271 Ala. 218, 224, 122 So.2d 757, 762 (1960) ("[Section] 9 of Title 37 [now § 11-40-10], describing the territorial extent of the municipal police jurisdiction and the incidents thereof, and § 733 of Title 37 [now § 11-51-91], as amended, authorizing and regulating the fixing and collecting of licenses within the police jurisdiction of cities and towns, are general laws, and, as such, they are considered part of every municipal charter"); Coursey v. City of Andalusia, 24 Ala.App. 247, 247-248, 134 So. 671 (1931) ("Under the statute [§ 11-40-10] the police jurisdiction extends to all the adjoining territory within a mile and a half of the corporate limits of said city, and . . . ordinances of the city enforcing police or sanitary regulations . . . have force and effect not only in the limits of the city, but also in the police jurisdiction thereof"). 7 In this case residents of the police jurisdiction are excluded only from participation in municipal elections since they reside outside of Tuscaloosa's corporate limits. This "denial of the franchise," as appellants put it, does not have anything like the far-reaching consequences of the denial of the franchise in Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970). There the Court pointed out that "[i]n nearly every election, federal, state, and local, for offices from the Presidency to the school board, and on the entire variety of other ballot propositions, appellees have a stake equal to that of other Maryland residents." Id., at 426, 90 S.Ct., at 1757. Treatment of the plaintiffs in Evans as nonresidents of Maryland had repercussions not merely with respect to their right to vote in city elections, but with respect to their right to vote in national, state, school board, and referendum elections. 8 Municipalities in some States have most almost unrestricted governmental powers over surrounding unincorporated territories. For example, South Dakota cities "have power to exercise jurisdiction for all authorized purposes over all territory within the corporate limits . . . and in and over all places, except within the corporate limits of another municipality, within one mile of the corporate limits or of any public ground or park belonging to the municipality outside the corporate limits, for the purpose of promoting the health, safety, morals, and general welfare of the community, and of enforcing its ordinances and resolutions relating thereto." S.D.Comp. Laws Ann. § 9-29-1 (1967). North Dakota's statutory grant of extraterritorial municipal powers is similarly broad: "Except as otherwise provided by law, a governing body of a municipality shall have jurisdiction: * * * * * "2. In and over all places within one-half mile of the municipal limits for the purpose of enforcing health and quarantine ordinances and regulations and police regulations and ordinances adopted to promote the peace, order, safety, and general welfare of the municipality." N.D.Cent.Code § 40-06-01(2) (1968). Cities in many States are statutorily authorized to zone extraterritorially, see, e. g., Ariz.Rev.Stat.Ann. § 9-240-B-21(c) (1977); Mich.Comp. Laws § 125.36 (1970); N.D.Cent.Code § 11-35-02 (1976), a power not afforded Alabama municipalities. See Roberson v. City of Montgomery, 285 Ala. 421, 233 So.2d 69 (1970). By setting forth these various state provisions respecting extraterritorial powers of cities, we do not mean to imply that every one of them would pass constitutional muster. We do not have before us, of course, a situation in which a city has annexed outlying territory in all but name, and is exercising precisely the same governmental powers over residents of surrounding unincorporated territory as it does over those residing within its corporate limits. See Little Thunder v. South Dakota, 518 F.2d 1253 (CA8 1975). Nor do we have here a case like Evans v. Cornman, supra, where NIH residents were subject to such "important aspects of state powers" as Maryland's authority "to levy and collect [its] income, gasoline, sales, and use taxes" and were "just as interested in and connected with electoral decisions as . . . their neighbors who live[d] off the enclave." 398 U.S., at 423, 424, 426, 90 S.Ct., at 1756, 1757. Appellants have made neither an allegation nor a showing that the authority exercised by the city of Tuscaloosa within the police jurisdiction is no less than that exercised by the city within its corporate limits. The minute catalog of ordinances of the city of Tuscaloosa which have extraterritorial effect set forth by our dissenting Brethren, post, at 82-84, n. 10, is as notable for what it does not include as for what it does. While the burden was on appellants to establish a difference in treatment violative of the Equal Protection Clause, we are bound to observe that among the powers not included in the "addendum" to appellants' brief referred to by the dissent are the vital and traditional authorities of cities and towns to levy ad valorem taxes, invoke the power of eminent domain, and zone property for various types of uses. 1 I recognize that there is a difference between a suburb's decision to contract with a nearby city and a decision by the state legislature requiring all suburbs to do so. In some situations that difference might justify a holding that a particular extraterritorial delegation of power is unconstitutional. It does not, however, justify the view that all such delegations are invalid. 2 28 U.S.C. § 2281 (1970 ed.), repealed by Pub.L. 94-381, § 1, Aug. 12, 1976, 90 Stat. 1119. 1 At the time this lawsuit commenced, this statute was codified at Ala.Code, Tit. 37, § 9 (1958). 2 At the time appellants filed their complaint, this statute was found at Ala.Code, Tit. 37, § 733 (1958). Minor changes in wording were effected during recodification. 3 Alabama Code, Tit. 37, § 585 (1958) provided: "It shall be the duty of the recorder to keep an office in the city, and hear and determine all cases for the breach of the ordinances and by-laws of the city that may be brought before him, and he shall make report, at least once a month, of all fines, penalties and forfeitures imposed by him, or by any councilman in his stead. Such recorder is especially vested with and may exercise in the city and within the police jurisdiction thereof, full jurisdiction in criminal and quasi criminal matters, and may impose the penalties prescribed by ordinance for the violation of ordinances and by-laws of the city, and shall have the power of an ex-officio justice of the peace, except in civil matters. . . ." 4 On December 27, 1973, recorder's courts were abolished in Alabama and replaced by municipal courts having virtually identical jurisdiction. See Ala.Code § 12-14-1 (1975). Municipal judges "shall be appointed and vacancies filled by the governing body of the municipality . . .." Ala.Const., Amdt. No. 328, § 6.065. 5 Tuscaloosa contains 65,773 residents, while the police jurisdiction surrounding the city contains between 16,000 and 17,000 residents. See App. 17-19. 6 See n. 4, supra. 7 The court granted appellants leave "to further amend within 45 days to specify particular ordinances of the City of Tuscaloosa which are claimed to deprive plaintiffs of liberty or property." 8 "[S]tatutes structuring local government units receive no less exacting an examination merely because the state legislature is fairly elected. See Avery v. Midland County, 390 U.S. 474, 481 n. 6, 88 S.Ct. 1114, 1118, 20 L.Ed.2d 45 (1968)." Kramer v. Union Free School Dist., 395 U.S., at 628 n. 10, 89 S.Ct., at 1890. 9 The Court apparently accepts this proposition by strongly implying, ante, at 73 n. 8, that "a situation in which a city has annexed outlying territory in all but name, and is exercising precisely the same governmental powers over residents of surrounding unincorporated territory as it does over those residing within its corporate limits" would not "pass constitutional muster." 10 Appellants have included in their brief an unchallenged addendum listing the ordinances of the city of Tuscaloosa, Code of Tuscaloosa (1962, Supplemented, 1975), that have application in its police jurisdiction: "Licenses: 4-1 ambulance 9-4, 9-18, 9-33 bottle dealers 19-1 junk dealers 20-5 general business license ordinance 20-67 florists 20-102 hotels, motels, etc. 20-163 industry "Buildings: 10-1 inspection service enforces codes 10-10 regulation of dams 10-21 Southern Standard Building Code adopted 10-25 building permits 13-3 National Electrical Code adopted 14-23 Fire Prevention Code adopted 14-65 regulation of incinerators 14-81 discharge of cinders Chapter 21A mobile home parks 25-1 Southern Standard Plumbing Code adopted 33-79 disposal of human waste 33-114, 118 regulation of wells 'Public Health: 5-4 certain birds protected 5-4C, 42, 55 dogs running at large and bitches in heat prohibited 14-4 no smoking on buses 14-15 no self-service gas stations 15-2 regulation of sale of produce from trucks 15-4 food establishments to use public water supply 15-16 food, meat, milk inspectors 15-37 thru 40 regulates boardinghouses 15-52 milk code adopted 17-5 mosquito control 'Traffic Regulations: 22-2 stop & yield signs may be erected by chief of police 22-3 mufflers required 22-4 brakes required 22-5 inspection of vehicle by police 22-6 operation of vehicle 22-9 hitchhiking in roadway prohibited 22-9.1 permit to solicit funds on roadway 22-11 impounding cars 22-14 load limit on bridges 22-15 police damage stickers required after accident 22-25 driving while intoxicated 22-26 reckless driving 22-27 driving without consent of owner 22-33 stop sign 22-34 yield sign 22-38 driving across median 22-40 yield to emergency vehicle 22-42 cutting across private property 22-54 general speed limit 22-72 thru 78 truck routes "Criminal Ordinances: 23-1 adopts all state misdemeanors 23-7.1 no wrecked cars on premises 23-15 nuisances 23-17 obscene literature 23-20 destruction of plants 23-37 swimming in nude 23-38 trespass to boats 26-51 no shooting galleries in the police jurisdiction or outside fire limits (downtown area) 28-31 thru 39 obscene films "Miscellaneous: 20-120 thru 122 cigarette tax 24-31 public parks and recreation 26-18 admission tax Chapter 29 regulates public streets 30-23 taxis must have meters. 11 See Comment, The Constitutionality of the Exercise of Extraterritorial Powers by Municipalities, 45 U.Chi.L.Rev. 151 (1977).

12

439 U.S. 32 99 S.Ct. 368 58 L.Ed.2d 269 DOUGHERTY COUNTY, GEORGIA, BOARD OF EDUCATION et al.,v.WHITE. No. 77-120. Argued Oct. 2-3, 1978. Decided Nov. 28, 1978. Syllabus Shortly after appellee, a Negro employee of the Dougherty County Board of Education, announced his candidacy for the Georgia House of Representatives, the Board adopted a requirement (Rule 58) that its employees take unpaid leaves of absence while campaigning for elective political office. As a consequence of Rule 58, appellee, who sought election to the Georgia House on three occasions, was forced to take leave and lost over $11,000 in salary. When compelled to take his third leave of absence, appellee brought this action in District Court, alleging that Rule 58 was unenforceable because it had not been precleared under § 5 of the Voting Rights Act of 1965 (Act). Concluding that Rule 58 had the "potential for discrimination," the District Court enjoined its enforcement pending compliance with § 5. Held : 1. Rule 58 is a "standard, practice, or procedure with respect to voting" within the meaning of § 5 of the Act. Pp. 36-43. (a) Informed by the legislative history and the Attorney General's interpretation of § 5, this Court has consistently given the phrase "standard, practice, or procedure with respect to voting" the "broadest possible scope," and has construed it to encompass any state enactments altering the election law of a covered State "in even a minor way," Allen v. State Board of Elections, 393 U.S. 544, 566, 89 S.Ct. 817, 832, 22 L.Ed.2d 1. Pp. 37-40. (b) Rule 58, like a filing fee, imposes substantial economic disincentives on employees who seek elective public office, and the circumstances surrounding its adoption and its effect on the political process suggest a potential for discrimination. Pp. 40-43. 2. A county school board, although it does not itself conduct elections, is a political subdivision within the purview of the Act when it exercises control over the electoral process. United States v. Board of Comm'rs of Sheffield, 435 U.S. 110, 98 S.Ct. 965, 55 L.Ed.2d 148. Pp. 43-47. 431 F.Supp. 919, affirmed. Jesse W. Walters, Albany, N. Y., for appellants. John R. Myer, Atlanta, Ga., for appellee. Lawrence G. Wallace, Washington, D. C., for the United States, as amicus curiae, in support of appellee. Mr. Justice MARSHALL delivered the opinion of the Court. 1 Under § 5 of the Voting Rights Act of 1965,1 all States and political subdivisions covered by § 4 of the Act2 must submit any proposed change affecting voting, for preclearance by the Attorney General or the District Court for the District of Columbia. At issue in this appeal is whether a county board of education in a covered State must seek approval of a rule requiring its employees to take unpaid leaves of absence while they campaign for elective office. Resolution of this question necessitates two related inquiries: first, whether a rule governing leave for employee candidates is a "standard, practice, or procedure with respect to voting" within the meaning of § 5 of the Voting Rights Act; and second, whether a county school board is a "political subdivision" within the purview of the Act. 2 * The facts in this case are not in dispute. Appellee, a Negro, is employed as Assistant Coordinator of Student Personnel Services by appellant Dougherty County Board of Education (Board). In May 1972, he announced his candidacy for the Georgia House of Representatives. Less than a month later, on June 12, 1972, the Board adopted Rule 58 without seeking prior federal approval. Rule 58 provides: 3 "POLITICAL OFFICE. Any employee of the school system who becomes a candidate for any elective political office, will be required to take a leave of absence, without pay, such leave becoming effective upon the qualifying for such elective office and continuing for the duration of such political activity, and during the period of service in such office, if elected thereto." 4 Appellee qualified as a candidate for the Democratic primary in June 1972, and was compelled by Rule 58 to take a leave of absence without pay. After his defeat in the August primary, appellee was reinstated. Again in June 1974, he qualified as a candidate for the Georgia House and was forced to take leave. He was successful in both the August primary and the November general election. Accordingly, his leave continued through mid-November 1974. Appellee took a third leave of absence in June 1976, when he qualified to run for re-election. When it became clear in September that he would be unopposed in the November 1976 election, appellee was reinstated.3 As a consequence of those mandatory leaves, appellee lost pay in the amount of $2,810 in 1972, $4,780 in 1974, and $3,750 in 1976. 5 In June 1976, appellee filed this action in the Middle District of Georgia alleging that Rule 58 was a "standard, practice, or procedure with respect to voting" adopted by a covered entity and therefore subject to the preclearance requirements of § 5 of the Act.4 Appellee averred that he was the first Negro in recent memory, perhaps since Reconstruction, to run for the Georgia General Assembly from Dougherty County. The Board did not contest this fact, and further acknowledged that it was aware of no individual other than appellee who had run for public office while an employee of the Dougherty County Board of Education. 6 On cross motions for summary judgment, the three-judge District Court held that Rule 58 should have been submitted for federal approval before implementation. 431 F.Supp. 919 (1977). In so ruling, the court correctly declined to decide the ultimate question that the Attorney General or the District of Columbia court would face on submission of the Rule for preclearance under § 5—whether the change in fact had a discriminatory purpose or effect. See Perkins v. Matthews, 400 U.S. 379, 383-385, 91 S.Ct. 431, 434-435, 27 L.Ed.2d 476 (1971). Rather, the District Court confined its review to the preliminary issue whether Rule 58 had the "potential" for discrimination and hence was subject to § 5. Georgia v. United States, 411 U.S. 526, 534, 93 S.Ct. 1702, 1707, 36 L.Ed.2d 472 (1973). In concluding that the Rule did have such potential, the District Court interpreted Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), and Georgia v. United States, supra, to mandate preclearance of any modification by a covered State or political subdivision "which restricts the ability of citizens to run for office." 431 F.Supp., at 922. The court reasoned that Rule 58 was such a modification because: 7 "By imposing a financial loss on [Board] employees who choose to become candidates, [the Rule] makes it more difficult for them to participate in the democratic process and, consequently, restricts the field from which the voters may select their representatives." Ibid. 8 The District Court therefore enjoined enforcement of Rule 58 pending compliance with the preclearance requirements of § 5. We noted probable jurisdiction. 435 U.S. 921, 98 S.Ct. 1482, 55 L.Ed.2d 514 (1978). Since we find Allen v. State Board of Elections, supra, and United States v. Board of Comm'rs of Sheffield, 435 U.S. 110, 98 S.Ct. 965, 55 L.Ed.2d 148 (1978), dispositive of the issues presented in this appeal, we affirm. II 9 Section 5 provides that whenever a covered State or political subdivision "shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964," it may not implement that change until it either secures a determination from the District Court for the District of Columbia that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color" or submits the change to the Attorney General and he interposes no objection within 60 days. 42 U.S.C. § 1973c (emphasis added). Although § 14(c)(1) expansively defines the term "voting" to "include all action necessary to make a vote effective," 79 Stat. 445, 42 U.S.C. § 1973l (c)(1), the Act itself nowhere amplifies the meaning of the phrase "standard, practice, or procedure with respect to voting." Accordingly, in our previous constructions of § 5, we have sought guidance from the history and purpose of the Act. A. 10 This Court first considered the scope of the critical language of § 5 in Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), involving consolidated appeals in three cases from Mississippi and one from Virginia. After canvassing the legislative history of the Act, we concluded that Congress meant "to reach any state enactment which altered the election law of a covered State in even a minor way." 393 U.S., at 566, 89 S.Ct., at 832.5 Conceived after "nearly a century of systematic resistance to the Fifteenth Amendment," South Carolina v. Katzenbach, 383 U.S. 301, 328, 86 S.Ct. 803, 818, 15 L.Ed.2d 769 (1966),6 the Voting Rights Act was, as Allen emphasized, "aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race." 393 U.S., at 565, 89 S.Ct. at 831 (footnote omitted). To effectuate the "articulated purposes of the legislation," id., at 570, 89 S.Ct. at 835, the Allen Court held that the phrase "standard, practice, or procedure" must be given the "broadest possible scope," id., at 567, 89 S.Ct. at 832, and construed it to encompass candidate qualification requirements. Id., at 570, 89 S.Ct. at 834 (Whitley v. Williams, companion case decided with Allen, supra ). The Court concluded that any enactment which burdens an independent candidate by "increasing the difficulty for [him] to gain a position on the general election ballot" is subject to § 5 since such a measure could "undermine the effectiveness" of voters who wish to elect nonaffiliated representatives. 393 U.S., at 570, 89 S.Ct., at 834. 11 In subsequent cases interpreting § 5, we have consistently adhered to the principles of broad construction set forth in Allen. In Hadnott v. Amos, 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1969), this Court held that an Alabama statute requiring independent candidates to declare their intention to seek office two months earlier than under prior procedures imposed "increased barriers" on candidacy and therefore warranted § 5 scrutiny. 394 U.S., at 366, 89 S.Ct., at 1105. Similarly in contexts other than candidate qualification, we have interpreted § 5 expansively to mandate preclearance for changes in the location of polling places, Perkins v. Matthews, supra; alterations of municipal boundaries, Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245 (1975); Petersburg v. United States, 410 U.S. 962, 93 S.Ct. 1441, 35 L.Ed.2d 698 (1973), summarily aff'g 354 F.Supp. 1021 (DC 1972); Perkins v. Matthews, supra; and reapportionment and redistricting plans, Georgia v. United States, supra. 12 Had Congress disagreed with this broad construction of § 5, it presumably would have clarified its intent when re-enacting the statute in 1970 and 1975. Yet, as this Court observed in Georgia v. United States, "[a]fter extensive deliberations in 1970 on bills to extend the Voting Rights Act, during which the Allen case was repeatedly discussed, the Act was extended for five years, without any substantive modification of § 5." 411 U.S., at 533, 93 S.Ct. at 1707 (footnote omitted). Again in 1975, both the House and Senate Judiciary Committees, in recommending extension of the Act, noted with approval the "broad interpretations to the scope of Section 5" in Allen and Perkins v. Matthews. S.Rep.No.94-295, p. 16 (1975) (hereinafter S.Rep.); H.R.Rep.No.94-196, p. 9 (1975) (hereinafter H.R.Rep); U.S.Code Cong. & Admin.News 1975, p. 774. Confirming the view of this Court, the Committee Reports stated, without qualification, that "[s]ection 5 of the Act requires review of all voting changes prior to implementation by the covered jurisdictions." S.Rep. 15; H.R.Rep. 8, U.S.Code Cong. & Admin.News 1975, p. 781 (emphasis added). 13 The Attorney General's regulations, in force since 1971, reflect an equally inclusive understanding of the reach of § 5. They provide that "[a]ll changes affecting voting, even though the change appears to be minor or indirect," must be submitted for prior approval. 28 C.F.R. § 51.4(a) (1977). More particularly, the regulations require preclearance of "[a]ny alteration affecting the eligibility of persons to become or remain candidates or obtain a position on the ballot in primary or general elections or to become or remain officeholders." § 51.4(c)(4). Pursuant to these regulations, the Attorney General, after being apprised of Rule 58, requested its submission for § 5 clearance.7 Given the central role of the Attorney General in formulating and implementing § 5, this interpretation of its scope is entitled to particular deference. United States v. Board of Comm'rs of Sheffield, 435 U.S., at 131, 98 S.Ct., at 979; Perkins v. Matthews, 400 U.S., at 391, 91 S.Ct., at 438. See Georgia v. United States, 411 U.S., at 536-539, 93 S.Ct., at 1708-1710. B 14 Despite these consistently expansive constructions of § 5, appellants contend that the Attorney General and District Court erred in treating Rule 58 as a "standard, practice, or procedure with respect to voting" rather than as simply "a means of getting a full days work for a full days pay—nothing more and nothing less." Brief for Appellants 20. In appellants' view, Congress did not intend to subject all internal personnel measures affecting political activity to federal superintendence. 15 The Board mischaracterizes its policy. Rule 58 is not a neutral personnel practice governing all forms of absenteeism. Rather, it specifically addresses the electoral process, singling out candidacy for elective office as a disabling activity. Although not in form a filing fee, the Rule operates in precisely the same fashion. By imposing substantial economic disincentives on employees who wish to seek elective office, the Rule burdens entry into elective campaigns and, concomitantly, limits the choices available to Dougherty County voters. Given the potential loss of thousands of dollars by employees subject to Rule 58, the Board's policy could operate as a more substantial inhibition on entry into the elective process than many of the filing-fee changes involving only hundreds of dollars to which the Attorney General has successfully interposed objections.8 That Congress was well aware of these objections is apparent from the Committee Reports supporting extension of the Act in 1975. S.Rep. 16-17; H.R.Rep. 10, U.S.Code Cong. & Admin.News 1975, pp. 782-783.9 16 In Georgia v. United States, we observed that "[s]ection 5 is not concerned with a simple inventory of voting procedures, but rather with the reality of changed practices as they affect Negro voters." 411 U.S., at 531, 93 S.Ct. at 1706. The reality here is that Rule 58's impact on elections is no different from that of many of the candidate qualification changes for which we have previously required preclearance. See Hadnott v. Amos, 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1969); Allen, 393 U.S., at 551, 89 S.Ct., at 824.10 Moreover, as a practical matter, Rule 58 implicates the political process to the same extent as do other modifications that this Court and Congress have recognized § 5 to encompass, such as changes in the location of polling places, Perkins v. Matthews, and alterations in the procedures for casting a write-in vote, Allen v. State Board of Elections, supra. 17 We do not, of course, suggest that all constraints on employee political activity affecting voter choice violate § 5. Presumably, most regulation of political involvement by public employees would not be found to have an invidious purpose or effect. Yet the same could be said of almost all changes subject to § 5. According to the most recent figures available, the Voting Rights Section of the Civil Rights Division processes annually some 1,800 submissions involving over 3,100 changes and interposes objections to less than 2%. Attorney General Ann.Rep. 159-160 (1977). Approximately 91% of these submissions receive clearance without further exchange of correspondence. Tr. of Oral Arg. 53. Thus, in determining if an enactment triggers § 5 scrutiny, the question is not whether the provision is in fact innocuous and likely to be approved, but whether it has a potential for discrimination. See Georgia v. United States, supra, at 534, 93 S.Ct. at 1707; Perkins v. Matthews, supra, 400 U.S., at 383-385, 91 S.Ct., at 434-435; Allen v. State Board of Elections, supra, at 555-556, n. 19, 558-559, 570-571, 89 S.Ct. at 826, n. 19, 827-828, 834. 18 Without intimating any views on the substantive question of Rule 58's legitimacy as a nonracial personnel measure, we believe that the circumstances surrounding its adoption and its effect on the political process are sufficiently suggestive of the potential for discrimination to demonstrate the need for preclearance. Appellee was the first Negro in recent years to seek election to the General Assembly from Dougherty County, an area with a long history of racial discrimination in voting.11 Less than a month after appellee announced his candidacy, the Board adopted Rule 58, concededly without any prior experience of absenteeism among employees seeking office. That the Board made its mandatory leave-of-absence requirement contingent on candidacy rather than on absence during working hours underscores the Rule's potential for inhibiting participation in the electoral process.12 19 Plainly, Rule 58 erects "increased barriers" to candidacy as formidable as the filing date changes at issue in Hadnott v. Amos, supra, at 366, 89 S.Ct. at 1105 (2 months), and Allen v. State Board of Elections, supra, at 551, 89 S.Ct. at 824 (20 days). To require preclearance of Rule 58 follows directly from our previous recognition that § 5 must be given "the broadest possible scope," Allen v. State Board of Elections, supra, at 567, 89 S.Ct., at 832, encompassing the "subtle, as well as the obvious," forms of discrimination. 393 U.S., at 565, 89 S.Ct., at 831. Informed by similarly expansive legislative and administrative understandings of the perimeters of § 5, we hold that obstacles to candidate qualification such as the Rule involved here are "standard[s], practice[s], or procedure[s] with respect to voting." III 20 Section 5 applies to all changes affecting voting made by "political subdivision[s]" of States designated for coverage pursuant to § 4 of the Act. Although acknowledging that the Board is a political subdivision under state law,13 appellants contend that it does not meet the definition of that term as employed in the Voting Rights Act. They rely on § 14(c)(2) of the Act, 79 Stat. 445, 42 U.S.C. § 1973l (c)(2), which defines "political subdivision" as 21 "any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting." 22 Because the Board is neither a county, parish, nor entity which conducts voter registration, appellants maintain that it does not come within the purview of § 5. 23 This contention is squarely foreclosed by our decision last Term in United States v. Board of Comm'rs of Sheffield, 435 U.S. 110, 98 S.Ct. 765, 55 L.Ed.2d 148 (1978). There, we expressly rejected the suggestion that the city of Sheffield was beyond the ambit of § 5 because it did not itself register voters and hence was not a political subdivision as the term is defined in § 14(c)(2) of the Act. Rather, the "language, structure, history, and purposes of the Act persuade[d] us that § 5, like the constitutional provisions it is designed to implement, applies to all entities having power over any aspect of the electoral process within designated jurisdictions . . ." 435 U.S., at 118, 98 S.Ct. at 972. Accordingly, we held that once a State has been designated for coverage, § 14(c)(2)'s definition of political subdivision has no "operative significance in determining the reach of § 5." 435 U.S., at 126, 98 S.Ct., at 976. 24 Appellants attempt to distinguish Sheffield on the ground that the Board, unlike the city of Sheffield, does not itself conduct elections. Since the Board has no direct responsibilities in conjunction with the election of public officials, appellants argue that it does not "exercise control" over the voting process, id., at 127, 98 S.Ct. at 977, and is not therefore subject to § 5. 25 Sheffield provides no support for such a cramped reading of the term "control." Our concern there was that covered jurisdictions could obviate the necessity for preclearance of voting changes by the simple expedient of "allowing local entities that do not conduct voter registration to control critical aspects of the electoral process." 435 U.S., at 125, 98 S.Ct., at 976. We thus held that the impact of a change on the elective process, rather than the adopting entity's registration responsibilities, was dispositive of the question of § 5 coverage. Here, as the discussion in Part II, supra, indicates, a political unit with no nominal electoral functions can nonetheless exercise power over the process by attaching a price tag to candidate participation. Appellants' analysis would hence achieve what Sheffield sought to avert; it would enable covered jurisdictions to circumvent the Act by delegating power over candidate qualification to local entities that do not conduct elections or voter registration. A State or political subdivision, byde facto delegation, "thereby could achieve through its instrumentalities what it could not do itself without preclearance." 435 U.S., at 139, 98 S.Ct., at 983 (POWELL, J., concurring in judgment). If only those governmental units with official electoral obligations actuate the preclearance requirements of § 5, the Act would be "nullif[ied] . . . in a large number of its potential applications." 435 U.S., at 125, 98 S.Ct., at 976 (footnote omitted). 26 Nothing in the language or purpose of the Act compels such an anomalous result. By its terms, § 5 requires preclearance whenever a political subdivision within a covered State adopts a change in a standard, practice, or procedure with respect to voting. No requirement that the subdivision itself conduct elections is stated in § 5 and none is fairly implied.14 As this Court has observed, § 5 of the Voting Rights Act reflects Congress' firm resolve to end "the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century." South Carolina v. Katzenbach, 383 U.S., at 308, 86 S.Ct., at 808. Whether a subdivision adopting a potentially discriminatory change has some nominal electoral functions bears no relation to the purpose of § 5. That provision directs attention to the impact of a change on the electoral process, not to the duties of the political subdivision that adopted it. To make coverage under § 5 turn on whether the State has confided in the Dougherty County Board of Education some formal responsibility for the conduct of elections, when the Board clearly has the power to affect candidate participation in those elections, would serve no purpose consonant with the objectives of the federal statutory scheme. 27 Nor would appellants' interpretation of § 5 comport with any ascertainable congressional intent. The legislative history of the 1975 extension, the statute which is controlling here, leaves no doubt but that Congress intended all electoral changes by political entities in covered jurisdictions to trigger federal scrutiny. Both the supporters and opponents of the proposed extension appear to have shared the common understanding that under § 5 no covered jurisdiction may enforce a change affecting voting without obtaining prior approval. See Hearings on S. 407 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 75-76 (1975) (testimony of Arthur Flemming, Chairman of the U. S. Commission on Civil Rights) (e. g., § 5 applies "to changes in voting laws, practices, and procedures that affect every stage of the political process"); Hearings on H.R. 939 et al. before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 94th Cong., 1st Sess., 19 (1975) (testimony of Arthur Flemming); 121 Cong.Rec. 23744 (1975) (remarks of Sen. Stennis) ("Any changes, so far as election officials [are] concerned, which [are] made in precincts, county districts, school districts, municipalities, or State legislatures . . . [have] to be submitted"); id., at 24114 (remarks of Sen. Allen). Moreover, both the House and Senate Committees and witnesses at the House and Senate Hearings referred to § 5's past and prospective application to school districts. See, e. g., 121 Cong.Rec. 23744 (1975) (remarks of Sen. Stennis); Hearings on S. 407, supra, at 467-470 (testimony of George Korbel, EEOC Regional Attorney); Hearings on H.R. 939, supra, at 387 -390 (testimony of George Korbel); S.Rep. 27-28; H.R.Rep. 19-20, U.S.Code Cong. & Admin.News 1975, pp. 793-794. Yet none of these discussions suggests that direct supervision of elections by a school board is a prerequisite to its coverage under the Act. To the contrary, a fair reading of the legislative history compels the conclusion that Congress was determined in the 1975 extension of the Act to provide some mechanism for coping with all potentially discriminatory enactments whose source and forms it could not anticipate but whose impact on the electoral process could be significant. Rule 58 is such a change. 28 Because we conclude that Rule 58 is a standard, practice, or procedure with respect to voting enacted by an entity subject to § 5, the judgment of the District Court is 29 Affirmed. 30 Mr. Justice STEWART dissents for the reasons expressed in Part I of the dissenting opinion of Mr. Justice POWELL. 31 Mr. Justice STEVENS, concurring. 32 Although I remain convinced that the Court's construction of the statute does not accurately reflect the intent of the Congress that enacted it, see United States v. Board of Comm'rs of Sheffield, 435 U.S. 110, 140-150, 98 S.Ct. 965, 984-988, 55 L.Ed.2d 148 (STEVENS, J., dissenting), Mr. Justice MARSHALL has demonstrated that the rationale of the Court's prior decisions compels the result it reaches today. Accordingly, I join his opinion for the Court. 33 Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting. 34 Today the Court again expands the reach of the Voting Rights Act of 1965, ruling that a local board of education with no authority over any electoral system must obtain federal clearance of its personnel rule requiring employees to take leaves of absence while campaigning for political office. The Court's ruling is without support in the language or legislative history of the Act. Moreover, although prior decisions of the Court have taken liberties with this language and history, today's decision is without precedent. * Standard, Practice, or Procedure 35 Section 5 requires federal preclearance before a "political subdivision" of a State covered by § 4 of the Act may enforce a change in "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting . . ." This provision marked a radical departure from traditional notions of constitutional federalism, a departure several Members of this Court have regarded as unconstitutional.1 Indeed, the Court noted in the first case to come before it under the Act that § 5 represents an "uncommon exercise of congressional power," South Carolina v. Katzenbach, 383 U.S. 301, 334, 86 S.Ct. 803, 822, 15 L.Ed.2d 769 (1966), and the Justice Department has conceded in testimony before Congress that it is a "substantial departure . . . from ordinary concepts of our federal system." Hearings on S. 407 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 536 (1975) (testimony of Stanley Pottinger, Asst. Atty. Gen., Civil Rights Division). 36 Congress tempered the intrusion of the Federal Government into state affairs, however, by limiting the Act's coverage to voting regulations. Indeed, the very title of the Act shows that the Act's thrust is directed to the protection of voting rights. Section 2 forbids the States to use any "voting qualification or prerequisite to voting, or standard, practice, or procedure" (emphasis added) to deny anyone the right to vote on account of race. Similarly, § 4 sharply curtails the rights of certain States to use "tests or devices" as prerequisites to voting eligibility, "[T]est or device" is defined in § 4(c), 42 U.S.C. § 1973b(c), as 37 "any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class." (Emphasis added.) 38 Finally, § 5 requires preclearance only of "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting " (emphasis added).2 39 The question under this language, therefore, is whether Rule 58 of the Board pertains to voting. Contrary to the suggestion of the Court's opinion, see ante, at 42-43, the answer to this question turns neither on the Board's possible discrimination against the appellee, nor on the potential of enactments such as Rule 58 for use as instruments of racial discrimination. Section 5 by its terms is not limited to that have a potential for discriminatory use; rather, it extends to all regulations with respect to voting, regardless of their purpose or potential uses. The affected party's race was conceded by counsel to be irrelevant in determining whether Rule 58 pertains to voting, see Tr. of Oral Arg. 25-27; nor is the timing of the adoption of Rule 58 of any significance. Indeed, in stating his cause of action under the Act, the appellee does not allege any discrimination on the basis of race.3 Yet the Court, in holding that Rule 58 is subject to the preclearance requirements of § 5, relies on a perceived potential for discrimination. In so doing, the Court simply disregards the explicit scope of § 5 and relies upon factors that the parties have conceded to be irrelevant.4 40 Separated from all mistaken references to racial discrimination, the Court's holding that Rule 58 is a "standard, practice, or procedure with respect to voting" is difficult to understand. It tortures the language of the Act to conclude that this personnel regulation, having nothing to do with the conduct of elections as such, is state action "with respect to voting." No one is denied the right to vote; nor is anyone's exercise of the franchise impaired. 41 To support its interpretation of § 5, the Court has constructed a tenuous theory, reasoning that, because the right to vote includes the right to vote for whoever may wish to run for office, any discouragement given any potential candidate may deprive someone of the right to vote. In constructing this theory, ante, at 41, the Court relies upon Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Hadnott v. Amos, 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1969); and Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969)—cases that involved explicit barriers to candidacy, such as the filing fees held to violate the Fourteenth Amendment in Bullock. The Court states that the "reality here is that Rule 58's impact on elections is no different from that of many of the candidate qualification changes for which we have previously required preclearance." Ante, at 41. But the notion that a State or locality imposes a "qualification" on candidates by refusing to support their campaigns with public funds is without support in reason or precedent. 42 As no prior § 5 decision arguably governs the resolution of this case, the Court draws upon broad dictum that, taken from its context, is meaningless.5 For example, in Allen v. State Board of Elections, supra, 393 U.S., at 566, 89 S.Ct., at 832, the Court suggested that § 5 would require clearance of "any state enactment which alter[s] the election law of a covered State in even a minor way." Even if the language in Allen were viewed as necessary to the Court's holding in that case, it would not support today's decision. In Allen, as in each of the cases relied upon today,6 the Court was considering an enactment relating directly to the way in which elections are conducted: either by structuring the method of balloting, setting forth the qualifications for candidates, or determining who shall be permitted to vote. These enactments could be said to be "with respect to voting" in elections. Rule 58, on the other hand, effects no change in an election law or in a law regulating who may vote or when and where they may do so. It is a personnel rule directed to the resolution of a personnel problem: the expenditure of public funds to support the candidacy of an employee whose time and energies may be devoted to campaigning, rather than to counseling schoolchildren. 43 After extending the scope of § 5 beyond anything indicated in the statutory language or in precedent, the Court attempts to limit its holding by suggesting that Rule 58 somehow differs from a "neutral personnel practice governing all forms of absenteeism," as it "specifically addresses the electoral process." See ante at 40. Thus, the Court intimates that it would not require Rule 58 to be precleared if the rule required Board employees to take unpaid leaves of absence whenever an extracurricular responsibility required them frequently to be absent from their duties—whether that responsibility derived from candidacy for office, campaigning for a friend who is running for office, fulfilling civic duties, or entering into gainful employment with a second employer. The Court goes on, however, to give as the principal reason for extension of § 5 to Rule 58 the effect of such rules on potential candidates for office. What the Court fails to note is that the effect on a potential candidate of a "neutral personnel practice governing all forms of absenteeism" is no less than the effect of Rule 58 as enacted by the Dougherty County School Board. Thus, under a general absenteeism provision the appellee would go without pay just as he did under Rule 58; the only difference would be that Board employees absent for reasons other than their candidacy would join the appellee on leave. Under the Court's rationale, therefore, even those enactments making no explicit reference to the electoral process would have to be cleared through the Attorney General or the District Court for the District of Columbia. Indeed, if the Court truly means that any incidental impact on elections is sufficient to trigger the preclearance requirement of § 5, then it is difficult to imagine what sorts of state or local enactments would not fall within the scope of that section.7 II Political Subdivision 44 Section 5 requires federal preclearance only of those voting changes that are adopted either by a State covered under § 4 or by a "political subdivision" of such a State. Although § 14(c)(2) of the Act restricts the term "political subdivision" to state institutions that "conduc[t] registration for voting," last Term the Court ruled that the preclearance requirement of § 5 applied to the city of Sheffield, Ala., which is without authority to register voters. See United States v. Board of Comm'rs of Sheffield, 435 U.S. 110, 98 S.Ct. 965, 55 L.Ed.2d 148 (1978). Sheffield had been given authority, however, to undertake a substantial restructuring of the method by which its government officials would be selected.8 Thus, pursuant to a voter referendum, Sheffield had changed from a commission to a mayor-council form of government. Councilmen were to be elected at large, but would run for numbered seats corresponding to the two council seats given each of the city's four wards. 45 The Court held that Sheffield was a political subdivision, in spite of its lack of authority to register voters. Today the Court states that appellants' "contention is squarely foreclosed by our decision last term" in Sheffield. Ante, at 44. The contention that this local school board is not a political subdivision under the Act is foreclosed only because the Court now declares it to be so, as neither the holding nor the rationale of Sheffield applies to this case. The Sheffield decision was based on two grounds, neither of which is present here. First, the Sheffield Court relied upon "congressional intent" as derived from "the Act's structure," "the language of the Act," "the legislative history of . . . enactment and re-enactments," and "the Attorney General's consistent interpretations of § 5." 435 U.S., at 117-118, 98 S.Ct., at 972. Second, the Court based its decision on the frustration of the Act's basic policy that would result if a State could circumvent the Act's provisions by simply withdrawing the power to register voters from all or selected cities, counties, parishes, or other political subdivisions.9 46 There is nothing in the language, structure, or legislative history of the Act that suggests it was Congress' intent that local entities such as the Board were to fall within the reach of § 5; nor has the Court cited any "consistent interpretation" of § 5 by the Attorney General that supports the Court's holding.10 Looking to the structure of the Act, the Court argues that whether a subdivision has electoral responsibilities is of no consequence in determining whether § 5 is applicable. Ante, at 45-46. Rather, it is said that this provision "directs attention to the impact of a change on the electoral process, not to the duties of the political subdivision that adopted it." Ibid. Neither Sheffield nor any other decision of the Court suggests that § 5 applies to the actions of every local entity however remote its powers may be with respect to elections and voting. Indeed, the Court indicated the importance of direct power over elections in Sheffield when it repeatedly emphasized Sheffield's "power over the electoral process."11 See, e. g., 435 U.S., at 118, 120, 122, 127, 98 S.Ct., at 972, 973, 974, 977. A rational application of Sheffield would require consideration of whether the entity enacting a change had a substantial measure of authority over the way in which elections were held or over the right to vote. The city of Sheffield had such authority; the Dougherty County School Board does not. 47 Although professing to find support in the legislative history of the Act, the Court cites no committee report or statement by any supporter of the Act that suggests a congressional intention to require federal preclearance of actions by local entities that are powerless to exercise any control over elections or voting. The Court does try to connect § 5 to school boards by references to legislative history that are entirely irrelevant. The Court neglects to make clear that each of these references pertained to a school board enacting changes in the way its members were elected, something the Dougherty County School Board is without authority to do.12 See 121 Cong.Rec. 23744 (1975) (remarks of Sen. Stennis) ("Any changes, so far as election officials were concerned, which were made in precincts, county districts, school districts, municipalities, or State legislatures . . . had to be submitted"); Hearings on S. 407 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 467-470 (1975) (school board enacting changes from ward to at-large elections for its members); S.Rep.No.94-295, p. 27 (1975); U.S.Code Cong. & Admin.News 1975, p. 793 (school boards in Texas adopting "[e]lection law changes" to avoid election of minority groups to school boards). 48 Furthermore, the Sheffield Court's concern over the possible circumvention of the Act is inapposite here, as the Board (unlike the city of Sheffield) has no authority to regulate the electoral process. There can be no danger, therefore, that substantial restructuring of the electoral system will take place in Dougherty County without the scrutiny of either the Attorney General or the District Court for the District of Columbia. 49 Thus, none of the factors relied upon in Sheffield is present in this case: There is no relevant "language of the Act," nothing in the "Act's structure," nothing in its "legislative history," and no "consistent interpretation of § 5" by the Attorney General to support the extension of § 5 to the Board's enactments. Nor is it possible that a local school board that is without authority over the electoral process will be used to circumvent the Act's basic policy. There simply is no parallel in fact or governmental theory between a city like Sheffield and the Dougherty County School Board. 50 Finding no support for its decision in the rationale of Sheffield, the Court falls back upon language in that opinion that "all entities having power over any aspect of the electoral process" are subject to § 5—language merely expressing a conclusion drawn from a consideration of the factors present in Sheffield, but absent here.13 The Board has no "power over any aspect of the electoral process" in the normal sense of these words. It did not purport by Rule 58 to regulate the appellee's election to the Georgia House of Representatives; it has been given no authority under Georgia law to do so. Rather, the Board merely has said to its employees that, if they choose to run for any elective office, the Board will not affirmatively support their campaign by paying their wages despite the neglect of their duties that inevitably will occur. Such neutral action designed to protect the public fisc hardly rises to the level of "power over . . . the election process." 51 In sum, I would reverse the judgment below on either or both of two grounds. The Dougherty County School Board is not a "political subdivision" within the meaning of the Act. Even if it were deemed to be such, the personnel rule at issue is not a standard practice, or procedure "with respect to voting." As respectful as I am of my Brothers' opinions, I view the Court's decision as simply a judicial revision of the Act, unsupported by its purpose, statutory language, structure, or history. 1 79 Stat. 439, as amended, 42 U.S.C. § 1973c. Section 5 provides in part: "Whenever a State or political subdivision with respect to which the prohibitions set forth in [§ 4(a) of the Act] based upon determinations made under the first sentence of [§ 4(b) of the Act] are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, . . . such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, . . . and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. . . . " 2 79 Stat. 438, as amended, 42 U.S.C. § 1973b. Georgia has been designated a covered jurisdiction pursuant to § 4. 30 Fed.Reg. 9897 (1965). 3 The Solicitor General and counsel for appellants advise us that appellee was also on unpaid leave during his participation in the annual 21/2-month sittings of the Georgia General Assembly in 1975, 1976, 1977, and 1978. Brief for United States as Amicus Curiae 4 n. 1; Tr. of Oral Arg. 6. Appellee did not challenge this application of Rule 58 below. We therefore do not consider whether preclearance is required for a policy governing mandatory leaves during the interval in which an employee is actually absent due to legislative responsibilities. 4 Jurisdiction was predicated on 42 U.S.C. § 1973c, 28 U.S.C. § 2284 and 28 U.S.C. § 1343. See Allen v. State Board of Elections, 393 U.S. 544, 554-563, 89 S.Ct. 817, 825-830, 22 L.Ed.2d 1 (1969). 5 For example, we noted that Attorney General Katzenbach, who played a substantial role in drafting the Act, testified that the term "practice" in § 5 "was intended to be all-inclusive . . . ." Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., pt. 1, 192 (1965), U.S.Code Cong. & Admin.News 1965, p. 2437, quoted in Allen v. State Board of Elections, supra, at 566-567, and n. 31, 89 S.Ct. at 832-833. 6 The protean strategies of racial discrimination that led Congress to adopt the Voting Rights Act have been often discussed by this Court, see United States v. Board of Comm'rs of Sheffield, 435 U.S. 110, 118-121, 98 S.Ct. 965, 972-974, 55 L.Ed.2d 148 (1978); South Carolina v. Katzenbach, 383 U.S., at 308-315, 86 S.Ct., at 808-811, and need not be reviewed here. 7 Shortly before the commencement of this litigation, counsel for appellee brought Rule 58 to the attention of the Civil Rights Division of the Department of Justice. Two and one-half months after appellee filed his complaint, Assistant Attorney General Pottinger informed the Superintendent of the Dougherty County School System that Rule 58 should be submitted for preclearance. Appellants made no response. 8 See U. S. Commission on Civil Rights, The Voting Rights Act: Ten Years After 134-137 (1975) (e. g., $360 fee for Commissioner in Mobile, Alabama, in 1973; $818 fee for Mayor in Rock Hill, South Carolina, in 1973). 9 In addition, the Committees relied heavily on findings by the United States Commission on Civil Rights in The Voting Rights Act: Ten Years After, supra, at 131-142, a document which reviewed at some length the barriers to qualification, including filing fees, faced by minority candidates. See S.Rep. 21, 24; H.R.Rep. 12, 16, U.S.Code Cong. & Admin.News 1975, pp. 787, 790. 10 As this Court has recognized in its decisions invalidating certain filing-fee schemes under the Fourteenth Amendment, "we would ignore reality" were we not to acknowledge that a financial barrier to candidacy "falls with unequal weight on voters, as well as candidates," since it "tends to deny some voters the opportunity to vote for a candidate of their choosing." Bullock v. Carter, 405 U.S. 134, 144, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972) (filing fees of $1,424.60 for County Commissioner, $1,000 for Commissioner of General Land Office, and $6,300 for County Judge). See also Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974) (filing fee of $701.60 for County Supervisor). 11 For a review of voting rights litigation in the city of Albany, the county seat of Dougherty County containing 80% of its population, see Paige v. Gray, 399 F.Supp. 459, 461-463 (MD Ga.1975), vacated in part, 538 F.2d 1108 (CA5 1976), on remand, 437 F.Supp. 137, 149-158 (MD Ga.1977). 12 The dissent suggests, post. at 53, that Rule 58 is directed only towards barring "the expenditure of public funds to support the candidacy of an employee whose time and energies may be devoted to campaigning, rather than counseling schoolchildren." Insofar as the Board is concerned about its employees' failure to discharge their contractual obligations while standing for office, it has a variety of means to vindicate its interest. The Board may, for example, prescribe regulations governing absenteeism, or may terminate or suspend the contracts of employees who willfully neglect their professional responsibilities. See Ga.Code § 32-2101c (1975); Ransum v. Chattooga County Board of Education, 144 Ga.App. 783, 242 S.E.2d 374 (1978). What it may not do is adopt a rule that explicitly and directly burdens the electoral process without preclearance. 13 See Ga.Code §§ 32-901, 23-1716 (1975); Campbell v. Red Bud Consolidated School Dist., 186 Ga. 541, 548, 198 S.E. 225, 229 (1938); Ty Ty Consolidated School Dist. v. Colquitt Lumber Co., 153 Ga. 426, 427, 112 S.E. 561 (1922). 14 Section 4(a) makes continued coverage under the Act turn on whether discriminatory tests or devices have been used "anywhere in the territory" of a State or political subdivision for a prescribed number of years. 79 Stat. 438, as amended, 42 U.S.C. § 1973b(a). In Sheffield, we concluded that the territorial reach of the substantive requirements of § 5 was meant to be coterminous with the jurisdictional provisions of § 4(a). 435 U.S., at 120-129, 98 S.Ct., at 973-978. 1 Mr. Justice Black believed that the preclearance requirement of § 5 "so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal power almost meaningless." See South Carolina v. Katzenbach, 383 U.S. 301, 358, 86 S.Ct. 803, 834, 15 L.Ed.2d 769 (1966) (concurring and dissenting opinion). Other Members of the Court also have expressed misgivings. See Allen v. State Board of Elections, 393 U.S. 544, 586, and n. 4, 89 S.Ct. 817, 842, 22 L.Ed.2d 1 (1969) (Harlan, J., concurring and dissenting); Holt v. Richmond, 406 U.S. 903 (1972) (BURGER, C. J., concurring); Georgia v. United States, 411 U.S. 526, 545, 93 S.Ct. 1702, 1713, 36 L.Ed.2d 472 (1973) (POWELL, J., dissenting). But decisions of the Court have held the Act to be constitutional. 2 In § 14(c)(1) of the Act, 42 U.S.C. § 1973l (c)(1), the terms "vote" and "voting" are defined to "include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this subchapter, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election." 3 Appellee's first cause of action alleged only: "The actions of the defendants complained of herein are in violation of the Voting Rights Act of 1965, 42 U.S.C. Sec. 1971, et seq., in that defendants have instituted a 'voting qualification or prerequisite to vote, or standard, practice or procedure with respect to voting different from that in force or effect on November 1, 1964' without submitting or obtaining the required approval of either the United States Attorney General or the United States District Court for the District of Columbia, as required by Section Five of the Voting Rights Act of 1965. Defendants are a 'covered jurisdiction' within the meaning of the Voting Rights Act." The appellee also set forth claims under the Fourteenth and Fifteenth Amendments and under 42 U.S.C. § 1983. Under these causes of action, the appellee alleged discrimination on the basis of race. The appellee's race and the timing of Rule 58's adoption by the Board may be probative in establishing whether the Board acted unconstitutionally in enacting Rule 58. But these causes of action were not addressed by the District Court and are not before us. 4 To be sure, the purpose of the Voting Rights Act was to "banish the blight of racial discrimination in voting" in selected States. See South Carolina v. Katzenbach, supra, at 308, 86 S.Ct., at 808. To this end, Congress imposed an unlimited proscription on activities affecting the voting rights of others by making it a crime under § 11 of the Act for anyone to "intimidate, threaten, or coerce any person for voting . . . or for urging . . . any person to vote." 42 U.S.C. § 1973i(b). Unlike § 5, § 11 is not limited to devices identifiable as voting regulations. On the other hand, § 2 does not deal with every voting standard, practice, or procedure, but rather is limited to voting procedures that deny someone the right to vote. Thus, although Congress had but one purpose, it used different methods to reach its ends. Under § 5, Congress required preclearance of all changes in voting laws—irrespective of their intent, effect, or potential use. 5 The Court also relies upon the Attorney General's interpretation of the Act for its holding today. See ante, at 39-40. Thus, the Court quotes language in the Attorney General's regulations that "[a]ny alteration affecting the eligibility of persons to become or remain candidates . . ." must be precleared. Ante, at 39. Nothing in Rule 58, however, affected the appellee's eligibility to become or remain a candidate for the Georgia House of Representatives. As the Attorney General's regulations do not state with specificity whether a personnel rule concerning wages paid to candidates is a regulation "with respect to voting" under § 5, these regulations are of no assistance in the case at hand. Although the Attorney General now demands that Rule 58 be cleared, there is no indication that this action accords with a longstanding policy of the Justice Department. Indeed, the Solicitor General admits that "the Attorney General has had little experience with provisions such as [the] appellant[s'] . . . Rule 58." See Brief for United States as Amicus Curiae 14. Under these circumstances, the Court's purported deference to the Attorney General's position—apparently voiced for the first time in this case—is a makeweight. 6 The actions presented to the Court in Allen were a decision to change from district to at-large elections, an enactment to make the Superintendent of Schools an appointive position, and a stiffening of the qualifications required of independent candidates. See Allen v. State Board of Elections, 393 U.S., at 550-552, 89 S.Ct., at 823-825. Similarly, the other cases to which the Court alludes involved voting regulations: Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245 (1975) (annexation); Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973) (reapportionment); Petersburg v. United States, 410 U.S. 962, 93 S.Ct. 1441, 35 L.Ed.2d 698 (1973) (annexations); Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971) (annexation and redistricting); Hadnott v. Amos, 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1969) (requirements for independent candidates). Because Allen and its progeny involved only enactments directly pertaining to voting regulation, the implicit ratification of these decisions by Congress in 1970 and 1975 has no bearing on the case at hand. 7 Little imagination is required to anticipate one possible result of today's decision: In States covered by the Act, public employees at every level of state government may "declare their candidacy" for elective office, thereby avoiding their duties while drawing their pay. It will be answered, of course, that personnel regulations adopted to close this "loophole" can be submitted to the Attorney General for his approval. Indeed, the Government's amicus brief in this case appears to foreclose the possibility that the Department of Justice would rule these trivialities to be proscribed by the Act. There are thousands of local governmental bodies, however: school boards, planning commissions, sanitary district commissions, zoning boards, and the like. Many of these may choose the easier course of allowing employees this privilege at the taxpayers' expense, rather than going through the unwelcome and often frustrating experience of clearing each personnel regulation through the federal bureaucracy. Even if most of these bodies eventually will prevail in implementing their regulations, the fact that they may do so only at sufferance of the Federal Government runs counter to our most basic notions of local self-government. See n. 1, supra. 8 See Ala.Code, Tit. 11, §§ 44-150 to 44-162 (1975). 9 I joined in the judgment of the Court in Sheffield for similar reasons: "I believe today's decision to be correct under this Court's precedents and necessary in order to effectuate the purposes of the Act, as construed in Allen and Perkins. In view of these purposes it does not make sense to limit the preclearance requirement to political units charged with voter registration. . . . [S]uch a construction of the statute would enable covered States or political subdivisions to allow local entities that do not conduct voter registration to assume responsibility for changing the electoral process. A covered State or political subdivision thereby could achieve through its instrumentalities what it could not do itself without preclearance." 435 U.S., at 139, 98 S.Ct. at 983. 10 Indeed, in discussing whether the Dougherty County Board of Education is a "political subdivision" covered by § 5, the Court makes no reference whatsoever to any interpretation of the Act by the Attorney General. Thus, what the Court found to be a "compelling argument" for extending the preclearance requirement to the city of Sheffield, see Sheffield, 435 U.S., at 131, 98 S.Ct., at 979, is wholly absent here. 11 In relying upon the Act's structure for its interpretation of § 5, the Court in Sheffield made much of the scope of § 4(a) and the need to read § 5 "in lock-step with § 4." See 435 U.S., at 122, 98 S.Ct., at 974 (quoting Allen v. State Board of Elections, 393 U.S., at 584, 89 S.Ct., at 841 (Harlan, J., concurring and dissenting)). Thus, the Court concluded that § 5 must apply to any entity with control over the electoral system, because § 4(a) proscribes the use of literacy tests and similar devices, and any entity with control over the electoral system could use such devices. Under this analysis, the Board should not come within the scope of § 5, as it has no power to use a test or device to deprive anyone of the right to vote. 12 The Dougherty County Board of Education has no authority over any aspect of an electoral system. The Georgia State Constitution charges the Board with administering the public school system within Dougherty County, Georgia. See Ga.Code § 2-5302 (Supp.1977). The five members of the Board are appointed by the County Grand Jury for terms of five years, and have powers limited to establishing and maintaining a public school system. 13 Today the Court concludes that any state entity empowered to adopt "potentially discriminatory enactments" with an effect on elections is a "political subdivision" for purposes of the Act. The Court also construes every such potentially discriminatory enactment to be a "standard, practice, or procedure" under § 5. Thus, although the Court professes to be deciding two different questions, it telescopes them into one: Every entity empowered to enact a standard, practice, or procedure with respect to voting (that is, a regulation that may be viewed as potentially discriminatory) by definition is a political subdivision subject to § 5.

12

439 U.S. 89 99 S.Ct. 399 58 L.Ed.2d 354 UNION PACIFIC RAILROAD CO.v.Kermit Kimball SHEEHAN. No. 78-344. Dec. 4, 1978. Rehearing Denied Jan. 22, 1979. See 439 U.S. 1135, 99 S.Ct. 1060. PER CURIAM. 1 Petitioner, the Union Pacific Railroad Co., discharged respondent for violating one of its employee work rules. Respondent thereupon began an action in state court alleging wrongful discharge and denial of a fair hearing. While that claim was pending in state court, we decided Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972), overruling Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089 (1941). Andrews held that a railroad employee alleging a violation of a collective-bargaining agreement must submit such a dispute to the National Railroad Adjustment Board for resolution in accordance with the provisions of the Railway Labor Act, 44 Stat. (part 2) 577, as amended, 45 U.S.C. §§ 151-188. Following our decision in Andrews, respondent and Union Pacific stipulated to dismissal of the state-court suit and the case was dismissed without prejudice. Respondent then instituted a proceeding before the Adjustment Board. After full written submissions by both parties and two hearings, the Adjustment Board dismissed respondent's claim because he had failed to file his appeal to the Adjustment Board within the time limits prescribed by the collective-bargaining agreement. 2 After the Adjustment Board dismissed his claim, respondent filed a complaint in the United States District Court for the District of Utah, seeking an order directing the Adjustment Board to hear the merits of his case, or, in the alternative, for reinstatement and a money judgment. Jurisdiction in the District Court was based upon § 3 First (q) of the Act, 45 U.S.C. § 153 First (q).1 Respondent claimed that the time requirements of the collective-bargaining agreement were tolled during the pendency of his state-court action and that the Adjustment Board should be required to hear and decide his claim on the merits. While admitting that respondent had "persuasively argued for tolling the time limits," the District Court nonetheless affirmed the Adjustment Board's order and awarded summary judgment to petitioner. The court held that respondent had failed to demonstrate the existence of any of the grounds for reversal of an Adjustment Board decision set forth in § 153 First (q), and that there was no "legal principle under which it [could] grant [respondent] relief without violating the provisions of the Railway Labor Act." 423 F.Supp. 324, 329 (1976). 3 The Court of Appeals for the Tenth Circuit reversed the District Court and remanded the case to the Adjustment Board. 576 F.2d 854 (1978). At the beginning of its opinion, the court stated: 4 "The real issue here is whether the Board's determination that it lacked jurisdiction because of non-compliance with the limitations in the modified collective bargaining agreement deprived Sheehan of his due process rights. 5 "We conclude the Board's failure to address the merits of plaintiff Sheehan's claim denied him due process. . . ." Id., at 855-856. 6 The court then canvassed prior decisions concerning the Railway Labor Act, and recognized that these cases had established that the scope of judicial review of Adjustment Board decisions is "among the narrowest known to the law." Nonetheless, the court believed it "possible" that the extent of judicial review of "purely legal issues" decided by the Adjustment Board should be re-examined in light of the "implications arising from, and the developments since" our decision in Andrews. Id., at 856. The court then concluded as follows: 7 "As the district court noted, a persuasive argument can be made for the tolling of time limits. The court in Andrews expressed the view that an agreement under the Railway Labor Act was a federal contract governed and enforceable by federal law in the federal courts. . . . The applicability of equitable tolling to the agreement in question is not in doubt. While we do not pass on the merits of the tolling issue, we hold the failure of the Board to consider tolling under these circumstances deprived Sheehan of an opportunity to be heard in violation of his right to due process." Id., at 857.2 8 If the Court of Appeals' remand was based on its view that the Adjustment Board had failed to consider respondent's equitable tolling argument, the court was simply mistaken. The record shows that respondent tendered the tolling claim to the Adjustment Board, which considered it and explicitly rejected it. App. to Pet. for Cert. 22.3 If, on the other hand, the Court of Appeals intended to reverse the Adjustment Board's rejection of respondent's equitable tolling argument, the court exceeded the scope of its jurisdiction to review decisions of the Adjustment Board. 9 Judicial review of Adjustment Board orders is limited to three specific grounds: (1) failure of the Adjustment Board to comply with the requirements of the Railway Labor Act; (2) failure of the Adjustment Board to conform, or confine, itself to matters within the scope of its jurisdiction; and (3) fraud or corruption. 45 U.S.C. § 153 First (q). Only upon one or more of these bases may a court set aside an order of the Adjustment Board. See Andrews v. Louisville & Nashville R. Co., 406 U.S., at 325, 92 S.Ct., at 1565; Locomotive Engineers v. Louisville & Nashville R. Co., 373 U.S. 33, 38, 83 S.Ct. 1059, 10 L.Ed.2d 172 (1963). There is no suggestion of fraud or corruption here. And the Adjustment Board certainly was acting within its jurisdiction and in conformity with the requirements of the Act by determining the question of whether the time limitation of the governing collective-bargaining agreement was tolled by the filing of respondent's state-court action. Respondent does not contend otherwise. Accordingly, we agree with the District Court that respondent simply failed to demonstrate the existence of any of the grounds for review set forth in § 153 First (q). 10 Characterizing the issue presented as one of law, as the Court of Appeals seemed to do here, does not alter the availability or scope of judicial review: The dispositive question is whether the party's objections to the Adjustment Board's decision fall within any of the three limited categories of review provided for in the Railway Labor Act. Section 153 First (q) unequivocally states that the "findings and order of the [Adjustment Board] shall be conclusive on the parties" and may be set aside only for the three reasons specified therein. We have time and again emphasized that this statutory language means just what it says. See, e. g., Gunther v. San Diego & A. E. R. Co., 382 U.S. 257, 263, 86 S.Ct. 368, 371, 15 L.Ed.2d 308 (1965); Locomotive Engineers v. Louisville & Nashville R. Co., supra, 373 U.S., at 38, 83 S.Ct., at 1062; Union Pacific R. Co. v. Price, 360 U.S. 601, 616, 79 S.Ct. 1351, 1359, 3 L.Ed.2d 1460 (1959). And nothing in our opinion in Andrews suggests otherwise. The determination by the Adjustment Board that respondent had failed to file his appeal within the time limits prescribed by the governing collective-bargaining agreement is one which falls within the above-quoted language precluding judicial review. 11 A contrary conclusion would ignore the terms, purposes and legislative history of the Railway Labor Act. In enacting this legislation, Congress endeavored to promote stability in labor-management relations in this important national industry by providing effective and efficient remedies for the resolution of railroad-employee disputes arising out of the interpretation of collective-bargaining agreements. See Gunther v. San Diego & A. E. R. Co., supra; Union Pacific R. Co. v. Price, supra; Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795 (1950). The Adjustment Board was created as a tribunal consisting of workers and management to secure the prompt, orderly and final settlement of grievances that arise daily between employees and carriers regarding rates of pay, rules and working conditions. Union Pacific R. Co. v. Price, supra, at 611, 79 S.Ct., at 1356; Elgin J. & E. R. Co. v. Burley, 327 U.S. 661, 664, 66 S.Ct. 721, 722, 90 L.Ed. 928 (1946). Congress considered it essential to keep these so-called "minor" disputes within the Adjustment Board and out of the courts. Trainmen v. Chicago, R. & I. R. Co., 353 U.S. 30, 40, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957). The effectiveness of the Adjustment Board in fulfilling its task depends on the finality of its determinations. Normally finality will work to the benefit of the worker: He will receive a final administrative answer to his dispute; and if he wins, he will be spared the expense and effort of time-consuming appeals which he may be less able to bear than the railroad. Union Pacific R. Co. v. Price, supra, at 613-614, 79 S.Ct., at 1358-1359. Here, the principle of finality happens to cut the other way. But evenhanded application of this principle is surely what the Act requires. 12 The Adjustment Board determined that respondent had not filed his appeal within the time requirements of the collective-bargaining agreement. That decision is final and binding upon the parties, and neither the District Court nor the Court of Appeals had authority to disturb it. The motion of the respondent for leave to proceed in forma pauperis and the petition for certiorari are therefore granted, and the judgment of the Court of Appeals is 13 Reversed. 14 Mr. Justice BRENNAN and Mr. Justice MARSHALL concur in the result. 1 Section 153 First (q) provides, in pertinent part: "If any employee or group of employees, or any carrier is aggrieved by the failure of any division of the Adjustment Board to make an award in a dispute referred to it, or is aggrieved by any of the terms of an award or by the failure of the division to include certain terms in such award, then such employee or group of employees or carrier may file in any United States district court in which a petition under paragraph (p) could be filed, a petition for review of the division's order . . .. The court shall have jurisdiction to affirm the order of the division, or to set it aside, in whole or in part, or it may remand the proceedings to the division for such further action as it may direct. On such review, the findings and order of the division shall be conclusive on the parties, except that the order of the division may be set aside, in whole or in part, or remanded to the division, for failure of the division to comply with the requirements of this chapter, for failure of the order to conform, or confine itself, to matters within the scope of the division's jurisdiction, or for fraud or corruption by a member of the division making the order. The judgment of the court shall be subject to review as provided in sections 1291 and 1254 of title 28." 2 The Court of Appeals rejected respondent's request for attorney's fees because 45 U.S.C. § 153 First (q), the section on which jurisdiction in the District Court was premised, does not provide for an award of attorney's fees. 576 F.2d, at 857-858. In his brief in opposition to the petition for a writ of certiorari, respondent urges this Court to reverse the decision of the Court of Appeals on the issue of attorney's fees and to award him attorney's fees incurred in this Court and the courts below. The question whether the Court of Appeals correctly rejected respondent's claim for attorney's fees is not properly before the Court since respondent did not file a cross-petition for certiorari. FEA v. Algonquin SNG, Inc., 426 U.S. 548, 560 n. 11, 96 S.Ct. 2295, 2302, 49 L.Ed.2d 49 (1976); see Mills v. Electric Auto-Lite Co., 396 U.S. 375, 381 n. 4, 90 S.Ct. 616, 620 n. 4, 24 L.Ed.2d 593 (1970). And we reject respondent's request for attorney's fees in this Court. He bases his claim for fees in this Court upon 45 U.S.C. § 153 First (p). Without passing upon the propriety of respondent's reliance on subsection (p), it is sufficient to state that this subsection authorizes an award of attorney's fees only if the "petitioner shall finally prevail" and that in view of our holding today, respondent has failed to triumph. 3 In support of its dismissal of respondent's appeal, the Adjustment Board stated: "Nor do we agree with [respondent] that the time limits did not commence running until the Utah court dismissed claimant's breach of contract suit in November, 1972. Filing of the civil suit did not have the effect of obviating the time limits in the [collective-bargaining] Agreement. When claimant decided to pursue his remedies with this Board he was obligated to do so in the manner prescribed in the applicable Agreement in effect on the property. Since he failed to comply with the time limits of the Agreement, we have no standing to decide the merits of the claim and we are constrained to dismiss the claim for non compliance [sic] with the applicable time limits." App. to Pet. for Cert. 22.

89

439 U.S. 96 99 S.Ct. 403 58 L.Ed.2d 361 NEW MOTOR VEHICLE BOARD OF the State of CALIFORNIA et al., Appellants,v.ORRIN W. FOX CO. et al. NORTHERN CALIFORNIA MOTOR CAR DEALERS ASSOCIATION et al., Appellants, v. ORRIN W. FOX CO. et al. Nos. 77-837, 77-849. Argued Oct. 3-4, 1978. Decided Dec. 5, 1978. Syllabus The California Automobile Franchise Act (Act) requires an automobile manufacturer to obtain approval of the California New Motor Vehicle Board (Board) before opening or relocating a retail dealership within the market area of an existing franchisee if the latter protests, and the Act also directs the Board to notify the manufacturer of such requirement upon the existing franchisee's filing of a protest. The Board is not required to hold a hearing on the merits of the protest before sending the notice to the manufacturer. Appellee manufacturer and proposed new and relocated franchisees, after being notified pursuant to the Act of protests from existing franchisees and before any hearings were held, brought suit challenging the constitutionality of the statutory scheme on due process grounds. A three-judge District Court held that the absence of a prior hearing requirement denied manufacturers and their proposed franchisees the procedural due process mandated by the Fourteenth Amendment. Held: 1. The statutory scheme does not violate due process. Pp. 104-108. (a) The Act does not have the effect of affording a protesting dealership a summary administrative adjudication in the form of a notice tantamount to a temporary injunction restraining the manufacturer's exercise of its right to franchise at will. The Board's notice has none of the attributes of an injunction but serves only to inform the manufacturer of the statutory scheme and of the status, pending the Board's determination, of its franchise permit application. Pp. 104-105. (b) Nor can the Board's notice be characterized as an administrative order, since it did not involve any exercise of discretion, did not find or assume any adjudicative facts, and did not terminate or suspend any right or interest that the manufacturer was then enjoying. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556; Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90, distinguished. P. 105. (c) Even if the right to franchise constituted an interest protected by due process when the Act was enacted, the California Legislature was still constitutionally empowered to enact a general scheme of business regulation that imposed reasonable restrictions upon the exercise of the right. In particular, the legislature was empowered to subordinate manufacturers' franchise rights to their franchisees' conflicting rights where necessary to prevent unfair or oppressive trade practices, and also to protect franchisees' conflicting rights through customary and reasonable procedural safeguards, i. e., by providing existing dealers with notice and an opportunity to be heard by an impartial tribunal (the Board) before their franchisor is permitted to inflict upon them grievous loss. Such procedural safeguards cannot be said to deprive the franchisor of due process. Pp. 106-108. (d) Once having enacted a reasonable general scheme of business regulation, California was not required to provide for a prior individualized hearing each time the Act's provisions had the effect of delaying consummation of the business plans of particular individuals. P. 108. 2. The statutory scheme does not constitute an impermissible delegation of state power to private citizens by requiring the Board to delay franchise establishments and relocations only when protested by existing franchisees who have unfettered discretion whether or not to protest. An otherwise valid regulation is not rendered invalid simply because those whom it is designed to safeguard may elect to forgo its protection. Pp. 108-109. 3. The Act does not conflict with the Sherman Act. Pp. 109-111. (a) The statutory scheme is a system of regulation designed to displace unfettered business freedom in establishing and relocating automobile dealerships and hence is outside the reach of the antitrust laws under the "state action" exemption. This exemption is not lost simply because the Act accords existing dealers notice and an opportunity to be heard before their franchisor is permitted to locate a dealership likely to subject them to injurious and possible illegal competition. Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035, distinguished. Pp. 109-110. (b) To the extent that there is a conflict with the Sherman Act because the Act permits dealers to invoke state power for the purpose of restraining intrabrand competition, such a conflict "cannot itself constitute a sufficient reason for invalidating the . . . statute," for "if an adverse effect on competition were, in and of itself, enough to render a state statute invalid, the States' power to engage in economic regulation, would be effectively destroyed." Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 133, 98 S.Ct. 2207, 2218, 57 L.Ed.2d 91. Pp. 110-111. 440 F.Supp. 436, reversed. Robert L. Mukai, Sacramento, Cal., for New Motor Vehicle Bd. James R. McCall, Univ. of Cal., San Francisco, Cal., for Northern Cal. Motor Car Dealers Assn. William T. Coleman, Jr., for appellees. Mr. Justice BRENNAN delivered the opinion of the Court. 1 Under the California Automobile Franchise Act, a motor vehicle manufacturer must secure the approval of the California New Motor Vehicle Board before opening a retail motor vehicle dealership within the market area of an existing franchisee, if and only if that existing franchisee protests the establishment of the competing dealership. The Act also directs the Board to notify the manufacturer of this statutory requirement upon the filing of a timely protest by an existing franchisee. The Board is not required to hold a hearing on the merits of the dealer protest before sending the manufacturer the notice of the requirement.1 2 A three-judge District Court for the Central District of California entered a judgment declaring that the absence of such a prior-hearing requirement denied manufacturers and their proposed franchisees the procedural due process mandated by the Fourteenth Amendment. 440 F.Supp. 436 (1977). We noted probable jurisdiction of the appeals in both No. 77-837 and No. 77-849,2 434 U.S. 1060, 98 S.Ct. 1230, 55 L.Ed.2d 760 (1978). We now reverse.3 3 * The disparity in bargaining power between automobile manufacturers and their dealers prompted Congress4 and some 25 States to enact legislation to protect retail car dealers from perceived abusive and oppressive acts by the manufacturers.5 California's version is its Automobile Franchise Act.6 Among its other safeguards, the Act protects the equities of existing dealers by prohibiting automobile manufacturers from adding dealerships to the market areas of its existing franchisees where the effect of such intrabrand competition would be injurious to the existing franchisees and to the public interest.7 4 To enforce this prohibition, the Act requires an automobile manufacturer who proposes to establish a new retail automobile dealership in the State, or to relocate an existing one, first to give notice of such intention to the California New Motor Vehicle Board and to each of its existing franchisees in the same "line-make" of automobile located within the "relevant market area," defined as "any area within a radius of 10 miles from the site of [the] potential new dealership."8 If any existing franchisee within the market area protests to the Board within 15 days, the Board is required to convene a hearing within 60 days to determine whether there is good cause for refusing to permit the establishment or relocation of the dealership.9 The Board is also required to inform the franchisor, upon the filing of a timely protest, 5 "that a timely protest has been filed, that a hearing is required . . . , and that the franchisor shall not establish or relocate the proposed dealership until the board has held a hearing . . . , nor thereafter, if the board has determined that there is good cause for not permitting such dealership."10 6 Violation of the statutory requirements by a franchisor is a misdemeanor and ground for suspension or revocation of a license to do business.11 7 Appellee General Motors Corp. manufactures, among other makes, Buick and Chevrolet cars. Appellee Orrin W. Fox Co. signed a franchise agreement with appellee General Motors in May 1975 to establish a new Buick dealership in Pasadena. Appellee Muller Chevrolet agreed with appellee General Motors to transfer its existing Chevrolet franchise from Glendale to La Canada, Cal., in December 1975. The proposed establishment of Fox and relocation of Muller were protested respectively by existing Buick and Chevrolet dealers. The New Motor Vehicle Board responded, as required by the Act, by notifying appellees that the protests had been filed and that therefore they were not to establish or relocate the dealerships until the Board had held the hearings required by the Act, nor thereafter if the Board determined that there was good cause for not permitting such dealerships. Before either protest proceeded to a Board hearing, however, appellees General Motors, Fox, and Muller brought the instant action. II 8 At the outset it is important to clarify the nature of the due process challenge before us. Appellees and the dissent characterize the statute as entitling a protesting dealership to a summary administrative adjudication in the form of a notice having the effect of a temporary injunction restraining appellee General Motors' exercise of its right to franchise at will. We disagree. 9 The Board's notice has none of the attributes of an injunction. It creates no duty, violation of which would constitute contempt. Nor does it restrain appellee General Motors from exercising any right that it had previously enjoyed; General Motors had no interest in franchising that was immune from state regulation. It was the Act, not the Board's notice, that curtailed General Motors' right to franchise at will. The California Vehicle Code explicitly conditions a motor vehicle manufacturer's right to terminate, open, or relocate a dealership upon the manufacturer's compliance with the procedural requirements enacted in the Automobile Franchise Act and, if necessary, upon the approval of the New Motor Vehicle Board.12 The Board's notice served only to inform appellee General Motors of this statutory scheme and to advise it of the status, pending the Board's determination, of its franchise permit applications. 10 Moreover, the Board's notice can hardly be characterized as an administrative order. Issuance of the notice did not involve the exercise of discretion. The notice neither found nor assumed the existence of any adjudicative facts. The notice did not terminate or suspend any right or interest that General Motors was then enjoying. The notice did not deprive General Motors of any personal property, or terminate any of the incidents of its license to do business. 11 Thus, this is not a case like Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), and Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), relied upon by appellees, in which a state official summarily finds or assumes the existence of certain adjudicative facts and based thereon suspends the enjoyment of an entitlement. There has not yet been either the determination of adjudicative facts, the exercise of discretion, or a suspension. 12 Notwithstanding all this, appellees argue that the state scheme deprives them of their liberty to pursue their lawful occupation without due process of law. Appellees contend that absent a prior individualized trial-type hearing they are constitutionally entitled to establish or relocate franchises while their applications for approval of such proposals are awaiting Board determination. Appellees' argument rests on the assumption that General Motors has a due process protected interest right to franchise at will—which asserted right survived the passage of the California Automobile Franchise Act. 13 The narrow question before us, then, is whether California may, by rule or statute, temporarily delay the establishment or relocation of automobile dealerships pending the Board's adjudication of the protests of existing dealers. Or stated conversely, the issue is whether, as the District Court held and the dissent argues, the right to franchise without delay is the sort of interest that may be suspended only on a case-by-case basis through prior individualized trial-type hearings. 14 We disagree with the District Court and the dissent. Even if the right to franchise had constituted a protected interest when California enacted the Automobile Franchise Act, California's Legislature was still constitutionally empowered to enact a general scheme of business regulation that imposed reasonable restrictions upon the exercise of the right. "[T]he fact that a liberty cannot be inhibited without due process of law does not mean that it can under no circumstances be inhibited." Zemel v. Rusk, 381 U.S. 1, 14, 85 S.Ct. 1271, 1279, 14 L.Ed.2d 179 (1965). At least since the demise of the concept of "substantive due process" in the area of economic regulation, this Court has recognized that, "[l]egislative bodies have broad scope to experiment with economic problems . . . ." Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963). States may, through general ordinances, restrict the commercial use of property, see Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), and the geographical location of commercial enterprises, see Williamson v. Lee Optical Co., 348 U.S. 483, 491, 75 S.Ct. 461, 466, 99 L.Ed. 563 (1955). Moreover, "[c]ertain kinds of business may be prohibited; and the right to conduct a business, or to pursue a calling, may be conditioned. . . . [S]tatutes prescribing the terms upon which those conducting certain businesses may contract, or imposing terms if they do enter into agreements, are within the state's competency." Nebbia v. New York, 291 U.S. 502, 528, 54 S.Ct. 505, 512, 78 L.Ed. 940 (1934). 15 In particular, the California Legislature was empowered to subordinate the franchise rights of automobile manufacturers to the conflicting rights of their franchisees where necessary to prevent unfair or oppressive trade practices. "[S]tates have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law. . . . [T]he due process clause is [not] to be so broadly construed that the Congress and state legislatures are put in a strait jacket when they attempt to suppress business and industrial conditions which they regard as offensive to the public welfare." Lincoln Union v. Northwestern Co., 335 U.S. 525, 536-537, 69 S.Ct. 251, 257, 93 L.Ed. 212 (1949). See alsoNorth Dakota Board of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379 (1973); Ferguson v. Skrupa, supra; Williamson v. Lee Optical Co., supra. 16 Further, the California Legislature had the authority to protect the conflicting rights of the motor vehicle franchisees through customary and reasonable procedural safeguards, i. e., by providing existing dealers with notice and an opportunity to be heard by an impartial tribunal—the New Motor Vehicle Board before their franchisor is permitted to inflict upon them grievous loss. Such procedural safeguards cannot be said to deprive the franchisor of due process. States may, as California has done here, require businesses to secure regulatory approval before engaging in specified practices. See, e. g., North Dakota Board of Pharmacy v. Snyder's Drug Stores, supra (pharmacy-operating permit); St. Louis Poster Adv. Co. v. St. Louis, 249 U.S. 269, 39 S.Ct. 274, 63 L.Ed. 599 (1919) (billboard permits); Hall v. Geiger-Jones Co., 242 U.S. 539, 37 S.Ct. 217, 61 L.Ed. 480 (1917) (securities registration); Adams v. Milwaukee, 228 U.S. 572, 33 S.Ct. 610, 57 L.Ed. 971 (1913) (milk inspection); Gundling v. Chicago, 177 U.S. 183, 20 S.Ct. 633, 44 L.Ed. 725 (1900) (cigarette sales license). 17 These precedents compel the conclusion that the District Court erred in holding that the California Legislature was powerless temporarily to delay appellees' exercise of the right to grant or undertake a Buick or Chevrolet dealership and the right to move one's business facilities from one location to another without providing a prior individualized trial-type hearing. Once having enacted a reasonable general scheme of business regulation, California was not required to provide for a prior individualized hearing each and every time the provisions of the Act had the effect of delaying consummation of the business plans of particular individuals. In the area of business regulation "[g]eneral statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule." Bi-Metallic Investment Co. v. Colorado, 239 U.S. 441, 445, 36 S.Ct. 141, 142, 60 L.Ed. 372 (1915). III 18 Appellees and the dissent argue that the California scheme constitutes an impermissible delegation of state power to private citizens because the Franchise Act requires the Board to delay franchise establishments and relocations only when protested by existing franchisees who have unfettered discretion whether or not to protest. 19 The argument has no merit. Almost any system of private or quasi-private law could be subject to the same objection. Court approval of an eviction, for example, becomes necessary only when the tenant protests his eviction, and he alone decides whether he will protest. An otherwise valid regulation is not rendered invalid simply because those whom the regulation is designed to safeguard may elect to forgo its protection. See Cusack Co. v. Chicago, 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472 (1917). IV 20 Appellees next contend that the Automobile Franchise Act conflicts with the Sherman Act, 15 U.S.C. § 1 et seq.13 They argue that by delaying the establishment of automobile dealerships whenever competing dealers protest, the state scheme gives effect to privately initiated restraints on trade, and thus is invalid under Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035 (1951). 21 The dispositive answer is that the Automobile Franchise Act's regulatory scheme is a system of regulation, clearly articulated and affirmatively expressed, designed to displace unfettered business freedom in the matter of the establishment and relocation of automobile dealerships. The regulation is therefore outside the reach of the antitrust laws under the "state action" exemption. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943); Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). See also City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978). 22 The Act does not lose this exemption simply because, as part of its regulatory framework, it accords existing dealers notice and an opportunity to be heard before their franchisor is permitted to locate a dealership likely to subject them to injurious and possibly illegal competition. Protests serve only to trigger Board action.14 They do not mandate significant delay. On the contrary, the Board has the authority to order an immediate hearing on a dealer protest if it concludes that the public interest so requires. The duration of interim restraint is subject to ongoing regulatory supervision. 23 Appellees' reliance upon Schwegmann Bros. v. Calvert Distillers Corp., supra, is misplaced. In Schwegmann, the State attempted to authorize and immunize private conduct violative of the antitrust laws. California has not done that here. Protesting dealers who invoke in good faith their statutory right to governmental action in the form of a Board determination that there is good cause for not permitting a proposed dealership do not violate the Sherman Act, Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and Mine Workers v. Pennington, 381 U.S. 657, 670, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965).15 24 Appellees also argue conflict with the Sherman Act because the Automobile Franchise Act permits auto dealers to invoke state power for the purpose of restraining intrabrand competition. "This is merely another way of STATING THAT THE . . . STATUTE WILL HAVE AN ANTICOMPETITIVE EFFECT. in this sense, there is a conflict between the statute and the central policy of the Sherman Act—'our charter of economic liberty.' . . . Nevertheless, this sort of conflict cannot itself constitute a sufficient reason for invalidating the . . . statute. For if an adverse effect on competition were, in and of itself, enough to render a state statute invalid, the States' power to engage in economic regulation would be effectively destroyed." Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 133, 98 S.Ct. 2207, 2218, 57 L.Ed.2d 91 (1978). 25 Reversed. 26 Mr. Justice MARSHALL, concurring. 27 Although I join the opinion of the Court, I write separately to emphasize why, in my view, the California Automobile Franchise Act is not violative of the Due Process Clause. As the Court observes, ante, at 100-103, the California statute, like its state and federal counterparts, seeks to redress the disparity in economic power between automobile manufacturers and their franchisees. By empowering the New Motor Vehicle Board to superintend the establishment or relocation of a franchise, the statute makes it more difficult for a manufacturer to force its franchisees to accept unfair conditions of trade by threatening to overload their markets with intrabrand competitors.1 28 This litigation arises because of the delay necessarily incident to the Board's inquiry. Given the unavoidable time lag between the filing of protests and the Board's hearing, the State had to elect whether to permit the establishment or relocation of dealerships pending the Board's determination of their legality. To enjoin temporarily the proposed transactions would deprive new dealers and their franchisors of legitimate profits in cases where the dealership was eventually approved. On the other hand, allowing the transactions to go forward would force existing franchisees to bear the burden of illegal competition in cases where the Board ultimately disapproved the new dealership. Perhaps because the policy of redressing the economic imbalance between franchisees and manufacturers would be thwarted if existing franchisees were left unprotected until the Board made its decision, the California Legislature chose the former option.2 29 Assuming appellees' interest in immediately opening or relocating a franchise implicates the Due Process Clause, I do not believe it outweighs the interest of the State in protecting existing franchisees from unfair competition and economic coercion pending completion of the Board's inquiry. See Goldberg v. Kelly, 397 U.S. 254, 262-263, 90 S.Ct. 1011, 1017-1018, 25 L.Ed.2d 287 (1970); Board of Regents v. Roth, 408 U.S. 564, 570-571, 92 S.Ct. 2701, 2705-2706, 33 L.Ed.2d 548 (1972). The state legislature has decided to impose the burdens of delay on appellees rather than on existing franchisees. In view of the substantial public interest at stake and the short lapse of time between notice and hearing, the Due Process Clause does not dictate a contrary legislative decision. 30 Mr. Justice BLACKMUN, with whom Mr. Justice POWELL joins, concurring in the result. 31 I agree with the Court when it concludes (a) that the District Court rightly refused to abstain under the rule of Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); (b) that the appellees' delegation-of-power argument is unmeritorious; and (c) that the appellees' antitrust claims are also without merit. 32 We are concerned here, basically, only with the issue of the facial constitutionality of certain provisions of the California Automobile Franchise Act, Cal.Veh.Code Ann. §§ 3062, 3063 (West Supp.1978); we are not confronted with any issue of constitutionality of the Act as applied. 33 It seems to me that we should recognize forthrightly the fact that California, under its Act, accords the manufacturer and the would-be franchisee no process at all prior to telling them not to franchise at will. This utter absence of process would indicate that the State's action is free from attack on procedural due process grounds only if the manufacturer and the franchisee possess no liberty or property interest protected under the Fourteenth Amendment. Indeed, that is the way I would analyze the case. 34 Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), of course, defined "liberty" to include "the right . . . to engage in any of the common occupations of life." The California statute, however, does not deprive anyone of any realistic freedom to become an automobile dealer or to grant a franchise; it simply regulates the location of franchises to sell certain makes of cars in certain geographical areas. The absence of regulation by California prior to the Act's adoption in 1973 surely in itself created no liberty interest susceptible of later deprivation. And the abstract expectation of a new franchise does not qualify as a property interest. 35 I regard this litigation as not focusing on procedural due process at all. Instead, it centers essentially on a claim of substantive due process. Appellees have conceded that California may legitimately regulate automobile franchises and that the State may legitimately provide a hearing as part of its regulatory scheme. The only issue, then, is whether California may declare that the status quo is to be maintained pending a hearing. In my view, California's declaration to this effect is no more than a necessary incident of its power to regulate at all. Maintenance of the status quo pending final agency action is common in many regulatory contexts. The situation here, for example, is not dissimilar to the widely adopted routine of withholding the effectiveness of announced increases in utility rates until specified conditions have been fulfilled. In asserting a right to franchise at will and a right to franchise without delay, appellees are essentially asserting a right to be free from state economic regulation. But any claim the appellees may have to be free from state economic regulation is foreclosed by the substantive due process cases, such as Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963), which the Court cites. 36 To summarize: For me, the appellees have demonstrated the presence of no liberty or property interest; having none, they have no claim to procedural safeguards; and their claim to be free from state economic regulation is foreclosed by the substantive due process cases. Perhaps this is what the Court is saying in its opinion. I am, however, somewhat unsure of that. I prefer to recognize the facts head on; when one does, the answer, it seems to me, is inevitable and immediately forthcoming. 37 Mr. Justice STEVENS, dissenting. 38 This case does not involve the constitutionality of any of the substantive rules adopted by California to govern the operation of motor vehicle dealerships and the conditions that must be satisfied to engage in that business. The case involves the validity of a procedure that grants private parties an exclusive right to cause harm to other private parties without even alleging that any general rule has been violated or is about to be violated. 39 In order to demonstrate that this is a fair characterization of this procedure, it is necessary to review the statutory scheme as a whole, to identify the purpose of the specific provision challenged in this case, and to explain the actual operation of that provision. It will then be apparent that there is no precedent for the Court's approval of this unique and arbitrary process and that the three-judge District Court was correct in concluding that it deprived appellees of their liberty and property without the due process of law guaranteed by the Fourteenth Amendment. 40 * As the Court recognizes, California's Automobile Franchise Act is a member of the family of state statutes that were enacted to protect retailers from some of the risks associated with unrestrained competition. Like the retail grocers and retail druggists who convinced so many legislatures to authorize resale price maintenance,1 and the retail gasoline dealers who convinced the Maryland Legislature to prohibit oil company ownership of service stations,2 the retail automobile dealers have been successful in persuading Congress and various state legislatures that unrestrained competition in the car business is not an unmixed blessing.3 Many States have enacted automobile dealer franchise statutes that regulate and limit competition in this business. Unquestionably, as the Court holds, the mere fact that statutory rules inhibit competition is not a reason for invalidating them.4 41 The general rules contained in the California Automobile Franchise Act are of two kinds. First, they establish standards that a dealer must satisfy in order to engage in the business in California. These standards are enforced through licensing regulations.5 Because the dealer appellees in this case are properly licensed, and because they do not question the validity of any of these rules, these standards are not relevant here. Second, there are rules regulating the contractual relationships between manufacturers and their dealers, covering such matters as franchise terminations.6 Again, these rules are not relevant because this case involves neither a termination nor any question concerning the contract between a manufacturer and an existing dealer. In sum, the substantive rules in the California statute have nothing to do with this case. 42 This case concerns only the procedure that must be followed after a licensed manufacturer and a licensed dealer have decided either to establish a new dealership or to relocate an existing dealership. The statute contains no substantive rules pertaining to the location of dealerships or the number of dealers that may operate in any given area. It includes no limitations on the manufacturer's use of the new franchise as a means of increasing its power to bargain with existing franchisees.7 Nor does it impose any burden on the manufacturer or the new dealer to obtain a license or an approval from a public agency before the new operation may commence business.8 It does not even authorize a public agency, acting on its own motion, to conduct a hearing to determine whether the new operation is desirable or undesirable.9 In short, although I assume that California is entirely free to adopt a state policy against the establishment or relocation of motor vehicle franchises, no such policy is reflected in this statute.10 43 On the contrary, the statute actually embodies a presumption in favor of new locations. That presumption, while consistent with the fact that knowledgeable businessmen do not normally make the large capital commitments associated with a new dealership unless the market will welcome the change,11 does not rest on that economic predicate. It rests on the language of the statute and its interpretation by the New Motor Vehicle Board. 44 The statute grants a curiously defined group of potential protestants—competitors within the 314-square-mile area surrounding the new location who handle the same line and make of cars—the right to demand a hearing to determine whether "there is good cause for not permitting such dealership."12 This language is repeated in two separate sections of the California statute.13 Notably, the statute does not place the burden of establishing that there is good cause to permit the dealership to go forward on the new dealer or the manufacturer;14 it places the burden of demonstrating that there is good cause not to permit the new opening to take place on the objecting dealer.15 If the scales are evenly balanced, the presumption will prevail. 45 The California Board's actual administration of the statute confirms this analysis. Of the first 117 protests filed under the law, only 1 was sustained by the Board.16 In other words, over 99% of the contested new dealerships or relocations were found to be consistent with the policy of the statute. 46 The conclusion that there is no state policy against new dealerships is further confirmed by the statutory limitation on the persons who have standing to object to a proposed new opening. Most significantly, no public agency has any independent right to initiate an objection, to schedule a hearing, or to prohibit such a change.17 Nor does any member of the consuming public have standing to complain.18 Indeed, even neighboring dealers who might be severely affected by new competition are without standing unless they handle the same line of cars as the new dealer. Finally, if a manufacturer is able—by whatever means—to persuade its dealers in the relevant area not to protest, the statutory policy will have been wholly vindicated without any action on the part of responsible state officials. 47 Properly analyzed, the statute merely confers a special benefit on a limited group of private persons who are likely to oppose the establishment or relocation of a new car dealership. Because those persons may suffer economic injury as a consequence of new competition, they are given two quite different rights. One is relatively meaningless, the other is significant. The first is an administrative right of action to try to persuade the Board that there is good cause for not permitting the new competitor to enter the market. It is obvious that this right is of little value, since less than 1% of the protests are successful. Indeed, since about two-thirds of the protests were abandoned in advance of any hearing,19 it is fair to infer that an opportunity to prevail at the hearing itself is not the primary object of the protest. 48 The second right that the statute gives to a complaining dealer is the unqualified entitlement to an order that is tantamount to a preliminary injunction absolutely prohibiting the opening of the new dealership until after the relatively meaningless hearing has been completed.20 The "injunction" issues without any showing of probable success on the merits, without any proof of irreparable harm, and without provision for a bond or other compensation to indemnify the new dealer against loss caused by the delay. The entirely uninformative words "I protest" are enough to entitle one private party to obtain an order restraining the activities of a potential competitor.21 Violation of that order subjects the manufacturer and franchisee to criminal penalties and revocation of their licenses.22 49 In sum, new franchisees and their franchisors are not merely identified by the statute as in essence a new class of parties defendant in a new class of lawsuits designed in extremely rare instances to block the franchise; rather, without assuring these "defendants" that they will receive notice of the claims against them, a probable-cause finding, or a hearing of any kind,23 the statute subjects them to an immediate injunction against the pursuit of their right to establish or relocate a car dealership upon the filing of a protest by a competitor-"plaintiff."24 50 The duration of the injunctive relief is not precisely defined by the statute,25 but the facts of these cases demonstrate that the relief may last for many months.26 In a dynamic, competitive business such delays may entirely frustrate the plans for the new dealership—as happened in one of these cases— or at least cause the new dealer to lose the opportunity to participate in a favorable market for new models. That the statutory deprivation is a temporary delay rather than a permanent denial does not avoid the serious character of the harm suffered by the new dealer while the status quo is being preserved.27 II 51 Apart from some substantive due process cases which have nothing to do with the procedural question presented by this case28 the Court cites no authority for its novel interpretation of the Fourteenth Amendment. This is hardly surprising because this summary procedure for resolving conflicts between private parties flagrantly violates the precepts embodied in the Court's prior cases. 52 Whenever one private party seeks relief against another, it is fundamental that some attention to the merits of the request must precede the granting of relief. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865. The challenged statute provides for no such consideration of the merits nor even any notice to the losing party of what the merits of the claim against him involve.29 53 It is equally fundamental that the State's power to deprive any person of liberty or property may not be exercised except at the behest of an official decisionmaker. In a somewhat different context, the Court correctly observed: 54 "[I]n the very nature of things one [private] person may not be intrusted with the power to regulate the business of another, and especially of a competitor. And a statute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property." Carter v. Carter Coal Co., 298 U.S. 238, 311, 56 S.Ct. 855, 873, 80 L.Ed. 1160. 55 More recently, the Court has applied these principles in procedural due process contexts similar to the one at issue here. For example, in Fuentes v. Shevin, 407 U.S. 67, 93, 92 S.Ct. 1983, 2001, 32 L.Ed.2d 556, the Court had this to say in invalidating a statute that enabled private parties unconditionally to exercise the State's power: 56 "The statutes, moreover, abdicate effective state control over state power. Private parties, serving their own private advantage, may unilaterally invoke state power to replevy goods from another. No state official participates in the decision to seek a writ; no state official reviews the basis for the claim to repossession; and no state official evaluates the need for immediate seizure. There is not even a requirement that the plaintiff provide any information to the court on these matters. The State acts largely in the dark."30 57 Because the New Motor Vehicle Board is given no control over a competitor's power temporarily to enjoin the establishment or relocation of a dealership, that body's authority in this respect is also wielded in the dark. The result is the unconstitutional exercise of uncontrolled government power. 58 There is no blinking the fact that the California statute gives private parties, serving their own private advantage, the unfettered ability to invoke the power of the State to restrain the liberty and impair and contractual arrangements of their new competitors. Such a statute blatantly offends the principles of fair notice, attention to the merits, and neutral dispute resolution that inform the Due Process Clause of the Fourteenth Amendment. This statute simply cannot bear the Court's creative recharacterization as a general—and substantively constitutional rule governing when and how dealerships may be established and relocated.31 Accordingly, I respectfully dissent. 1 The pertinent provisions of the Automobile Franchise Act are as follows: "3062. Establishing or relocating dealerships "(a) Except as otherwise provided in subdivision (b), in the event that a franchisor seeks to enter into a franchise establishing an additional motor vehicle dealership within a relevant market area where the same line-make is then represented, or relocating an existing motor vehicle dealership, the franchisor shall in writing first notify the Board and each franchisee in such line-make in the relevant market area of his intention to establish an additional dealership or to relocate an existing dealership within or into that market area. Within 15 days of receiving such notice or within 15 days after the end of any appeal procedure provided by the franchisor, any such franchisee may file with the board a protest to the establishing or relocating of the dealership. When such a protest is filed, the board shall inform the franchisor that a timely protest has been filed, that a hearing is required pursuant to Section 3066, and that the franchisor shall not establish or relocate the proposed dealership until the board has held a hearing as provided in Section 3066, nor thereafter, if the board has determined that there is good cause for not permitting such dealership. In the event of multiple protests, hearings may be consolidated to expedite the disposition of the issue. * * * * * "For the purposes of this section, the reopening in a relevant market area of a dealership that has not been in operation for one year or more shall be deemed the establishment of an additional motor vehicle dealership. "3063. Good cause "In determining whether good cause has been established for not entering into or relocating an additional franchise for the same line-make, the board shall take into consideration the existing circumstances, including, but not limited to: "(1) Permanency of the investment. "(2) Effect on the retail motor vehicle business and the consuming public in the relevant market area. "(3) Whether it is injurious to the public welfare for an additional franchise to be established. "(4) Whether the franchisees of the same line-make in that relevant market area are providing adequate competition and convenient consumer care for the motor vehicles of the line-make in the market area which shall include the adequacy of motor vehicle sales and service facilities, equipment, supply of vehicle parts, and qualified service personnel. "(5) Whether the establishment of an additional franchise would in- crease competition and therefore be in the public interest." Cal.Veh.Code Ann. §§ 3062, 3063 (West Supp.1978). 2 Appellants in No. 77-849 were made defendants in intervention by uncontested order of the District Court. 3 On application of appellants in No. 77-837, Mr. Justice Rehnquist stayed the District Court judgment, 434 U.S. 1345, 98 S.Ct. 359, 54 L.Ed.2d 439 (1977) (in chambers). Appellants in No. 77-837 argue that the District Court should have abstained under the rule of Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), arguing that the state courts might have construed the Automobile Franchise Act so as to limit or avoid the federal constitutional question. The District Court correctly refused to abstain. Abstention may appropriately be denied where, as here, there is no ambiguity in the challenged state statute. See Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S.Ct. 507, 511, 27 L.Ed.2d 515 (1971). 4 A congressional Committee reported in 1956: "Automobile production is one of the most highly concentrated industries in the United States, a matter of grave concern to officers of the Government charged with enforcement of the antitrust laws. Today there exist only 5 passenger-car manufacturers, 3 of which produce in excess of 95 percent of all passenger cars sold in the United States. There are approximately 40,000 franchised automobile dealers distributing to the public cars produced by these manufacturers. Dealers have an average investment of about $100,000. This vast disparity in economic power and bargaining strength has enabled the factory to determine arbitrarily the rules by which the two parties conduct their business affairs. These rules are incorporated in the sales agreement or franchise which the manufacturer has prepared for the dealer's signature. "Dealers are with few exceptions completely dependent on the manufacturer for their supply of cars. When the dealer has invested to the extent required to secure a franchise, he becomes in a real sense the economic captive of his manufacturer. The substantial investment of his own personal funds by the dealer in the business, the inability to convert easily the facilities to other uses, the dependence upon a single manufacturer for supply of automobiles, and the difficulty of obtaining a franchise from another manufacturer all contribute toward making the dealer an easy prey for domination by the factory. On the other hand, from the standpoint of the automobile manufacturer, any single dealer is expendable. The faults of the factory-dealer system are directly attributable to the superior market position of the manufacturer." S.Rep. No. 2073, 84th Cong., 2d Sess., 2 (1956). See also S. Macaulay, Law and the Balance of Power: The Automobile Manufacturers and Their Dealers (1966). 5 See Automobile Dealers' Day in Court Act, 15 U.S.C. §§ 1221-1225; Ariz.Rev.Stat.Ann. § 28-1304.02 (1976); Cal.Veh.Code Ann. § 3060 et seq. (West Supp.1978); Colo.Rev.Stat. § 12-6-120 (1973); Fla.Stat. § 320.641 (1977); Ga.Code § 84-6610(f) (Supp.1977); Haw.Rev.Stat. § 437-33 (1976); Idaho Code § 49-1901 et seq. (1967); Iowa Code § 322A.2 (1977); Md.Transp.Code Ann. § 15-207 (1977); Mass.Gen.Laws Ann., ch. 93B, § 4(3) (West Supp.1978-1979); Neb.Rev.Stat. § 60-1422 (1974); N.H.Rev.Stat.Ann. § 357-B:4 III(c) (Supp.1977); N.M.Stat.Ann. § 64-37-5 (Supp.1975); N.C.Gen.Stat. § 20-305(5)(1978); N.D.Cent.Code § 51-07-01.1 (Supp.1977); Ohio Rev.Code Ann. § 4517.41 (Supp.1977); Okla.Stat.Tit. 47, § 565(j) (Supp.1978); Pa.Stat.Ann., Tit. 63, § 805 (Purdon Supp.1978-1979); R.I.Gen.Laws § 31-5.1-4 (Supp.1977); S.C.Code § 56-15-40(3)(c) (1977); S.D.Comp.Laws Ann. § 32-6A-5 (1976); Tenn.Code Ann. § 59-1714(c) (Supp.1978); Vt.Stat.Ann., Tit. 9, § 4074 (Supp.1977-1978); Va.Code § 46.1-547 (Supp.1978); W.Va.Code § 47-17-5 (Supp.1978); Wis.Stat.Ann. § 218.01 (1957 and Supp.1978-1979). 6 California first adopted special regulations applicable to dealers and manufacturers of automobiles in 1923. 1923 Cal.Stats., ch. 266, §§ 46(a), (b). These required dealers and manufacturers to apply for certification and special identifying license plates as a condition of exemption from generally applicable registration requirements. In 1957 the former certification procedure became a licensing provision, and all automobile dealers were required to apply for licenses to qualify for and continue to hold the registration exemption. 1957 Cal.Stats., ch. 1319, § 7. In addition, it became unlawful on and after October 1, 1957, to act as a dealer without having procured a license. Ibid. The prohibition on unlicensed activity was extended to manufacturers and motor vehicle transporters by 1967 Cal.Stats., ch. 557, § 1. That statute made it unlawful for any person to act as a dealer, manufacturer or transporter of motor vehicles without a valid license and certificate issued by the Department of Motor Vehicles. § 2. The 1967 statute also created the New Motor Vehicle Board, originally empowered to handle licensing of new automobile retail dealerships and to review decisions of the Department of Motor Vehicles disciplining dealers. Its powers were expanded in 1973 by the Automobile Franchise Act to empower the Board to deal with the establishment of new franchises and the relocation of existing franchises. The California Legislature expressly stated that this Act was passed "in order to avoid undue control of the independent new motor vehicle dealer by the vehicle manufacturer or distributor and to insure that dealers fulfill their obligations under their franchises and provide adequate and sufficient service to consumers generally." 1973 Cal.Stats., ch. 996, § 1. The Act also sets forth rules and procedures governing franchise cancellations, delivery and preparation obligations and warranty reimbursement. See Cal.Veh.Code Ann. §§ 3060, 3061, 3064, and 3065 (West Supp.1978). 7 For a helpful discussion of the purpose served by such laws—the promotion of fair dealing and the protection of small business—see Forest Home Dodge, Inc. v. Karns, 29 Wis.2d 78, 138 N.W.2d 214 (1965). This concern has prompted at least 18 other States to enact statutes which, like the Automobile Franchise Act, prescribe conditions under which new or additional dealerships may be permitted in the territory of the existing dealership. See Ariz.Rev.Stat.Ann. § 28-1304.02 (1976); Colo.Rev.Stat. § 12-6-120 (1973); Fla.Stat. § 320.642 (1977); Ga.Code §§ 84-6610(f)(8), (10) (Supp.1977); Haw.Rev.Stat. §§ 437-28(a), (b)(22) (1976); Iowa Code § 322A.4 (1977); Mass.Gen.Laws.Ann., ch. 93B, § 4(3)(e)(1) (West Supp. 1978-1979); Neb.Rev.Stat. § 60-1422 (1974); N.H.Rev.Stat.Ann. § 357-B:4 III(c) (Supp.1977); N.M.Stat.Ann. § 64-37-5 (Supp.1975); N.C.Gen.Stat. § 20-305(5) (1978); R.I.Gen.Laws § 31-5.1-4(C)(11) (Supp.1977); S.D.Comp.Laws Ann. §§ 32-6A-3 to 32-6A-4 (1976); Tenn.Code Ann. § 59-1714 (Supp.1978); Vt.Stat.Ann., Tit. 9, § 4074(c)(9) (Supp.1977-1978); Va.Code § 46.1-547(d) (Supp.1978); W.Va.Code § 47-17-5(i) (Supp.1978); Wis.Stat.Ann. §§ 218.01(3), (8) (1957 and Supp.1978-1979). 8 See Cal.Veh.Code Ann. § 507 (West Supp.1978). 9 Within 30 days after the hearing, or of a decision of a hearing officer, the Board must render its decision, or the establishment or relocation of the proposed franchise is deemed approved. See Cal.Veh.Code Ann. § 3067 (West Supp.1978). 10 See n. 1, supra. 11 California Veh.Code Ann. § 11713.2 (West Supp.1978) provides: "It shall be unlawful and a violation of this code for any manufacturer, manufacturer branch, distributor, or distributor branch licensed under this code: * * * * * "(l ) To modify, replace, enter into, relocate, terminate or refuse to renew a franchise in violation of Article 4 (commencing with Section 3060) of Chapter 6 of Division 2." 12 The California Legislature expressly identified the state interests being served by the Franchise Act as "the general economy of the state and the public welfare . . ." which made it "necessary to regulate and to license vehicle dealers, [and] manufacturers . . . ." The statute states: "[T]he distribution and sale of new motor vehicles in the State of California vitally affects the general economy of the state and the public welfare and . . . in order to promote the public welfare and in the exercise of its police power, it is necessary to regulate and to license vehicle dealers, manufacturers, manufacturer branches, distributors, distributor branches, and representatives of vehicle manufacturers and distributors doing business in California in order to avoid undue control of the independent new motor vehicle dealer by the vehicle manufacturer or distributor and to insure that dealers fulfill their obligations under their franchises and provide adequate and sufficient service to consumers generally." 1973 Cal.Stats., ch. 996, § 1. 13 The District Court did not pass upon this contention. We choose to address it because the underlying facts are undisputed and the question presented is purely one of law. 14 Appellees state, without challenge by appellants: "117 protests have been filed under § 3062 since the Act became effective (July 1, 1974). Of these, only 42 have gone to a hearing on the merits, and only one has been sustained by the Board . . .. Thus, of 117 automatic temporary injunctions issued by the Board, only one ever matured into a permanent injunction." Brief for Appellees 10 n. 13. 15 Dealers who press sham protests before the New Motor Vehicle Board for the sole purpose of delaying the establishment of competing dealerships may be vulnerable to suits under the federal antitrust laws. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). 1 Although there is little legislative history on the California Act, the need for statutory constraints on manufacturers' ability to coerce their dealers is reflected in a variety of state and federal enactments. See, e. g., statutes cited ante, at 101 n.5; H.R.Rep.No.2850, 84th Cong., 2d Sess., 4-5 (1956); S.Rep.No.2073, 84th Cong., 2d Sess., 2-4 (1956); Forest Home Dodge, Inc. v. Karns, 29 Wis.2d 78, 138 N.W.2d 214 (1965). See generally S. Macaulay, Law and the Balance of Power: The Automobile Manufacturers and Their Dealers 139 (1966). The dissenting opinion, post, at 121, suggests that the right of existing franchisees to protest the entry of a new competitor is of "little value," since less than 1% of the protests were successful and two-thirds were abandoned in advance of any hearing. These figures, however, may indicate merely that the California statute has successfully served a deterrent function. In any event, the California Legislature could legitimately conclude that the "right to be heard does not depend upon an advance showing that one will surely prevail at the hearing." Fuentes v. Shevin, 407 U.S. 67, 87, 92 S.Ct. 1983, 1997, 32 L.Ed.2d 556 (1972). 2 See n.1, supra. The State may also have sought to protect aspiring franchisees from the economic loss they would incur if the Board disapproved their applications after they had commenced operations. 1 These efforts were also reflected in the Miller-Tydings Fair Trade Act, which was enacted by Congress in 1937 as an amendment to § 1 of the Sherman Act, 50 Stat. 693, 15 U.S.C. § 1. See generally Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 390-395, 71 S.Ct. 745, 748-751, 95 L.Ed. 1035. 2 See Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978). 3 The statutes currently in force are collected in the opinion of the Court. Ante, at 101 n.5. These statutes were passed essentially in three waves, the first in the late 1930's, the second in the mid-1950's and the third in the late 1960's and early 1970's. The first two waves resulted in statutes regulating the contractual relationships between dealers and manufacturers, and were primarily designed to equalize the bargaining power of the two groups. The third wave not only extended this well-established type of statute into additional States but also resulted in the passage of provisions, such as the one involved in this case, relating to the opening of new franchises. See generally C. Hewitt, Automobile Franchise Agreements 165-167 (1955); Macaulay, Law and Society—Changing a Continuing Relationship Between a Large Corporation and those who Deal with it: Automobile Manufacturers, their Dealers, and the Legal System, 1965 Wis.L.Rev. 483, 513-521; Note, 70 Harv.L.Rev. 1239, 1243-1246 (1957); Comment, 56 Iowa L.Rev. 1060 (1971). 4 By the same token, the legislative judgment that manufacturers have greater bargaining power than dealers and may have sometimes used it abusively by threatening to overload dealers' markets with intrabrand competitors does not provide a justification for a statutory procedure that deprives all manufacturers and all new dealers of their liberty and property without due process. 5 Cal.Veh.Code Ann. § 11700 (West Supp.1978). 6 §§ 3060, 3061, 3064, and 3065 (Supp.1978). 7 Cf. Haw.Rev.Stat. § 437-28(b)(22)(B) (1976); W.Va.Code § 47-17-5(i)(2) (Supp.1978). 8 Cf. Fla.Stat. § 320.642 (1977); Ga.Code § 84-6610(f)(8) (Supp.1977); Iowa Code § 322A.4 (1977); S.D.Comp.Laws Ann. §§ 32-6A-3, 32-6A-4 (1976); Tenn.Code Ann. § 59-1714(c)(20) (Supp.1978); Wis.Stat.Ann. § 218.01(3)(8) (1957). The Court cites Forest Home Dodge, Inc. v. Karns, 29 Wis.2d 78, 138 N.W.2d 214 (1965), as reflective of the purposes served by statutes such as the one at issue here. Ante, at 102 n. 7. However, the Wisconsin statute involved in the Forest Home decision is considerably different from the California statute and the purposes of the former should not be uncritically imported into the latter. The Court is similarly mistaken in its characterization of the California statute as one, like Wisconsin's, that "require[s] businesses to secure regulatory approval before engaging in specified practices." Ante, at 108 (emphasis in original). As the Court itself recognizes at an earlier point, the California statute requires approval only in certain limited circumstances, i. e., "if necessary" because of a competitor's protest. Ante, at 105. As such, the statute clearly does allow competitors to "restrain appellee[s] from exercising [a] right that [they] had previously enjoyed." Ante, at 104-105. The Court also mischaracterizes the California statute when it describes it as "prohibiting automobile manufacturers from adding dealerships to the market areas of its existing franchisees where the effect of such intrabrand competition would be injurious to the existing franchisees and to the public interest." Ante, at 102. There is no such express prohibition in the California statute. Cf. Colo.Rev.Stat. § 12-6-120 (1973); Iowa Code § 322A.4 (1977); N.M.Stat.Ann. § 64-37-5(P) (Supp.1975); S.D.Comp.Laws Ann. §§ 32-6A-3, 32-6A-4 (1976). 9 Cf. Fla.Stat. § 320.642 (1977); Ga.Code § 84-6610(f)(8) (Supp.1977); Iowa Code § 322A.4 (1977); S.D.Comp.Laws Ann. § 32-6A-4 (1976); Tenn.Code Ann. § 59-1714(c)(20) (Supp.1978); Wis.Stat.Ann. § 218.01(3)(f) (1957). 10 The statutory statement of purpose quoted by the Court, ante, at 105 n.12, includes no reference to a policy against new or relocated dealerships. By comparison, such statutes as Fla.Stat. § 320.642 (1977); Ga.Code § 84-6610(f)(8) (Supp.1977); Tenn.Code Ann. § 59-1714(c)(20) (Supp.1978); and Wis.Stat.Ann. § 218.01(3)(8) (1957), authorize public officials to deny applications for approval of new dealerships in all cases where existing dealers in the area are providing "adequate representation" of the relevant line and make of cars. 11 B. Pashigian, The Distribution of Automobiles, An Economic Analysis of the Franchise System 151 (1961); Comment, supra, n. 3, at 1065-1067. 12 California Veh.Code Ann. § 3062 (West Supp.1978) provides, in part: "When such a protest is filed, the board shall inform the franchisor that a timely protest has been filed, that a hearing is required pursuant to Section 3066, and that the franchisor shall not establish or relocate the proposed dealership until the board has held a hearing as provided in Section 3066, nor thereafter, if the board has determined that there is good cause for not permitting such dealership." (Emphasis added.) Section 507 defines the 314-square-mile area that encompasses competitors with standing to challenge new dealerships. 13 In addition to the portion of § 3062 quoted in n. 12, supra, § 3063 provides: "In determining whether good cause has been established for not entering into or relocating an additional franchise for the same line-make, the board shall take into consideration the existing circumstances, including, but not limited to: "(1) Permanency of the investment. "(2) Effect on the retail motor vehicle business and the consuming public in the relevant market area. "(3) Whether it is injurious to the public welfare for an additional franchise to be established. "(4) Whether the franchisees of the same line-make in that relevant market area are providing adequate competition and convenient consumer care for the motor vehicles of the line-make in the market area which shall include the adequacy of motor vehicle sales and service facilities, equipment, supply of vehicle parts, and qualified service personnel. "(5) Whether the establishment of an additional franchise would increase competition and therefore be in the public interest." (Emphasis added.) 14 Cf. Iowa Code § 322A.4 (1977); S.D.Comp.Laws Ann. §§ 32-6A-3, 32-6A-4 (1976). See generally Comment, supra n. 3, at 1062-1063. 15 Cal.Veh.Code Ann. § 3066(b) (West Supp.1978) ("The [existing] franchisee shall have the burden of proof to establish there is good cause not to enter into a franchise establishing or relocating an additional motor vehicle dealership.") 16 See ante, at 110 n. 14; Brief for Appellees 10 n. 13. 17 Cf. statutes cited in n. 10, supra. 18 Cf. Iowa Code § 322A.7 (1977). 19 See Brief for Appellees 10 n. 13. 20 Cal.Veh.Code Ann. §§ 3062, 3066 (West Supp.1978). 21 California's statutory scheme may be contrasted with another approach that also affords existing dealers a cause of action to block new dealerships, but does so with considerably more process. Under N.M.Stat.Ann. § 64-37-5(P) (Supp.1975), it is unlawful for a manufacturer to establish an additional franchise in a community where the same line-make is currently represented "if such addition would be inequitable to the existing dealer." The statute makes "the sales and service needs of the public" relevant "in determining the equities of the existing dealer." Existing dealers are given a private cause of action in state courts to enforce this prohibition and are expressly afforded the right to seek either an injunction, damages, or both. §§ 64-37-11, 64-37-13 (Supp.1975). It is apparent from the statute that the normal incidents of civil practice—for example, the requirement of an adequate complaint, and judicial consideration of the merits before any relief is afforded—apply in these authorized suits. See also Colo.Rev.Stat. §§ 12-6-120(1)(h), 12-6-122(3) (1973); Mass.Gen.Laws Ann., ch. 93B, § 4(3)(l ) (west supp.1978-1979). 22 Cal.Veh.Code Ann. §§ 11705(a)(3), 11705(a)(10), 11713.2(l ), 40000.11 (West Supp.1978). 23 In addition, the statute gives the "defendants" the burden in every case of informing the "plaintiffs" when their cause of action arises. 24 Put in the more traditional language of due process analysis, the California scheme recognizes a right on the part of manufacturers and prospective dealers to establish or relocate automobile dealerships. It allows the State permanently to deprive those persons of that right upon a hearing and demonstration of cause. Finally, and what is at issue here, it allows private persons to invoke the power of the State to deprive manufacturers and prospective dealers of their rights temporarily without any process at all. 25 Once a protest is filed, and an injunction has automatically been granted, Cal.Veh.Code Ann. § 3066(a) (West Supp.1978) requires the Board to set a hearing. Although the hearing must be held within 60 days under that provision, this time limit is usually avoided when the Board refers the protest to a hearing officer, upon whom no statutory time limit is imposed. Moreover, after the hearing officer reaches a decision, the Board may either take another 30 days in adopting that decision, or an indefinite period of time in reaching an independent decision. The Board may also refer the decision back to the hearing officer with directions to take additional evidence and reach a new decision. 26 "The manner in which the passage of the Act and the administration thereof have affected the present plaintiffs is revealed in the uncontradicted affidavits and documentary exhibits submitted by the parties. The only Buick dealer in Pasadena terminated his franchise early in 1974, and a replacement dealer had not been established until May 1975, when plaintiffs General Motors and Orrin W. Fox Co. executed a franchise agreement. Protests promptly were filed by Buick dealers located in the nearby cities of Monrovia and San Gabriel on about May 22, 1975. On May 29, 1975, the Board sent letters to General Motors advising of the protests and stating that 'you may not . . . establish the proposed dealership until the Board has held a hearing as provided for in Section 3066 Vehicle Code, nor thereafter if the Board has determined that there is good cause for not permitting such additional dealership.' The letter also advised that the Board would later fix a time for the hearing and would advise accordingly. On July 8, 1975, the Board assigned the dates of August 11 and 12, 1975, for the hearing. "However, as the result of requests for continuance by the protesters and by stipulation, and protracted litigation in the courts concerning the right to take prehearing depositions, the protests were reset for hearing on September 15, 1976. They therefore were still pending when the present action was filed, on April 13, 1976. "The foregoing recital shows that, under the provisions of the Act, the protesters were able to prevent plaintiff Fox from being established as a potential (although geographically rather remote) competitor for more than fifteen months (including the entire 1976 Buick model year), without any official consideration being given to the merit or lack of merit of the protests. Fox understandably assesses at many thousands of dollars its damages occasioned by such delay. "Plaintiff Muller Chevrolet took over an existing dealership in the Montrose section of Glendale in 1973. It soon became apparent to Muller that its physical facilities were completely inadequate and rapidly deteriorating and that a move to a new and much larger location was mandatory. In December 1974, Mr. Muller learned that the location of the current Volkswagen dealership in the adjacent community of La Canada might become available. Negotiations were begun that were contingent upon the Volkswagen dealer finding a new site for his operation, and upon the ability of the parties to finance their respective moves. After a year of complex and time-consuming negotiations, an agreement was reached in December 1975 and the required notice of intention to relocate was served upon the Board and the surrounding Chevrolet dealers on about January 16, 1976. A few days later, Chevrolet dealers in Pasadena and Tujunga, respectively, filed with the Board letters saying, in effect, no more than 'I protest,' and on February 6, 1976, the Board responded by enjoining the proposed relocation pending a hearing on the protests. About two weeks later, on February 23, 1976, the Board 'tentatively' set the hearing for June 23 through 25, 1976, and on April 21, 1976, issued a formal order confirming those dates. It is worthy of note here that such hearing was scheduled for a time more than four months after the injunction had been issued. "It appears from a supplemental affidavit filed by Mr. Muller on September 17, 1976, that the scheduled hearing took place before a hearing officer and that the latter rendered a decision favorable to the proposed relocation on about August 20, 1976. Then began the thirty-day waiting period within which time the Board might act upon that decision before the proposed relocation could be deemed approved and the injunction finally lifted (Vehicle Code § 3067). On September 14, 1976, before the end of such waiting period, Muller was advised that the new leasehold premises were no longer available for his dealership because of his long failure to take possession and otherwise assume the obligations of the lease. Muller thereupon 'gave up' with respect to this litigation and is starting all over again in his attempt to find a new site for his business." 440 F.Supp. 436, 439-440 (CD Cal.1977) (three-judge court). 27 Fuentes v. Shevin, 407 U.S. 67, 84, 85, 92 S.Ct. 1983, 1996, 32 L.Ed.2d 556 ("[I]t is now well settled that a temporary, nonfinal deprivation of property is nonetheless a 'deprivation' in the terms of the Fourteenth Amendment"). 28 See, e. g., Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93; Lincoln Union v. Northwestern Co., 335 U.S. 525, 536-537, 69 S.Ct. 251, 257, 93 L.Ed. 212; North Dakota Board of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379; Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563. Although the Court has distinguished between economic and other rights in giving scope to the substantive requirements of the Due Process Clause, United States v. Carolene Products Co., 304 U.S. 144, 152-153, n. 4, 58 S.Ct. 778, 784-785 n. 4, 82 L.Ed. 1234, it has carefully and explicitly avoided that distinction in applying the procedural requirements of the Clause. E. g., North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 608, 95 S.Ct. 719, 723, 42 L.Ed.2d 751; Fuentes v. Shevin, supra, 407 U.S., at 89-90, 92 S.Ct., at 1998-1999. Accordingly, I assume that, despite its curious citation of the cases that establish a low level of substantive protection for economic rights, the Court is not implying that those rights do not merit the procedural protection afforded by the Fourteenth Amendment. 29 Although the Court has endorsed the modern relaxation of pleading rules, it has never receded from the requirement that civil complaints provide parties defendant with "fair notice" of the claims against them. Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80. 30 See also Mitchell v. W. T. Grant Co., 416 U.S. 600, 615-617, 94 S.Ct. 1895, 1904, 40 L.Ed.2d 406; Gibson v. Berryhill, 411 U.S. 564, 578-579, 93 S.Ct. 1689, 1697-1698, 36 L.Ed.2d 488; Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 121-122, 49 S.Ct. 50, 51-52, 73 L.Ed. 210; Eubank v. City of Richmond, 226 U.S. 137, 143-144, 33 S.Ct. 76, 77, 57 L.Ed. 156. The Court places great store in the fact that the California Legislature, rather than some administrative or adjudicative body, stands behind the deprivation at issue in this case. Ante, at 105. But, as Fuentes indicates, a legislative abdication of power to private citizens who are prone to act arbitrarily is no less unconstitutional than the arbitrary exercise of that power by the state officials themselves. 31 Although the Court reads my opinion differently, see ante, at 106, I do not imply that there would be any constitutional defect in a statute imposing a general requirement that no dealer may open or relocate until after he has obtained an approval from a public agency. Nor do I imply that the appellees have an interest that may not be suspended except on a case-by-case basis. If, however, a State mandates a case-by-case determination of one private party's rights, the State may not confer arbitrary power to make that determination on another private party.

34

439 U.S. 128 99 S.Ct. 421 58 L.Ed.2d 387 RAKAS et al.v.ILLINOIS. No. 77-5781. Argued Oct. 3, 1978. Decided Dec. 5, 1978. Rehearing Denied Jan. 15, 1979. See 439 U.S. 1122, 99 S.Ct. 1035. Syllabus After receiving a robbery report, police stopped the suspected getaway car, which the owner was driving and in which petitioners were passengers. Upon searching the car, the police found a box of rifle shells in the glove compartment and a sawed-off rifle under the front passenger seat and arrested petitioners. Subsequently, petitioners were convicted in an Illinois court of armed robbery at a trial in which the rifle and shells were admitted as evidence. Before trial petitioners had moved to suppress the rifle and shells on Fourth Amendment grounds, but the trial court denied the motion on the ground that petitioners lacked standing to object to the lawfulness of the search of the car because they concededly did not own either the car or the rifle and shells. The Illinois Appellate Court affirmed. Held : 1. "Fourth Amendment rights are personal rights which . . . may not be vicariously asserted," Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176, and a person aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. The rule of standing to raise vicarious Fourth Amendment claims should not be extended by a so-called "target" theory whereby any criminal defendant at whom a search was "directed" would have standing to contest the legality of that search and object to the admission at trial of evidence obtained as a result of the search. Pp. 133-138. 2. In any event, the better analysis of the principle that Fourth Amendment rights are personal rights that may not be asserted vicariously should focus on the extent of a particular defendant's rights under that Amendment, rather than on any theoretically separate but invariably intertwined concept of standing. Pp. 138-140. 3. The phrase "legitimately on premises" coined in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, creates "too broad a gauge" for measurement of Fourth Amendment rights. The holding in Jones can best be explained by the fact that Jones had a legitimate expectation of privacy in the premises he was using and therefore could claim the protection of the Fourth Amendment. Pp. 140-148. 4. Petitioners, who asserted neither a property nor a possessory interest in the automobile searched nor an interest in the property seized and who failed to show that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers, were not entitled to challenge a search of those areas. Jones v. United States, supra ; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, distinguished. Pp. 148-149. 46 Ill.App.3d 569, 4 Ill.Dec. 877, 360 N.E.2d 1252, affirmed. G. Joseph Weller, Ottawa, Ill., for petitioners. Donald B. Mackay, Chicago, Ill., for respondent. Mr. Justice REHNQUIST delivered the opinion of the Court. 1 Petitioners were convicted of armed robbery in the Circuit Court of Kankakee County, Ill., and their convictions were affirmed on appeal. At their trial, the prosecution offered into evidence a sawed-off rifle and rifle shells that had been seized by police during a search of an automobile in which petitioners had been passengers. Neither petitioner is the owner of the automobile and neither has ever asserted that he owned the rifle or shells seized. The Illinois Appellate Court held that petitioners lacked standing to object to the allegedly unlawful search and seizure and denied their motion to suppress the evidence. We granted certiorari in light of the obvious importance of the issues raised to the administration of criminal justice, 435 U.S. 922, 98 S.Ct. 1483, 55 L.Ed.2d 515 (1978), and now affirm. 2 * Because we are not here concerned with the issue of probable cause, a brief description of the events leading to the search of the automobile will suffice. A police officer on a routine patrol received a radio call notifying him of a robbery of a clothing store in Bourbonnais, Ill., and describing the getaway car. Shortly thereafter, the officer spotted an automobile which he thought might be the getaway car. After following the car for some time and after the arrival of assistance, he and several other officers stopped the vehicle. The occupants of the automobile, petitioners and two female companions, were ordered out of the car and, after the occupants had left the car, two officers searched the interior of the vehicle. They discovered a box of rifle shells in the glove compartment, which had been locked, and a sawed-off rifle under the front passenger seat. App. 10-11. After discovering the rifle and the shells, the officers took petitioners to the station and placed them under arrest. 3 Before trial petitioners moved to suppress the rifle and shells seized from the car on the ground that the search violated the Fourth and Fourteenth Amendments. They conceded that they did not own the automobile and were simply passengers; the owner of the car had been the driver of the vehicle at the time of the search. Nor did they assert that they owned the rifle or the shells seized.1 The prosecutor challenged petitioners' standing to object to the lawfulness of the search of the car because neither the car, the shells nor the rifle belonged to them. The trial court agreed that petitioners lacked standing and denied the motion to suppress the evidence. App. 23-24. In view of this holding, the court did not determine whether there was probable cause for the search and seizure. On appeal after petitioners' conviction, the Appellate Court of Illinois, Third Judicial District, affirmed the trial court's denial of petitioners' motion to suppress because it held that "without a proprietary or other similar interest in an automobile, a mere passenger therein lacks standing to challenge the legality of the search of the vehicle." 46 Ill.App.3d 569, 571, 4 Ill.Dec. 877, 878, 360 N.E.2d 1252, 1253 (1977). The court stated: 4 "We believe that defendants failed to establish any prejudice to their own constitutional rights because they were not persons aggrieved by the unlawful search and seizure. . . . They wrongly seek to establish prejudice only through the use of evidence gathered as a consequence of a search and seizure directed at someone else and fail to prove an invasion of their own privacy. (Alderman v. United States (1969), 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176)." Id., at 571-572, 4 Ill.Dec., at 879, 360 N.E.2d, at 1254. 5 The Illinois Supreme Court denied petitioners leave to appeal. II 6 Petitioners first urge us to relax or broaden the rule of standing enunciated in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), so that any criminal defendant at whom a search was "directed" would have standing to contest the legality of that search and object to the admission at trial of evidence obtained as a result of the search. Alternatively, petitioners argue that they have standing to object to the search under Jones because they were "legitimately on [the] premises" at the time of the search. 7 The concept of standing discussed in Jones focuses on whether the person seeking to challenge the legality of a search as a basis for suppressing evidence was himself the "victim" of the search or seizure. Id., at 261, 80 S.Ct., at 731.2 Adoption of the so-called "target" theory advanced by petitioners would in effect permit a defendant to assert that a violation of the Fourth Amendment rights of a third party entitled him to have evidence suppressed at his trial. If we reject petitioners' request for a broadened rule of standing such as this, and reaffirm the holding of Jones and other cases that Fourth Amendment rights are personal rights that may not be asserted vicariously, we will have occasion to re-examine the "standing" terminology emphasized in Jones. For we are not at all sure that the determination of a motion to suppress is materially aided by labeling the inquiry identified inJones as one of standing, rather than simply recognizing it as one involving the substantive question of whether or not the proponent of the motion to suppress has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge. We shall therefore consider in turn petitioners' target theory, the necessity for continued adherence to the notion of standing discussed in Jones as a concept that is theoretically distinct from the merits of a defendant's Fourth Amendment claim, and, finally, the proper disposition of petitioners' ultimate claim in this case. 8 We decline to extend the rule of standing in Fourth Amendment cases in the manner suggested by petitioners. As we stated in Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969), "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." See Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973); Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 973, 19 L.Ed.2d 1247 (1968); Wong Sun v. United States, 371 U.S. 471, 492, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963); cf. Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734 (1961); Gouled v. United States, 255 U.S. 298, 304, 41 S.Ct. 261, 263, 65 L.Ed. 647 (1921). A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. Alderman, supra, 394 U.S., at 174, 89 S.Ct., at 966. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974), it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule's protections.3 See Simmons v. United States, supra, 390 U.S., at 389, 88 S.Ct., at 973. There is no reason to think that a party whose rights have been infringed will not, if evidence is used against him, have ample motivation to move to suppress it. Alderman, supra, 394 U.S., at 174, 89 S.Ct., at 966. Even if such a person is not a defendant in the action, he may be able to recover damages for the violation of his Fourth Amendment rights, see Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), or seek redress under state law for invasion of privacy or trespass. 9 In support of their target theory, petitioners rely on the following quotation from Jones : 10 "In order to qualify as a 'person aggrieved by an unlawful search and seizure' one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else." 362 U.S., at 261, 80 S.Ct., at 731 (emphasis added). 11 They also rely on Bumper v. North Carolina, 391 U.S. 543, 548, n. 11, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968), and United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). 12 The above-quoted statement from Jones suggests that the italicized language was meant merely as a parenthetical equivalent of the previous phrase "a victim of a search or seizure." To the extent that the language might be read more broadly, it is dictum which was impliedly repudiated in Alderman v. United States, supra, and which we now expressly reject. In Jones, the Court set forth two alternative holdings: It established a rule of "automatic" standing to contest an allegedly illegal search where the same possession needed to establish standing is an essential element of the offense charged;4 and second, it stated that "anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress." 362 U.S., at 264, 267, 80 S.Ct., at 732, 734. See Combs v. United States, 408 U.S. 224, 227 n. 4, 92 S.Ct. 2284, 2286, 33 L.Ed.2d 308 (1972); Mancusi v. DeForte, 392 U.S. 364, 368 n. 5, 88 S.Ct. 2120, 2123, 20 L.Ed.2d 1154 (1968); Simmons v. United States, supra, 390 U.S., at 390, 88 S.Ct., at 974. Had the Court intended to adopt the target theory now put forth by petitioners, neither of the above two holdings would have been necessary since Jones was the "target" of the police search in that case.5 Nor does United States v. Jeffers, supra, or Bumper v. North Carolina, supra, support the target theory. Standing in Jeffers was based on Jeffers' possessory interest in both the premises searched and the property seized. 342 U.S., at 49-50, 54, 72 S.Ct., at 94-95, 96; see Mancusi v. DeForte, supra, 392 U.S., at 367-368, 88 S.Ct., at 2123-2124; Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966); Lanza v. New York, 370 U.S. 139, 143, and n. 10, 82 S.Ct. 1218, 1221, 8 L.Ed.2d 384 (1962). Similarly, in Bumper, the defendant had a substantial possessory interest in both the house searched and the rifle seized. 391 U.S., at 548 n. 11, 88 S.Ct., at 1791. 13 In Alderman v. United States, Mr. Justice Fortas, in a concurring and dissenting opinion, argued that the Court should "include within the category of those who may object to the introduction of illegal evidence 'one against whom the search was directed.' " 394 U.S., at 206-209, 89 S.Ct., at 985. The Court did not directly comment on Mr. Justice Fortas' suggestion, but it left no doubt that it rejected this theory by holding that persons who were not parties to unlawfully overheard conversations or who did not own the premises on which such conversations took place did not have standing to contest the legality of the surveillance, regardless of whether or not they were the "targets" of the surveillance. Id., at 176, 89 S.Ct., at 968. Mr. Justice Harlan, concurring and dissenting, did squarely address Mr. Justice Fortas' arguments and declined to accept them. Id., at 188-189, n. 1, 89 S.Ct., at 974. He identified administrative problems posed by the target theory: 14 "[T]he [target] rule would entail very substantial administrative difficulties. In the majority of cases, I would imagine that the police plant a bug with the expectation that it may well produce leads to a large number of crimes. A lengthy hearing would, then, appear to be necessary in order to determine whether the police knew of an accused's criminal activity at the time the bug was planted and whether the police decision to plant a bug was motivated by an effort to obtain information against the accused or some other individual. I do not believe that this administrative burden is justified in any substantial degree by the hypothesized marginal increase in Fourth Amendment protection." Ibid. 15 When we are urged to grant standing to a criminal defendant to assert a violation, not of his own constitutional rights but of someone else's, we cannot but give weight to practical difficulties such as those foreseen by Mr. Justice Harlan in the quoted language. 16 Conferring standing to raise vicarious Fourth Amendment claims would necessarily mean a more widespread invocation of the exclusionary rule during criminal trials. The Court's opinion in Alderman counseled against such an extension of the exclusionary rule: 17 "The deterrent values of preventing the incrimination of those whose rights the police have violated have been considered sufficient to justify the suppression of probative evidence even though the case against the defendant is weakened or destroyed. We adhere to that judgment. But we are not convinced that the additional benefits of extending the exclusionary rule to other defendants would justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth." Id., at 174-175, 89 S.Ct., at 967. 18 Each time the exclusionary rule is applied it exacts a substantial social cost for the vindication of Fourth Amendment rights. Relevant and reliable evidence is kept from the trier of fact and the search for truth at trial is deflected. See United States v. Ceccolini, 435 U.S. 268, 275, 98 S.Ct. 1054, 1059, 55 L.Ed.2d 268 (1978); Stone v. Powell, 428 U.S. 465, 489-490, 96 S.Ct. 3037, 3050, 49 L.Ed.2d 1067 (1976); United States v. Calandra, 414 U.S., at 348-352, 94 S.Ct., at 620-622. Since our cases generally have held that one whose Fourth Amendment rights are violated may successfully suppress evidence obtained in the course of an illegal search and seizure, misgivings as to the benefit of enlarging the class of persons who may invoke that rule are properly considered when deciding whether to expand standing to assert Fourth Amendment violations.6 B 19 Had we accepted petitioners' request to allow persons other than those whose own Fourth Amendment rights were violated by a challenged search and seizure to suppress evidence obtained in the course of such police activity, it would be appropriate to retain Jones' use of standing in Fourth Amendment analysis. Under petitioners' target theory, a court could determine that a defendant had standing to invoke the exclusionary rule without having to inquire into the substantive question of whether the challenged search or seizure violated the Fourth Amendment rights of that particular defendant. However, having rejected petitioners' target theory and reaffirmed the principle that the "rights assured by the Fourth Amendment are personal rights, [which] . . . may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure," Simmons v. United States, 390 U.S., at 389, 88 S.Ct., at 974, the question necessarily arises whether it serves any useful analytical purpose to consider this principle a matter of standing, distinct from the merits of a defendant's Fourth Amendment claim. We can think of no decided cases of this Court that would have come out differently had we concluded, as we do now, that the type of standing requirement discussed in Jones and reaffirmed today is more properly subsumed under substantive Fourth Amendment doctrine. Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of "standing," will produce no additional situations in which evidence must be excluded. The inquiry under either approach is the same.7 But we think the better analysis forthrightly focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing. The Court in Jones also may have been aware that there was a certain artificiality in analyzing this question in terms of standing because in at least three separate places in its opinion the Court placed that term within quotation marks. 362 U.S., at 261, 263, 265, 80 S.Ct., at 731, 732, 733. 20 It should be emphasized that nothing we say here casts the least doubt on cases which recognize that, as a general proposition, the issue of standing involves two inquiries: first, whether the proponent of a particular legal right has alleged "injury in fact," and, second, whether the proponent is asserting his own legal rights and interests rather than basing his claim for relief upon the rights of third parties. See, e. g., Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976); Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975); Data Processing Service v. Camp, 397 U.S. 150, 152-153, 90 S.Ct. 827, 829-830, 25 L.Ed.2d 184 (1970). But this Court's long history of insistence that Fourth Amendment rights are personal in nature has already answered many of these traditional standing inquiries, and we think that definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing. Cf. id., at 153, and n. 1, 90 S.Ct., at 829; Barrows v. Jackson, 346 U.S. 249, 256 n. 4, 73 S.Ct. 1031, 1035, 97 L.Ed. 1586 (1953); Hale v. Henkel, 201 U.S. 43, 69-70, 26 S.Ct. 370, 376-377, 50 L.Ed. 652 (1906).8 21 Analyzed in these terms, the question is whether the challenged search or seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it. That inquiry in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect. We are under no illusion that by dispensing with the rubric of standing used inJones we have rendered any simpler the determination of whether the proponent of a motion to suppress is entitled to contest the legality of a search and seizure. But by frankly recognizing that this aspect of the analysis belongs more properly under the heading of substantive Fourth Amendment doctrine than under the heading of standing, we think the decision of this issue will rest on sounder logical footing. C 22 Here petitioners, who were passengers occupying a car which they neither owned nor leased, seek to analogize their position to that of the defendant in Jones v. United States. In Jones, petitioner was present at the time of the search of an apartment which was owned by a friend. The friend had given Jones permission to use the apartment and a key to it, with which Jones had admitted himself on the day of the search. He had a suit and shirt at the apartment and had slept there "maybe a night," but his home was elsewhere. At the time of the search, Jones was the only occupant of the apartment because the lessee was away for a period of several days. 362 U.S., at 259, 80 S.Ct., at 730. Under these circumstances, this Court stated that while one wrongfully on the premises could not move to suppress evidence obtained as a result of searching them,9 "anyone legitimately on premises where a search occurs may challenge its legality." Id., at 267, 80 S.Ct., at 734. Petitioners argue that their occupancy of the automobile in question was comparable to that of Jones in the apartment and that they therefore have standing to contest the legality of the search—or as we have rephrased the inquiry, that they, like Jones, had their Fourth Amendment rights violated by the search. 23 We do not question the conclusion in Jones that the defendant in that case suffered a violation of his personal Fourth Amendment rights if the search in question was unlawful. Nonetheless, we believe that the phrase "legitimately on premises" coined in Jones creates too broad a gauge for measurement of Fourth Amendment rights.10 For example, applied literally, this statement would permit a casual visitor who has never seen, or been permitted to visit, the basement of another's house to object to a search of the basement if the visitor happened to be in the kitchen of the house at the time of the search. Likewise, a casual visitor who walks into a house one minute before a search of the house commences and leaves one minute after the search ends would be able to contest the legality of the search. The first visitor would have absolutely no interest or legitimate expectation of privacy in the basement, the second would have none in the house, and it advances no purpose served by the Fourth Amendment to permit either of them to object to the lawfulness of the search.11 24 We think that Jones on its facts merely stands for the unremarkable proposition that a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place. See 362 U.S., at 263, 265, 80 S.Ct., at 732, 733. In defining the scope of that interest, we adhere to the view expressed in Jones and echoed in later cases that arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control. Id., at 266, 80 S.Ct., at 733; see Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). But the Jones statement that a person need only be "legitimately on premises" in order to challenge the validity of the search of a dwelling place cannot be taken in its full sweep beyond the facts of that case. 25 Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), provides guidance in defining the scope of the interest protected by the Fourth Amendment. In the course of repudiating the doctrine derived from Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), and Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), that if police officers had not been guilty of a common-law trespass they were not prohibited by the Fourth Amendment from eavesdropping, the Court in Katz held that capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place. 389 U.S., at 353, 88 S.Ct., at 512; see United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977); United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971). Viewed in this manner, the holding in Jones can best be explained by the fact that Jones had a legitimate expectation of privacy in the premises he was using and therefore could claim the protection of the Fourth Amendment with respect to a governmental invasion of those premises, even though his "interest" in those premises might not have been a recognized property interest at common law.12 See Jones v. United States, 362 U.S., at 261, 80 S.Ct., at 731. 26 Our Brother WHITE in dissent expresses the view that by rejecting the phrase "legitimately on [the] premises" as the appropriate measure of Fourth Amendment rights, we are abandoning a thoroughly workable, "bright line" test in favor of a less certain analysis of whether the facts of a particular case give rise to a legitimate expectation of privacy. Post, at 168. If "legitimately on premises" were the successful litmus test of Fourth Amendment rights that he assumes it is, his approach would have at least the merit of easy application, whatever it lacked in fidelity to the history and purposes of the Fourth Amendment. But a reading of lower court cases that have applied the phrase "legitimately on premises," and of the dissent itself, reveals that this expression is not a shorthand summary for a bright-line rule which somehow encapsulates the "core" of the Fourth Amendment's protections.13 27 The dissent itself shows that the facile consistency it is striving for is illusory. The dissenters concede that "there comes a point when use of an area is shared with so many that one simply cannot reasonably expect seclusion." Post, at 164. But surely the "point" referred to is not one demarcating a line which is black on one side and white on another; it is inevitably a point which separates one shade of gray from another. We are likewise told by the dissent that a person "legitimately on private premises . . . , though his privacy is not absolute, is entitled to expect that he is sharing it only with those persons [allowed there] and that governmental officials will intrude only with consent or by complying with the Fourth Amendment." Ibid. (emphasis added). This single sentence describing the contours of the supposedly easily applied rule virtually abounds with unanswered questions: What are "private" premises? Indeed, what are the "premises?" It may be easy to describe the "premises" when one is confronted with a 1-room apartment, but what of the case of a 10-room house, or of a house with an attached garage that is searched? Also, if one's privacy is not absolute, how is it bounded? If he risks governmental intrusion "with consent," who may give that consent? 28 Again, we are told by the dissent that the Fourth Amendment assures that "some expectations of privacy are justified and will be protected from official intrusion." Post, at 166 (emphasis added). But we are not told which of many possible expectations of privacy are embraced within this sentence. And our dissenting Brethren concede that "perhaps the Constitution provides some degree less protection for the personal freedom from unreasonable governmental intrusion when one does not have a possessory interest in the invaded private place." But how much "less" protection is available when one does not have such a possessory interest? 29 Our disagreement with the dissent is not that it leaves these questions unanswered, or that the questions are necessarily irrelevant in the context of the analysis contained in this opinion. Our disagreement is rather with the dissent's bland and self-refuting assumption that there will not be fine lines to be drawn in Fourth Amendment cases as in other areas of the law, and that its rubric, rather than a meaningful exegesis of Fourth Amendment doctrine, is more desirable or more easily resolves Fourth Amendment cases.14 In abandoning "legitimately on premises" for the doctrine that we announce today, we are not forsaking a time-tested and workable rule, which has produced consistent results when applied, solely for the sake of fidelity to the values underlying the Fourth Amendment. Rather, we are rejecting blind adherence to a phrase which at most has superficial clarity and which conceals underneath that thin veneer all of the problems of line drawing which must be faced in any conscientious effort to apply the Fourth Amendment. Where the factual premises for a rule are so generally prevalent that little would be lost and much would be gained by abandoning case-by-case analysis, we have not hesitated to do so. See United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973). But the phrase "legitimately on premises" has not been shown to be an easily applicable measure of Fourth Amendment rights so much as it has proved to be simply a label placed by the courts on results which have not been subjected to careful analysis. We would not wish to be understood as saying that legitimate presence on the premises is irrelevant to one's expectation of privacy, but it cannot be deemed controlling. D 30 Judged by the foregoing analysis, petitioners' claims must fail. They asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized. And as we have previously indicated, the fact that they were "legitimately on [the] premises" in the sense that they were in the car with the permission of its owner is not determinative of whether they had a legitimate expectation of privacy in the particular areas of the automobile searched. It is unnecessary for us to decide here whether the same expectations of privacy are warranted in a car as would be justified in a dwelling place in analogous circumstances. We have on numerous occasions pointed out that cars are not to be treated identically with houses or Apartments for Fourth Amendment purposes. See United States v. Chadwick, 433 U.S., at 12, 97 S.Ct., at 2484; United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976); Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion).15 But here petitioners' claim is one which would fail even in an analogous situation in a dwelling place, since they made no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers. Like the trunk of an automobile, these are areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy. Supra, at 142. 31 Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), involved significantly different factual circumstances. Jones not only had permission to use the apartment of his friend, but also had a key to the apartment with which he admitted himself on the day of the search and kept possessions in the apartment. Except with respect to his friend, Jones had complete dominion and control over the apartment and could exclude others from it. Likewise in Katz, the defendant occupied the telephone booth, shut the door behind him to exclude all others and paid the toll, which "entitled [him] to assume that the words he utter[ed] into the mouthpiece [would] not be broadcast to the world." Id., at 352, 88 S.Ct., at 512.16 Katz and Jones could legitimately expect privacy in the areas which were the subject of the search and seizure each sought to contest. No such showing was made by these petitioners with respect to those portions of the automobile which were searched and from which incriminating evidence was seized.17 III 32 The Illinois courts were therefore correct in concluding that it was unnecessary to decide whether the search of the car might have violated the rights secured to someone else by the Fourth and Fourteenth Amendments to the United States Constitution. Since it did not violate any rights of these petitioners, their judgment of conviction is 33 Affirmed. 34 Mr. Justice POWELL, with whom THE CHIEF JUSTICE joins, concurring. 35 I concur in the opinion of the Court, and add these thoughts. I do not believe my dissenting Brethren correctly characterize the rationale of the Court's opinion when they assert that it ties "the application of the Fourth Amendment . . . to property law concepts." Post, at 156-157. On the contrary, I read the Court's opinion as focusing on whether there was a legitimate expectation of privacy protected by the Fourth Amendment. 36 The petitioners do not challenge the constitutionality of the police action in stopping the automobile in which they were riding; nor do they complain of being made to get out of the vehicle. Rather, petitioners assert that their constitutionally protected interest in privacy was violated when the police, after stopping the automobile and making them get out, searched the vehicle's interior, where they discovered a sawed-off rifle under the front seat and rifle shells in the locked glove compartment. The question before the Court, therefore, is a narrow one: Did the search of their friend's automobile after they had left it violate any Fourth Amendment right of the petitioners? 37 The dissenting opinion urges the Court to answer this question by considering only the talisman of legitimate presence on the premises. To be sure, one of the two alternative reasons given by the Court for its ruling in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), was that the defendant had been legitimately on the premises searched. Since Jones, however, the view that mere legitimate presence is enough to create a Fourth Amendment right has been questioned. See ante, at 147 n. 14. There also has been a signal absence of uniformity in the application of this theory. See ante, at 145-146 n. 13. 38 This Court's decisions since Jones have emphasized a sounder standard for determining the scope of a person's Fourth Amendment rights: Only legitimate expectations of privacy are protected by the Constitution. In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Court rejected the notion that the Fourth Amendment protects places or property, ruling that the scope of the Amendment must be determined by the scope of privacy that a free people legitimately may expect. See id., at 353, 88 S.Ct., at 512. As Mr. Justice Harlan pointed out in his concurrence, however, it is not enough that an individual desired or anticipated that he would be free from governmental intrusion. Rather, for an expectation to deserve the protection of the Fourth Amendment, it must "be one that society is prepared to recognize as 'reasonable.' " See id., at 361, 88 S.Ct., at 516. 39 The ultimate question, therefore, is whether one's claim to privacy from government intrusion is reasonable in light of all the surrounding circumstances. As the dissenting opinion states, this standard "will not provide law enforcement officials with a bright line between the protected and the unprotected." See post, at 168. Whatever the application of this standard may lack in ready administration, it is more faithful to the purposes of the Fourth Amendment than a test focusing solely or primarily on whether the defendant was legitimately present during the search.1 40 In considering the reasonableness of asserted privacy expectations, the Court has recognized that no single factor invariably will be determinative. Thus, the Court has examined whether a person invoking the protection of the Fourth Amendment took normal precautions to maintain his privacy—that is, precautions customarily taken by those seeking privacy. See, e. g., United States v. Chadwick, 433 U.S. 1, 11, 97 S.Ct. 2476, 2483, 53 L.Ed.2d 538 (1977) ("By placing personal effects inside a doublelocked footlocker, respondents manifested an expectation that the contents would remain free from public examination"); Katz v. United States, supra, 389 U.S., at 352, 88 S.Ct., at 511 ("One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world"). Similarly, the Court has looked to the way a person has used a location, to determine whether the Fourth Amendment should protect his expectations of privacy. In Jones v. United States, supra, for example, the Court found that the defendant had a Fourth Amendment privacy interest in an apartment in which he had slept and in which he kept his clothing. The Court on occasion also has looked to history to discern whether certain types of government intrusion were perceived to be objectionable by the Framers of the Fourth Amendment. See United States v. Chadwick, supra, 433 U.S., at 7-9, 97 S.Ct., at 2481-2482. And, as the Court states today, property rights reflect society's explicit recognition of a person's authority to act as he wishes in certain areas, and therefore should be considered in determining whether an individual's expectations of privacy are reasonable. See Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). 41 The Court correctly points out that petitioners cannot invoke decisions such as Alderman in support of their Fourth Amendment claim, as they had no property interest in the automobile in which they were riding. But this determination is only part of the inquiry required under Katz. The petitioners' Fourth Amendment rights were not abridged here because none of the factors relied upon by this Court on prior occasions supports petitioners' claim that their alleged expectation of privacy from government intrusion was reasonable. 42 We are concerned here with an automobile search. Nothing is better established in Fourth Amendment jurisprudence than the distinction between one's expectation of privacy in an automobile and one's expectation when in other locations.2 We have repeatedly recognized that this expectation in "an automobile . . . [is] significantly different from the traditional expectation of privacy and freedom in one's residence." United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976). In United States v. Chadwick, supra, 433 U.S., at 12, 97 S.Ct., at 2484, the distinction was stated more broadly: 43 "[T]his Court has recognized significant differences between motor vehicles and other property which permit warrantless searches of automobiles in circumstances in which warrantless searches would not be reasonable in other contexts. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Preston v. United States, [376 U.S. 364,] 366-367, 84 S.Ct. [881], at 882-883 [11 L.Ed.2d 777 (1964)]; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). See also South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976)."3 44 In Chadwick, the Court recognized a reasonable expectation of privacy with respect to one's locked footlocker, and rejected the Government's argument that luggage always should be equated with motor vehicles for Fourth Amendment purposes. 433 U.S., at 13, 97 S.Ct., at 2484. 45 A distinction also properly may be made in some circumstances between the Fourth Amendment rights of passengers and the rights of an individual who has exclusive control of an automobile or of its locked compartments. In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), for example, we considered "the citizen's interest in the privacy of the contents of his automobile" where its doors were locked and windows rolled up. See id., at 379, 96 S.Ct., at 3102 (POWELL, J., concurring). Here there were three passengers and a driver in the automobile searched. None of the passengers is said to have had control of the vehicle or the keys. It is unrealistic—as the shared experience of us all bears witness—to suggest that these passengers had any reasonable expectation that the car in which they had been riding would not be searched after they were lawfully stopped and made to get out. The minimal privacy that existed simply is not comparable to that, for example, of an individual in his place of abode, see Jones v. United States, supra; of one who secludes himself in a telephone booth, Katz v. United States, supra; or of the traveler who secures his belongings in a locked suitcase or footlocker. See United States v. Chadwick, supra.4 46 This is not an area of the law in which any "bright line" rule would safeguard both Fourth Amendment rights and the public interest in a fair and effective criminal justice system. The range of variables in the fact situations of search and seizure is almost infinite. Rather than seek facile solutions, it is best to apply principles broadly faithful to Fourth Amendment purposes. I believe the Court has identified these principles.5 47 Mr. Justice WHITE, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice STEVENS join, dissenting. 48 The Court today holds that the Fourth Amendment protects property, not people, and specifically that a legitimate occupant of an automobile may not invoke the exclusionary rule and challenge a search of that vehicle unless he happens to own or have a possessory interest in it.1 Though professing to acknowledge that the primary purpose of the Fourth Amendment's prohibition of unreasonable searches is the protection of privacy not property—the Court nonetheless effectively ties the application of the Fourth Amendment and the exclusionary rule in this situation to property law concepts. Insofar as passengers are concerned, the Court's opinion today declares an "open season" on automobiles. However unlawful stopping and searching a car may be, absent a possessory or ownership interest, no "mere" passenger may object, regardless of his relationship to the owner. Because the majority's conclusion has no support in the Court's controlling decisions, in the logic of the Fourth Amendment, or in common sense, I must respectfully dissent. If the Court is troubled by the practical impact of the exclusionary rule, it should face the issue of that rule's continued validity squarely instead of distorting other doctrines in an attempt to reach what are perceived as the correct results in specific cases. Cf. Stone v. Powell, 428 U.S. 465, 536, 96 S.Ct. 3037, 3071, 49 L.Ed.2d 1067 (1976) (WHITE, J., dissenting). 49 * Two intersecting doctrines long established in this Court's opinions control here. The first is the recognition of some cognizable level of privacy in the interior of an automobile. Though the reasonableness of the expectation of privacy in a vehicle may be somewhat weaker than that in a home, see United States v. Chadwick, 433 U.S. 1, 12-13, 97 S.Ct. 2476, 2484-2485, 53 L.Ed.2d 538 (1977), "[a] search even of an automobile, is a substantial invasion of privacy. To protect that privacy from official arbitrariness, the Court always has regarded probable cause as the minimum requirement for a lawful search." United States v. Ortiz, 422 U.S. 891, 896, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 623 (1975) (footnote omitted). So far, the Court has not strayed from this application of the Fourth Amendment.2 50 The second tenet is that when a person is legitimately present in a private place, his right to privacy is protected from unreasonable governmental interference even if he does not own the premises. Just a few years ago, THE CHIEF JUSTICE, for a unanimous Court, wrote that the "[p]resence of the defendant at the search and seizure was held, in Jones, to be a sufficient source of standing in itself." Brown v. United States, 411 U.S. 223, 227 n. 2, 93 S.Ct. 1565, 1568, 36 L.Ed.2d 208 (1973); accord, id., at 229, 93 S.Ct., at 1569 (one basis for Fourth Amendment protection is presence "on the premises at the time of the contested search and seizure"); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) (individual legitimately present in friend's apartment may object to search of apartment). Brown was not the first time we had recognized that Jones established the rights of one legitimately in a private area against unreasonable governmental intrusion. E. g., Combs v. United States, 408 U.S. 224, 227, and n. 4, 92 S.Ct. 2284, 2286, 33 L.Ed.2d 308 (1972); Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 2123, 20 L.Ed.2d 1154 and n. 5 (1968); Simmons v. United States, 390 U.S. 377, 390, 88 S.Ct. 967, 974, 19 L.Ed.2d 1247 (1968). The Court in Jones itself was unanimous in this regard, and its holding is not the less binding because it was an alternative one. See Combs v. United States, supra, 408 U.S. at 227 n. 4, 92 S.Ct. at 2286. 51 These two fundamental aspects of Fourth Amendment law demand that petitioners be permitted to challenge the search and seizure of the automobile in this case. It is of no significance that a car is different for Fourth Amendment purposes from a house, for if there is some protection for the privacy of an automobile then the only relevant analogy is between a person legitimately in someone else's vehicle and a person legitimately in someone else's home. If both strands of the Fourth Amendment doctrine adumbrated above are valid, the Court must reach a different result. Instead, it chooses to eviscerate the Jones principle, an action in which I am unwilling to participate. II 52 Though we had reserved the very issue over 50 years ago, see Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), and never expressly dealt with it again until today, many of our opinions have assumed that a mere passenger in an automobile is entitled to protection against unreasonable searches occurring in his presence. In decisions upholding the validity of automobile searches, we have gone directly to the merits even though some of the petitioners did not own or possess the vehicles in question. E. g., Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (sole petitioner was not owner; in fact, owner was not in the automobile at all); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (sole petitioner was not owner); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931). In Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968), the Court, with seven Members agreeing, upset the admission of evidence against three petitioners though only one owned the vehicle. See id., at 221-222, 88 S.Ct., at 1475-1476. Similarly, in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), the Court unanimously overturned a search though the single petitioner was not the owner of the automobile. The Court's silence on this issue in light of its actions can only mean that, until now, we, like most lower courts,3 had assumed that Jones foreclosed the answer now supplied by the majority. That assumption was perfectly understandable, since all private premises would seem to be the same for the purposes of the analysis set out in Jones. III 53 The logic of Fourth Amendment jurisprudence compels the result reached by the above decisions. Our starting point is "[t]he established principle . . . that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself . . ." Alderman v. United States, 394 U.S. 165, 171-172, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1969).4 Though the Amendment protects one's liberty and property interests against unreasonable seizures of self5 and effects,6 "the primary object of the Fourth Amendment [is] . . . the protection of privacy." Cardwell v. Lewis, 417 U.S. 583, 589, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion).7 And privacy is the interest asserted here,8 so the first step is to ascertain whether the premises searched "fall within a protected zone of privacy." United States v. Miller, 425 U.S. 435, 440, 96 S.Ct. 1619, 1623, 48 L.Ed.2d 71 (1976). My Brethren in the majority assertedly do not deny that automobiles warrant at least some protection from official interference with privacy. Thus, the next step is to decide who is entitled, vis-a-vis the State, to enjoy that privacy. The answer to that question must be found by determining "whether petitioner had an interest in connection with the searched premises that gave rise to 'a reasonable expectation [on his part] of freedom from governmental intrusion' upon those premises." Combs v. United States, 408 U.S., at 227, 92 S.Ct., at 2286, quoting Mancusi v. DeForte, 392 U.S., at 368, 88 S.Ct., at 2123 (bracketed material in original). 54 Not only does Combs supply the relevant inquiry, it also directs us to the proper answer. We recognized there that Jones had held that one of those protected interests is created by legitimate presence on the searched premises, even absent any possessory interest. 408 U.S., at 227 n. 4, 92 S.Ct., at 2286. This makes unquestionable sense. We have concluded on numerous occasions that the entitlement to an expectation of privacy does not hinge on ownership: 55 "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. 347, 351-352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). 56 In Alderman v. United States, supra, 394 U.S., at 196, 89 S.Ct., at 978, Mr. Justice Harlan, concurring in part and dissenting in part, noted that "our own past decisions . . . have decisively rejected the notion that the accused must necessarily have a possessory interest in the premises before he may assert a Fourth Amendment claim." That rejection should not have been surprising in light of our conclusion as early as 1960 that "it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical." Jones v. United States, 362 U.S., at 266, 80 S.Ct., at 733.9 The proposition today overruled was stated most directly in Mancusi v. DeForte, supra, 392 U.S., at 368, 88 S.Ct., at 2124: "[T]he protection of the Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion." 57 Prior to Jones, the lower federal courts had based Fourth Amendment rights upon possession or ownership of the items seized or the premises searched.10 But Jones was foreshadowed by Mr. Justice Jackson's remark in 1948 that "even a guest may expect the shelter of the rooftree he is under against criminal intrusion." McDonald v. United States, 335 U.S. 451, 461, 69 S.Ct. 191, 196, 93 L.Ed. 153 (1948) (Jackson, J., joined by Frankfurter, J., concurring). Indeed, the decision today is contrary to Mr. Justice Brandeis' dissent in Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928), expressing a view of the Fourth Amendment thought to have been vindicated by Katz. The majority in Olmstead found the Fourth Amendment inapplicable absent a trespass on property rights. 277 U.S., at 466, 48 S.Ct., at 568. That is exactly what the Court holds in this case; but Mr. Justice Brandeis asserted 50 years ago that more than mere property rights are involved, and the Court's opinion in Katz reemphasized that " '[t]he premise that property interests control the right of the Government to search and seize has been discredited.' " 389 U.S., at 353, 88 S.Ct., at 512, quoting Warden v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 1648, 18 L.Ed.2d 782 (1967). That logic led us inescapably to the conclusion that "[n]o less than an individual in a business office, in a friend's apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment." 389 U.S., at 352, 88 S.Ct., at 511 (footnotes omitted). And if all of those situations are protected, surely a person riding in an automobile next to his friend the owner, or a child or wife with the father or spouse, must have some protection as well. 58 The same result is reached by tracing other lines of our Fourth Amendment decisions. If a nonowner may consent to a search merely because he is a joint user or occupant of a "premises," Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969),11 then that same nonowner must have a protected privacy interest. The scope of the authority sufficient to grant a valid consent can hardly be broader than the contours of protected privacy.12 And why should the owner of a vehicle be entitled to challenge the seizure from it of evidence even if he is absent at the time of the search, see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), while a nonowner enjoying in person, and with the owner's permission, the privacy of an automobile is not so entitled? 59 In sum, one consistent theme in our decisions under the Fourth Amendment has been, until now, that "the Amendment does not shield only those who have title to the searched premises." Mancusi v. DeForte, 392 U.S., at 367, 88 S.Ct., at 2123. Though there comes a point when use of an area is shared with so many that one simply cannot reasonably expect seclusion, see id., at 377, 88 S.Ct., at 2128 (WHITE, J., dissenting); Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 861, 865, 94 S.Ct. 2114, 2115, 40 L.Ed.2d 607 (1974), short of that limit a person legitimately on private premises knows the others allowed there and, though his privacy is not absolute, is entitled to expect that he is sharing it only with those persons and that governmental officials will intrude only with consent or by complying with the Fourth Amendment. See Mancusi v. DeForte, supra, at 369-370, 88 S.Ct., at 2124-2125.13 60 It is true that the Court asserts that it is not limiting the Fourth Amendment bar against unreasonable searches to the protection of property rights, but in reality it is doing exactly that.14 Petitioners were in a private place with the permission of the owner, but the Court states that that is not sufficient to establish entitlement to a legitimate expectation of privacy. Ante, at 148. But if that is not sufficient, what would be? We are not told, and it is hard to imagine anything short of a property interest that would satisfy the majority. Insofar as the Court's rationale is concerned, no passenger in an automobile, without an ownership or possessory interest and regardless of his relationship to the owner, may claim Fourth Amendment protection against illegal stops and searches of the automobile in which he is rightfully present. The Court approves the result in Jones, but it fails to give any explanation why the facts in Jones differ, in a fashion material to the Fourth Amendment, from the facts here.15 More importantly, how is the Court able to avoid answering the question why presence in a private place with the owner's permission is insufficient? If it is "tautological to fall back on the notion that those expectations of privacy which are legitimate depend primarily on cases deciding exclusionary rule issues in criminal cases," ante, at 144 n. 12, then it surely must be tautological to decide that issue simply by unadorned fiat. 61 As a control on governmental power, the Fourth Amendment assures that some expectations of privacy are justified and will be protected from official intrusion. That should be true in this instance, for if protected zones of privacy can only be purchased or obtained by possession of property, then much of our daily lives will be unshielded from unreasonable governmental prying, and the reach of the Fourth Amendment will have been narrowed to protect chiefly those with possessory interests in real or personal property. I had thought that Katz firmly established that the Fourth Amendment was intended as more than simply a trespass law applicable to the government. Katz had no possessory interest in the public telephone booth, at least no more than petitioners had in their friend's car; Katz was simply legitimately present. And the decision in Katz was based not on property rights, but on the theory that it was essential to securing "conditions favorable to the pursuit of happiness"16 that the expectation of privacy in question be recognized.17 62 At most, one could say that perhaps the Constitution provides some degree less protection for the personal freedom from unreasonable governmental intrusion when one does not have a possessory interest in the invaded private place. But that would only change the extent of the protection; it would not free police to do the unreasonable, as does the decision today. And since the accused should be entitled to litigate the application of the Fourth Amendment where his privacy interest is merely arguable,18 the failure to allow such litigation here is the more incomprehensible. IV 63 The Court's holding is contrary not only to our past decisions and the logic of the Fourth Amendment but also to the everyday expectations of privacy that we all share. Because of that, it is unworkable in all the various situations that arise in real life. If the owner of the car had not only invited petitioners to join her but had said to them, "I give you a temporary possessory interest in my vehicle so that you will share the right to privacy that the Supreme Court says that I own," then apparently the majority would reverse. But people seldom say such things, though they may mean their invitation to encompass them if only they had thought of the problem.19 If the nonowner were the spouse or child of the owner,20 would the Court recognize a sufficient interest? If so, would distant relatives somehow have more of an expectation of privacy than close friends? What if the nonowner were driving with the owner's permission? Would nonowning drivers have more of an expectation of privacy than mere passengers? What about a passenger in a taxicab? Katz expressly recognized protection for such passengers. Why should Fourth Amendment rights be present when one pays a cabdriver for a ride but be absent when one is given a ride by a friend? 64 The distinctions the Court would draw are based on relationships between private parties, but the Fourth Amendment is concerned with the relationship of one of those parties to the government. Divorced as it is from the purpose of the Fourth Amendment, the Court's essentially property-based rationale can satisfactorily answer none of the questions posed above. That is reason enough to reject it. The Jones rule is relatively easily applied by police and courts; the rule announced today will not provide law enforcement officials with a bright line between the protected and the unprotected.21 Only rarely will police know whether one private party has or has not been granted a sufficient possessory or other interest by another private party. Surely in this case the officers had no such knowledge. The Court's rule will ensnare defendants and police in needless litigation over factors that should not be determinative of Fourth Amendment rights.22 65 More importantly, the ruling today undercuts the force of the exclusionary rule in the one area in which its use is most certainly justified—the deterrence of bad-faith violations of the Fourth Amendment. See Stone v. Powell, 428 U.S., at 536-542, 96 S.Ct., at 3072-3074 (WHITE, J., dissenting). This decision invites police to engage in patently unreasonable searches every time an automobile contains more than one occupant. Should something be found, only the owner of the vehicle, or of the item, will have standing to seek suppression, and the evidence will presumably be usable against the other occupants.23 The danger of such bad faith is especially high in cases such as this one where the officers are only after the passengers and can usually infer accurately that the driver is the owner. The suppression remedy for those owners in whose vehicles something is found and who are charged with crime is small consolation for all those owners and occupants whose privacy will be needlessly invaded by officers following mistaken hunches not rising to the level of probable cause but operated on in the knowledge that someone in a crowded car will probably be unprotected if contraband or incriminating evidence happens to be found. After this decision, police will have little to lose by unreasonably searching vehicles occupied by more than one person. 66 Of course, most police officers will decline the Court's invitation and will continue to do their jobs as best they can in accord with the Fourth Amendment. But the very purpose of the Bill of Rights was to answer the justified fear that governmental agents cannot be left totally to their own devices, and the Bill of Rights is enforceable in the courts because human experience teaches that not all such officials will otherwise adhere to the stated precepts. Some policemen simply do act in bad faith, even if for understandable ends, and some deterrent is needed. In the rush to limit the applicability of the exclusionary rule somewhere, anywhere, the Court ignores precedent, logic, and common sense to exclude the rule's operation from situations in which, paradoxically, it is justified and needed. 1 Petitioners claim that they were never asked whether they owned the rifle or shells seized during the search and, citing Combs v. United States, 408 U.S. 224, 92 S.Ct. 2284, 33 L.Ed.2d 308 (1972), argue that if the Court determines that a property interest in the items seized is an adequate ground for standing to object to their seizure, the Court should remand the case for further proceedings on the question whether petitioners owned the seized rifle or shells. Reply Brief for Petitioners 4 n. 2. Petitioners do not now assert that they own the rifle or the shells. We reject petitioners' suggestion. The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. See Simmons v. United States, 390 U.S. 377, 389-390, 88 S.Ct. 967, 973-974, 19 L.Ed.2d 1247 (1968); Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960). The prosecutor argued that petitioners lacked standing to challenge the search because they did not own the rifle, the shells or the automobile. Petitioners did not contest the factual predicates of the prosecutor's argument and instead, simply stated that they were not required to prove ownership to object to the search. App. 23. The prosecutor's argument gave petitioners notice that they were to be put to their proof on any issue as to which they had the burden, and because of their failure to assert ownership, we must assume, for purposes of our review, that petitioners do not own the rifle or the shells. Combs v. United States, supra, was quite different. In Combs, the Government had not challenged Combs' standing at the suppression hearing and the issue of standing was not raised until the appellate level, where the Government conceded that its warrant was not based on probable cause. Because the record was "virtually barren of the facts necessary to determine" Combs' right to contest the search and seizure, the Court remanded the case for further proceedings. 408 U.S., at 227, 92 S.Ct., at 2286. The Government had requested the Court to remand for further proceedings on this issue. Brief for the United States in Combs v. United States, O.T. 1971, No. 71-517, pp. 40-41. 2 Although Jones v. United States was based upon an interpretation of Fed.Rule Crim.Proc. 41(e), the Court stated in Alderman v. United States, 394 U.S. 165, 173 n. 6, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969), that Rule 41(e) conforms to the general standard and is no broader than the constitutional rule. See United States v. Calandra, 414 U.S. 338, 348-349, n. 6, 94 S.Ct. 613, 620-621, 38 L.Ed.2d 561 (1974). There is an aspect of traditional standing doctrine that was not considered in Jones and which we do not question. It is the proposition that a party seeking relief must allege such a personal stake or interest in the outcome of the controversy as to assure the concrete adverseness which Art. III requires. See, e. g., O'Shea v. Littleton, 414 U.S. 488, 493, 94 S.Ct. 669, 674, 38 L.Ed.2d 674 (1974); Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Thus, a person whose Fourth Amendment rights were violated by a search or seizure, but who is not a defendant in a criminal action in which the illegally seized evidence is sought to be introduced, would not have standing to invoke the exclusionary rule to prevent use of that evidence in that action. See Calandra, supra, 414 U.S. at 352 n. 8, 94 S.Ct. at 622. 3 The necessity for a showing of a violation of personal rights is not obviated by recognizing the deterrent purpose of the exclusionary rule, Alderman v. United States, supra, 394 U.S., at 174, 89 S.Ct., at 966. Despite the deterrent aim of the exclusionary rule, we never have held that unlawfully seized evidence is inadmissible in all proceedings or against all persons. See, e. g., United States v. Ceccolini, 435 U.S. 268, 275, 98 S.Ct. 1054, 1059, 55 L.Ed.2d 268 (1978); Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067 (1976); United States v. Calandra, 414 U.S., at 348, 94 S.Ct., at 620. "[T]he application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." Ibid. 4 We have not yet had occasion to decide whether the automatic-standing rule of Jones survives our decision in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). See Brown v. United States, 411 U.S. 223, 228-229, 93 S.Ct. 1565, 1568-1569, 36 L.Ed.2d 208 (1973). Such a rule is, of course, one which may allow a defendant to assert the Fourth Amendment rights of another. 5 The search of the apartment in Jones was pursuant to a search warrant naming Jones and another woman as occupants of the apartment. The affidavit submitted in support of the search warrant alleged that Jones and the woman were involved in illicit narcotics traffic and kept a supply of heroin and narcotics paraphernalia in the apartment. 362 U.S., at 267-269, 80 S.Ct., at 734-735, and n. 2; App. in Jones v. United States, O.T. 1959, No. 69, p. 1. 6 For these same prudential reasons, the Court in Alderman v. United States rejected the argument that any defendant should be enabled to apprise the court of unconstitutional searches and seizures and to exclude all such unlawfully seized evidence from trial, regardless of whether his Fourth Amendment rights were violated by the search or whether he was the "target" of the search. This expansive reading of the Fourth Amendment also was advanced by the petitioner in Jones v. United States and implicitly rejected by the Court. Brief for Petitioner in Jones v. United States, O.T. 1959, No. 69, pp. 21-25. 7 So, for example, in Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), the Court focused on substantive Fourth Amendment law, concluded that a person in a telephone booth "may rely upon the protection of the Fourth Amendment," and then proceeded to determine whether the search was "unreasonable." In Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968), on the other hand, the Court concentrated on the issue of standing, decided that the defendant possessed it, and with barely any mention of the threshold substantive question of whether the search violated DeForte's own Fourth Amendment rights, went on to decide whether the search was "unreasonable." In both cases, however, the first inquiry was much the same. 8 This approach is consonant with that which the Court already has taken with respect to the Fifth Amendment privilege against self-incrimination, which also is a purely personal right. See, e. g., Bellis v. United States, 417 U.S. 85, 89-90, 94 S.Ct. 2179, 2183-2184, 40 L.Ed.2d 678 (1974); Couch v. United States, 409 U.S. 322, 327-328, 93 S.Ct. 611, 615-616, 34 L.Ed.2d 548 (1973); United States v. White, 322 U.S. 694, 698-699, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944). 9 The Court in Jones was quite careful to note that "wrongful" presence at the scene of a search would not enable a defendant to object to the legality of the search. 362 U.S., at 267, 80 S.Ct., at 734. The Court stated: "No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched." Ibid. (emphasis added). Despite this clear statement in Jones, several lower courts inexplicably have held that a person present in a stolen automobile at the time of a search may object to the lawfulness of the search of the automobile. See, e. g., Cotton v. United States, 371 F.2d 385 (CA9 1967); Simpson v. United States, 346 F.2d 291 (CA10 1965). 10 The Court in Mancusi v. DeForte, supra, also must have been unsatisfied with the "legitimately on premises" statement in Jones. DeForte was legitimately in his office at the time of the search and if the Mancusi Court had literally applied the statement from Jones, DeForte's standing to object to the search should have been obvious. Instead, to determine whether DeForte possessed standing to object to the search, the Court inquired into whether DeForte's office was an area "in which there was a reasonable expectation of freedom from governmental intrusion." 392 U.S., at 368, 88 S.Ct., at 2124; see id., at 376, 88 S.Ct., at 2127 (Black, J., dissenting). Unfortunately, with few exceptions, lower courts have literally applied this language from Jones and have held that anyone legitimately on premises at the time of the search may contest its legality. See, e. g., Garza-Fuentes v. United States, 400 F.2d 219 (CA5 1968); State v. Bresolin, 13 Wash.App. 386, 534 P.2d 1394 (1975). 11 This is not to say that such visitors could not contest the lawfulness of the seizure of evidence or the search if their own property were seized during the search. 12 Obviously, however, a "legitimate" expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as "legitimate." His presence, in the words of Jones, 362 U.S., at 267, 80 S.Ct., at 734, is "wrongful"; his expectation is not "one that society is prepared to recognize as 'reasonable.' " Katz v. United States, 389 U.S., at 361, 88 S.Ct., at 516 (Harlan, J., concurring). And it would, of course, be merely tautological to fall back on the notion that those expectations of privacy which are legitimate depend primarily on cases deciding exclusionary-rule issues in criminal cases. Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude. Expectations of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest. These ideas were rejected both in Jones, supra, and Katz, supra. But by focusing on legitimate expectations of privacy in Fourth Amendment jurisprudence, the Court has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment. No better demonstration of this proposition exists than the decision in Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), where the Court held that an individual's property interest in his own home was so great as to allow him to object to electronic surveillance of conversations emanating from his home, even though he himself was not a party to the conversations. On the other hand, even a property interest in premises may not be sufficient to establish a legitimate expectation of privacy with respect to particular items located on the premises or activity conducted thereon. See Katz, supra, 389 U.S., at 351, 88 S.Ct., at 511; Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 427, 17 L.Ed.2d 312 (1966); United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 748, 71 L.Ed. 1202 (1927); Hester v. United States, 265 U.S. 57, 58-59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924). 13 An examination of lower court decisions shows that use of this purported "bright line" test has led to widely varying results. For example, compare United States v. Westerbann-Martinez, 435 F.Supp. 690 (EDNY 1977) (defendant has standing to object to search of codefendant's person at airport because defendant was lawfully present at time of search), with Sumrall v. United States, 382 F.2d 651 (CA10 1967), cert. denied, 389 U.S. 1055, 88 S.Ct. 806, 19 L.Ed.2d 853 (1968) (defendant did not have standing to object to search of codefendant's purse even though defendant present at time of search). Compare Holloway v. Wolff, 482 F.2d 110 (CA8 1973) (defendant has standing to object to search of bedroom in house of third person because lawfully in house at time of search even though no showing that defendant had ever been given permission to use, or had ever been in, bedroom), with Northern v. United States, 455 F.2d 427 (CA9 1972) (defendant lacked standing to object to search of apartment-mate's bedroom even though present in apartment at time of search since no showing that defendant had permission to enter or use roommate's bedroom), and United States v. Miller, 145 U.S.App.D.C. 312, 449 F.2d 974 (1971) (defendant lawfully present in third person's office has standing to object to police entry into office since lawfully present but lacks standing to object to search of drawer of third person's desk since no showing that he had permission to open or use drawer). Compare United States v. Tussell, 441 F.Supp. 1092 (MD Pa.1977) (lessee does not have standing because not present at time of search), with United States v. Potter, 419 F.Supp. 1151 (ND Ill.1976) (lessee has standing even though not present when premises searched). Compare United States v. Fernandez, 430 F.Supp. 794 (ND Cal.1976) (defendant with authorized access to apartment has standing even though not present at time of search), with United States v. Potter, supra (defendants with authorized access to premises lack standing because not present at the time of the search). Compare United States v. Delguyd, 542 F.2d 346 (CA6 1976) (defendant stopped by police in parking lot of apartment house which he intended to visit lacks standing to object to subsequent search of apartment since not present in apartment at time of search), with United States ex rel. Eastman v. Fay, 225 F.Supp. 677 (SDNY 1963), rev'd on other grounds, 333 F.2d 28 (CA2 1964) (defendant-invitee stopped in hallway of apartment building has standing to object to search of apartment he intended to visit). 14 Commentators have expressed similar dissatisfaction with reliance on "legitimate presence" to resolve Fourth Amendment questions. Trager & Lobenfeld, The Law of Standing Under the Fourth Amendment, 41 Brooklyn L.Rev. 421, 448 (1975); White & Greenspan, Standing to Object to Search and Seizure, 118 U.Pa.L.Rev. 333, 344-345 (1970). And, as we earlier noted, supra, at 142 n. 10, the Court in Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968), also implicitly recognized that the phrase "legitimately on premises" simply does not answer the question whether the search violated a defendant's "reasonable expectation of freedom from governmental intrusion." See id., at 368, 88 S.Ct., at 2123. 15 As we noted in Martinez-Fuerte, "one's expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one's residence." 428 U.S., at 561, 96 S.Ct., at 3084. 16 The dissent states that Katz v. United States expressly recognized protection for passengers of taxicabs and asks why that protection should not also extend to these petitioners. Katz relied on Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960), as support for that proposition. The question of Rios' right to contest the search was not presented to or addressed by the Court and the property seized appears to have belonged to Rios. See United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). Additionally, the facts of that case are quite different from those of the present case. Rios had hired the cab and occupied the rear passenger section. When police stopped the cab, he placed a package he had been holding on the floor of the rear section. The police saw the package and seized it after defendant was removed from the cab. 17 For reasons which they do not explain, our dissenting Brethren repeatedly criticize our "holding" that unless one has a common-law property interest in the premises searched, one cannot object to the search. We have rendered no such "holding," however. To the contrary, we have taken pains to reaffirm the statements in Jones and Katz that "arcane distinctions developed in property . . . law . . . ought not to control." Supra, at 143, and n. 12. In a similar vein, the dissenters repeatedly state or imply that we now "hold" that a passenger lawfully in an automobile "may not invoke the exclusionary rule and challenge a search of that vehicle unless he happens to own or have a possessory interest in it." Post, at 156, 158-159, 163, 165, 168, 168-169. It is not without significance that these statements of today's "holding" come from the dissenting opinion, and not from the Court's opinion. The case before us involves the search of and seizure of property from the glove compartment and area under the seat of a car in which petitioners were riding as passengers. Petitioners claimed only that they were "legitimately on [the] premises" and did not claim that they had any legitimate expectation of privacy in the areas of the car which were searched. We cannot, therefore, agree with the dissenters' insistence that our decision will encourage the police to violate the Fourth Amendment. Post, at 168-169. 1 Allowing anyone who is legitimately on the premises searched to invoke the exclusionary rule extends the rule far beyond the proper scope of Fourth Amendment protections, as not all who are legitimately present invariably have a reasonable expectation of privacy. And, as the Court points out, the dissenters' standard lacks even the advantage of easy application. See ante, at 145-146. I do not share the dissenters' concern that the Court's ruling will "invit[e] police to engage in patently unreasonable searches every time an automobile contains more than one occupant." See post, at 168. A police officer observing an automobile carrying several passengers will not know the circumstances surrounding each occupant's presence in the automobile, and certainly will not know whether an occupant will be able to establish that he had a reasonable expectation of privacy. Thus, there will continue to be a significant incentive for the police to comply with the requirements of the Fourth Amendment, lest otherwise valid prosecutions be voided. Moreover, any marginal diminution in this incentive that might result from the Court's decision today is more than justified by society's interest in restricting the scope of the exclusionary rule to those cases where in fact there is a reasonable expectation of privacy. 2 There are sound reasons for this distinction: Automobiles operate on public streets; they are serviced in public places; they stop frequently; they are usually parked in public places; their interiors are highly visible; and they are subject to extensive regulation and inspection. The rationale of the automobile distinction does not apply, of course, to objects on the person of an occupant. 3 Six Members of the Court joined THE CHIEF JUSTICE in Chadwick, and the two Justices who dissented in Chadwick did not disagree with the automobile distinction. 4 The sawed-off rifle in this case was merely pushed beneath the front seat, presumably by one of the petitioners. In that position, it could have slipped into full or partial view in the event of an accident, or indeed upon any sudden stop. As the rifle shells were in the locked glove compartment, this might have presented a closer case if it had been shown that one of the petitioners possessed the keys or if a rifle had not been found in the automobile. The dissenting opinion suggests that the petitioners here took the same actions to preserve their privacy as did the defendant in Katz : Just as Katz closed the door to the telephone booth after him, petitioners closed the doors to their automobile. See post, at 165 n. 15. Last Term, this Court determined in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), that passengers in automobiles have no Fourth Amendment right not to be ordered from their vehicle, once a proper stop is made. The dissenting opinion concedes that there is no question here of the propriety of the stopping of the automobile in which the petitioners were riding. See post, at 160 n. 5. Thus, the closing of the doors of a vehicle, even if there were only one occupant, cannot have the same significance as it might in other contexts. 5 Even if one agreed with my dissenting Brethren that there was a Fourth Amendment violation in this case, the evidence seized would have been admissible under the modification of the exclusionary rule proposed by Mr. Justice WHITE in his dissenting opinion in Stone v. Powell, 428 U.S. 465, 538, 96 S.Ct. 3037, 3073, 49 L.Ed.2d 1067 (1976): "[T]he rule should be substantially modified so as to prevent its application in those many circumstances where the evidence at issue was seized by an officer acting in the good-faith belief that his conduct comported with existing law and having reasonable grounds for this belief. These are recurring situations; and recurringly evidence is excluded without any realistic expectation that its exclusion will contribute in the slightest to the purposes of the rule, even though the trial will be seriously affected or the indictment dismissed." See also Brown v. Illinois, 422 U.S. 590, 609-610, 95 S.Ct. 2254, 2264-2265, 45 L.Ed.2d 416 (1975) (POWELL, J., concurring in part). 1 For the most part, I agree with the Court's rejection, which was implicit in Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), of petitioners' secondary theory of target standing. 2 See Almeida-Sanchez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2537, 37 L.Ed.2d 596 (1973) (Automobile or no automobile, there must be probable cause for the search"). 3 E. g., United States v. Edwards, 577 F.2d 883 (CA5 1978) (en banc); Bustamonte v. Schneckloth, 448 F.2d 699 (CA9 1971), rev'd on other grounds, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Peisner, 311 F.2d 94 (CA4 1962). 4 Accord, Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 974, 19 L.Ed.2d 1247 (1968) ("[W]e have . . . held that rights assured by the Fourth Amendment are personal rights, and that they may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure"). 5 See United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975) ("The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest"); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Thus, petitioners of course have standing to challenge the legality of the stop, and the evidence found may be a fruit of that stop. See United States v. Martinez-Fuerte, 428 U.S. 543, 548, 556, 96 S.Ct. 3074, 3078, 3082, 49 L.Ed.2d 1116 (1976). Petitioners have not argued that theory here, perhaps because the justification necessary for such a stop is less than that needed for a search. See Terry v. Ohio, supra. Nor have petitioners chosen to argue that they were "arrested" in constitutional terms as soon as they were ordered from the vehicle and that the search was a fruit of that infringement on their personal rights. 6 See United States v. Lisk, 522 F.2d 228 (CA7 1975), cert. denied, 423 U.S. 1078, 96 S.Ct. 865, 47 L.Ed.2d 89 (1976) (noted in 64 Geo.L.J. 1187 (1976)), after remand, 559 F.2d 1108 (CA7 1977). Petitioners never asserted a property interest in the items seized from the automobile. The evidence found was useful to the prosecution solely on the theory that petitioners' possession of the items was probative of petitioners' identity as the robbers. In Jones the Court recognized automatic standing in possessory crimes because the prosecution should not be allowed to take contradictory positions in the suppression hearing and then at trial, and also because of the dilemma that the defendant would face if he were forced to assert possession to challenge a search. 362 U.S., at 263, 80 S.Ct., at 732. In Simmons we eliminated the dilemma by holding that the accused's testimony at the suppression hearing could not be used against him at trial. 390 U.S., at 394, 88 S.Ct., at 976. We also noted that the question whether automatic standing should be recognized for possessory evidence in nonpossessory crimes was an open one. Id., at 391-392, 88 S.Ct., at 974-975. Finally, in Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973), we reserved the question whether prosecutorial self-contradiction by itself warrants automatic standing. 7 See United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977). 8 See Cardwell v. Lewis, 417 U.S., at 591, 94 S.Ct., at 2470 (plurality opinion) ("[I]nsofar as Fourth Amendment protection extends to a motor vehicle, it is the right to privacy that is the touchstone of our inquiry"). 9 Accord, id., 417 U.S. at 589, 94 S.Ct. at 2468 ("The common-law notion that a warrant to search and seize is dependent upon the assertion of a superior government interest in property, . . . and the proposition that a warrant is valid 'only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized, or in the right to the possession of it,' . . . were explicitly rejected as controlling Fourth Amendment considerations in Warden v. Hayden, 387 U.S. 294, 302-306 [, 87 S.Ct. 1642, 18 L.Ed.2d 782] (1967)"). 10 Knox, Some Thoughts on the Scope of the Fourth Amendment and Standing to Challenge Searches and Seizures, 40 Mo.L.Rev. 1, 36 n. 238 (1975). 11 See also United States v. Matlock, 415 U.S. 164, 169, and 171 n. 7, 94 S.Ct. 988, 992, and 993 n. 7, 39 L.Ed.2d 242 (1974) ("The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, . . . but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched"). 12 Weinreb, Generalities of the Fourth Amendment, 42 U.Chi.L.Rev. 47, 54 (1974). 13 See id., at 52 ("The fourth amendment assures us that when we are in a private place we are, so far as the government is concerned, in private"). 14 The Court's reliance on property law concepts is additionally shown by its suggestion that visitors could "contest the lawfulness of the seizure of evidence or the search if their own property were seized during the search." Ante, at 142 n. 11. See also ante, at 149, and n. 16. What difference should that property interest make to constitutional protection against unreasonable searches, which is concerned with privacy? See Coolidge v. New Hampshire, 403 U.S. 443, 510-521, 91 S.Ct. 2022, 2060-2065, 29 L.Ed.2d 564 (1971) (WHITE, J., joined by BURGER, C. J., concurring and dissenting). Contrary to the Court's suggestion, a legitimate passenger in a car expects to enjoy the privacy of the vehicle whether or not he happens to carry some item along for the ride. We have never before limited our concern for a person's privacy to those situations in which he is in possession of personal property. Even a person living in a barren room without possessions is entitled to expect that the police will not intrude without cause. 15 Jones had permission to use the apartment, had slept in it one night, had a key, had left a suit and a shirt there, and was the only occupant at the time of the search. Ante, at 141 and 149. Petitioners here had permission to be in the car and were occupying it at the time of the search. Thus the only distinguishing fact is that Jones could exclude others from the apartment by using his friend's key. But petitioners and their friend the owner had excluded others by entering the automobile and shutting the doors. Petitioners did not need a key because the owner was present. Similarly, the Court attempts to distinguish Katz on the theory that Katz had "shut the door behind him to exclude all others," ante, at 149, but petitioners here did exactly the same. The car doors remained closed until the police ordered them opened at gunpoint. 16 Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). 17 See Bacigal, Some Observations and Proposals on the Nature of the Fourth Amendment, 46 Geo.Wash.L.Rev. 529, 538 (1978). 18 Investment Co. Institute v. Camp, 401 U.S. 617, 620, 91 S.Ct. 1091, 1093, 28 L.Ed.2d 367 (1971); cf. ante, at 140. 19 So far as we know, the owner of the automobile in question might have expressly granted or intended to grant exactly such an interest. Apparently not contemplating today's radical change in the law, petitioners did not know at the suppression hearing that the precise form of the invitation extended by the owner to the petitioners would be dispositive of their rights against governmental intrusion. 20 In fact, though it was not brought out at the suppression hearing, one of the petitioners is the former husband of the owner and driver of the car. He did testify at the suppression hearing that he was with her when she purchased it. 21 Contrary to the assertions in the majority and concurring opinions, I do not agree that the Court's rule is faithful to the purposes of the Fourth Amendment but reject it only because it fails to provide a "bright line." As the discussion, supra, at 159-166, indicates, this dissent disagrees with the Court's view that petitioners lack a reasonable expectation of privacy. The Court's ipse dixit is not only unexplained but also is unjustified in light of what persons reasonably do, and should be entitled to, expect. My point in this portion of the opinion is that the Court's lack of faithfulness to the purposes of the Fourth Amendment does not have even the saving grace of providing an easily applied rule. 22 To say that the Fourth Amendment goes beyond property rights, of course, is not to say that one not enjoying privacy in person would not be entitled to expect protection from unreasonable intrusions into the areas he owns, such as his house. E. g., Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). 23 See Ingber, Procedure, Ceremony and Rhetoric: The Minimization of Ideological Conflict in Deviance Control, 56 B.U.L.Rev. 266, 304-305 (1976) (police may often be willing to risk suppression at the behest of some defendants in order to gain evidence usable against those without constitutional protection); White & Greenspan, Standing to Object to Search and Seizure, 118 U.Pa.L.Rev. 333, 349, 365 (1970) (same).

01

439 U.S. 281 99 S.Ct. 712 58 L.Ed.2d 520 Jacquelyn E. HUNTER, petitioner,v.Gerald Wallace DEAN, Sheriff No. 77-6248 Supreme Court of the United States December 11, 1978 On Writ of Certiorari to the Supreme Court of Georgia. Dec. 11, 1978. PER CURIAM. 1 The writ of certiorari is dismissed as improvidently granted.

89

58 L.Ed.2d 444 99 S.Ct. 476 439 U.S. 180 UNITED CALIFORNIA BANK and Lillian Disney Truyens, Co-Executors of the Estate of Walter E. Disney, Petitioners,v.UNITED STATES. No. 77-1016. Argued Oct. 4, 1978. Decided Dec. 11, 1978. Syllabus The issue in this case involves the computation of the alternative income tax of a decedent's estate that had net long-term capital gains, a portion of which, pursuant to the decedent's will, was set aside for charitable purposes within the meaning of § 642(c) of the Internal Revenue Code of 1954. Under the provisions of the Code in effect during the years in question, taxpayers, including decedents' estates, with net long-term capital gains exceeding net short-term capital losses, paid either a "normal" income tax calculated by applying ordinary graduated rates to taxable income computed with a 50% capital-gains deduction permitted by § 1202 or, if it was a lesser sum, the alternative tax calculated under § 1201(b). In 1967 and 1968, petitioners, executors of an estate, realized long-term capital gains from the sale of securities included in the residue; there were no short-term capital losses. Petitioners set aside a portion of the long-term capital gains for the benefit of a specified charity as directed by the decedent's will. In the fiduciary income tax returns for 1967 and 1968, petitioners sought to use the alternative tax, and in computing this tax excluded from the long-term capital gains the portion set aside for charity. The District Director disallowed the exclusion, without which the alternative tax was higher than the normal tax, with the result that the latter tax was due. Additional taxes were assessed and paid, and this suit for refund followed. The District Court allowed the exclusion, but the Court of Appeals reversed. Held: The net long-term gains to which the alternative tax is applicable is reducible by the amount of the charitable set-asides in the years in question. Pp. 187-199. (a) While charitable distributions or set-asides by an estate are not within the conduit system applicable to capital gains passing to noncharitable beneficiaries under §§ 661(a) and 662(a) of the Code whereby an estate's distributable income to such beneficiaries is taxable to them rather than to the estate, this does not mean that similar treatment may not be accorded to charitable distributions or set-asides deductible by the estate under § 642(c). Section 642(c) serves to extract income destined for charitable entities from an estate's taxable income and thus supplies a conduit for charitable contributions similar to that provided by §§ 661(a) and 662(a) for income passing to taxable distributees. The express exclusion, pursuant to § 663, from §§ 661(a) and 662(a) of those amounts deductible under § 642(c) does not refute conduit treatment of such amounts, but rather such exclusion merely prevents a second deduction for charitable set-asides and recognizes as well that they are accorded separate treatment elsewhere in the Code. Pp. 187-194. (b) It is doubtful that Congress intended that an estate, which set aside part of its capital gain for charity, should pay a higher income tax than if the same portion of capital gain had been distributed to a taxable beneficiary or that the burden of the extra tax should be borne by the charities themselves or by the noncharitable residual legatees. The former allocation would contravene § 642(c), which permits deduction of charitable set-asides "without limitation," and would indirectly offend the tax exemption extended to charities by § 501. And allocating the burden to the noncharitable legatees would result in taxation of the capital gain accruing to their benefit at an effective rate higher than the 25% ceiling that § 1201 was intended to impose on the taxation of net long-term capital gains. Pp. 194-195. (c) The legislative history of the 1954 Code is not incompatible with the general applicability of the conduit concept and in fact clearly indicates that Congress sought rigorously to adhere to the theory that an estate or trust in general is to be treated as a conduit through which income passes to the beneficiary. Pp. 195-196. (d) A construction of the alternative tax that permits petitioners to exclude the charitable set-asides does not conflict with the decision in United States v. Foster Lumber Co., 429 U.S. 32, 97 S.Ct. 204, 50 L.Ed.2d 199. Pp. 197-199. (e) The principle that currently distributable income is not to be treated "as the [estate's] income, but as the beneficiary's," whose "share of the income is considered his property from the moment of its receipt by the estate," Freuler v. Helvering, 291 U.S. 35, 41-42, 54 S.Ct. 308, 310-311, 78 L.Ed. 634, survived in substance in the 1954 Code. To treat charitable and noncharitable distributions of capital gain differently for the purpose of computing the alternative tax under § 1201(b) "stresses the form at the neglect of substance," and "the letter of § 1201(b) must yield when it would lead to an unfair and unintended result," Statler Trust Co. v. Commissioner of Internal Revenue, 361 F.2d 128, 131. P. 199. 563 F.2d 400, reversed. Ronald E. Gother, Los Angeles, Cal., for petitioners. M. Carr Ferguson, Washington, D. C., for respondent. Mr. Justice WHITE delivered the opinion of the Court. 1 Under the provisions of the Internal Revenue Code of 1954 in effect during the years in question, taxpayers, including decedents' estates,1 with net long-term capital gains exceeding net short-term capital losses, paid either a "normal" income tax calculated by applying ordinary graduated rates to taxable income computed with a 50% capital-gains deduction permitted by § 1202 of the Code or, if it was a lesser sum, the alternative tax calculated as directed by § 1201(b).2 Under the latter section the taxable income for normal tax purposes was first reduced by the portion of the capital gain remaining in that figure, and the regular tax rates were then applied to the resulting amount. To this partial tax was added an amount equivalent to 25% of the "excess of the net long-term capital gain over the net short-term capital loss." 2 The issue here involves the computation of the alternative tax of a decedent's estate that had net long-term capital gains,3 a portion of which—pursuant to the terms of the decedent's will was "during the taxable year, paid or permanently set aside" for charitable purposes within the meaning of § 642(c), 26 U.S.C. § 642(c) (1964 ed.). That section permitted an estate to deduct "without limitation" amounts designated for charitable purposes by the controlling instrument, subject, however, to "proper adjustment . . . for any DEDUCTION ALLOWABLE TO THE ESTATE OR TRUST UNDER SECTION 1202 . . . ."4 3 * Walter E. Disney, who died in 1966, left 45% of the residue of his estate by will to a designated charitable trust. During the years 1967 and 1968, petitioners, executors of the estate, sold securities making up part of the residue of the estate, thereby realizing a long-term capital gain in the amount of $500,622.38 in 1967 and $1,058,018.43 in 1968. There were no short-term capital losses, but a net short-term capital gain of $16,944.16 was realized in 1967. Forty-five percent of the net long-term capital gain was set aside as part of the residue of the estate for the benefit of the specified charity. In their fiduciary income tax returns for these years, the executors sought to use the alternative tax prescribed by § 1201(b). In computing this tax, they excluded from the long-term capital gain to which the alternative tax was applicable the 45% portion of long-term gain permanently set aside for charity. The District Director disallowed this exclusion, without which the alternative tax was higher than the normal tax computed with the § 1202 capital-gains deduction. The normal tax rather than the alternative tax was therefore due. Additional taxes were assessed and paid, and this suit for refund followed. 4 Agreeing with the judgment of the Court of Appeals for the Second Circuit in Statler Trust v. Commissioner of Internal Revenue, 361 F.2d 128 (1966), the District Court sustained the executors' position that in computing the alternative tax under § 1201(b), any amount deductible by the estate from its gross income as being permanently set aside for charity could be excluded from the net long-term capital gain subject to the alternative tax. The Court of Appeals reversed, 563 F.2d 400 (CA9 1977), holding that the alternative tax was to be computed on the total excess of net long-term capital gains over net short-term capital losses, unreduced by any amount deductible by the estate as a charitable set-aside under § 642(c). The court expressly disagreed with the decision in Statler Trust, supra. We granted the executors' petition for certiorari, 435 U.S. 922, 98 S.Ct. 1483, 55 L.Ed.2d 514 (1978). 5 In this Court, as in the courts below, the parties agree on the method of calculating the normal tax but sharply disagree in regard to the proper computation of the alternative tax under § 1201(b). To illustrate, the normal tax for 1967 amounted to $88,000 in round figures.5 According to the executors, the alternative tax was $70,800,6 which, being a lesser amount than the normal tax, would be the amount due. The Government calculates the alternative tax to be $125,000 and thus insists that the normal tax in the amount of $88,000 was properly payable.7 As we have indicated, resolution of the issue turns on whether the net long-term gain to which the alternative tax is applicable is permissibly reducible by the amount of the charitable set-asides in the years in question. On this score, we agree with the executors and reverse the Court of Appeals. II 6 The Government's position rests on what it deems to be the plain language of § 1201(b), which directs that the "excess of the net long-term capital gain over the net short-term capital loss" be taxed. This language, it is said, unambiguously embraces income distributed to or set aside for charitable beneficiaries, even though in their hands the same income would be tax exempt. 7 The difficulty with the Government's position is that § 1201(b) is not always understood to mean what it seems to say. The Government concedes here that if 45% of the net long-term gain had been distributable to taxable beneficiaries rather than to charity, the net long-term gain subject to the § 1201(b) alternative tax would have been reduced to the extent of the noncharitable distribution, despite the failure of the section's language to provide for this treatment. In that event, the alternative tax would have been $70,800, precisely the amount due by the executors' computation where the 45% distribution or set-aside is for charitable purposes. Thus, it cannot be said that § 1201(b) never permits reduction of the total net long-term capital gain in response to imperatives emerging from other sections of the Code.8 8 The Government explains its application of § 1201(b) to capital gains distributable to noncharitable beneficiaries by noting that the Internal Revenue Code of 1954 manifests a general pattern of treating estates and trusts as conduits for distributable income. Accordingly, although estates are taxable entities, their distributable income is taxable to the beneficiaries rather than to the estates. Hence, to avoid assessing taxes against both the estate and its beneficiaries, the amounts includable in the beneficiaries' gross income are excluded in computing the estate's alternative tax. Sections 661(a) and 662(a) are the sections said to implement this end.9 Section 661(a) permits an estate or trust to deduct from its gross income any income required to be distributed currently and any other amount properly paid or credited or required to be distributed for the taxable year. Section 662(a) in turn essentially directs a beneficiary to include in its gross income amounts described in § 661(a).10 9 We agree that these provisions of the Code provide a sound justification for treating income distributable to taxable beneficiaries as belonging to them rather than to the estate and hence for reducing the net long-term gain to be taxed to the estate under § 1201(b) by the amount of gain distributable and taxable to the beneficiary. We also agree, as do the executors, that because § 66311 provides expressly that amounts qualifying as charitable deductions under § 642(c) "shall not be included as amounts falling within section 661(a) or 662(a)," charitable distributions or set-asides are not within the conduit system applicable to noncharitable beneficiaries. We reject the Government's view, however, that this explanation for the application of § 1201 to taxable distributions of capital-gains income also negates similar treatment for amounts of current income that are distributed to, or permanently set aside for, charitable beneficiaries and that are deductible by the estate under § 642(c). Indeed, the latter section serves to extract income destined for charitable entities from the taxable income of the estate and thus supplies a conduit for charitable contributions similar to that provided by §§ 661(a) and 662(a) in regard to income passing to taxable distributees. The express exclusion from §§ 661(a) and 662(a) of those amounts deductible under § 642(c) in no way refutes conduit treatment of such amounts. Rather, the exclusion pursuant to § 663 prevents a second deduction for charitable set-asides and recognizes as well that they are accorded separate treatment elsewhere under the Code.12 10 The Government makes much of § 1202's directive to exclude capital gains distributable to taxable beneficiaries in computing the capital-gains deduction, and of the absence of a similar mandate with respect to charitable distributions or set-asides, which are only subject to a deduction under § 642(c). Hence, it is argued, income distributions to charity are not to be considered the property of the beneficiary in the same sense as income passing to taxable entities is attributed to the distributees. We doubt that so much should turn on § 1202.13 The provision having the operative role in removing the noncharitable distribution from the estate income is § 661(a), and that section unmistakably provides a deduction for such sums, just as § 642(c) permits deductions for distributions to nontaxable entities. 11 Nor do we agree that charitable and noncharitable distributions of long-term gain should be regarded differently because in the one case the distribution is taxable in the hands of the beneficiary and in the other it is tax free. Indeed, it is arguable that the reduction of the gain taxable under § 1201(b) is even more justified when the income distribution is not only deductible from estate income but also looked upon with such favor that it is not taxable at all in the hands of the distributee.14 Furthermore, distributions of income to taxable beneficiaries retain the same character in their hands as they had in the hands of the estate. 26 U.S.C. § 662(b) (1964 ed.). If such distributions are wholly or partly composed of capital gain, the distributee treats them as such in his own return. He is entitled to offset the gain with his own capital losses that accrued in other transactions having nothing to do with the estate. He may, therefore, suffer no tax at all on the gain. Nevertheless, and even though the estate would have paid a tax on the capital gain had it not been distributable, the estate's net long-term capital gain for § 1201(b) purposes would be reduced by the amount of the distribution. The executors' position, with which we agree, is that a similar reduction of the net long-term gain taxable under § 1201 should not be denied simply because the beneficiary is a charity that will pay no tax on the gain set aside for it. 12 As the Government and the Court of Appeals construe the Internal Revenue Code, the estate in this case, which set aside part of its capital gain for charity, must pay a higher income tax than if the same portion of capital gain had been distributed to a taxable beneficiary. Because the tax will inevitably reduce the residue, the burden of the extra tax will be borne either by the charities themselves or by noncharitable residual legatees. We doubt that Congress intended either result. The former allocation would contravene the statutory provision for the deduction of charitable set-asides—§ 642(c) provides for their deductibility "without limitation"—and would indirectly offend the exemption extended to charities by § 501. Allocating the burden to the noncharitable legatees would result in taxation of the capital gain accruing to their benefit at an effective rate higher than the 25% ceiling that § 1201 was intended to impose on the taxation of net long-term capital gain. If all of the net long-term capital gain in this case had been added to corpus and none distributed to or set aside for charity, there is no doubt that the estate's alternative tax would have been lower than its normal tax and the tax on its net gain would have been limited to 25%. We cannot agree that the estate is not to have the full benefit of the 25% ceiling simply because part of its gain is set aside for a tax-exempt entity. III 13 In support of its position, the Government presents an interesting history of the income taxation of capital gains. The central submission of this exegesis is that in 1924 taxpayers were permitted to deduct the excess of ordinary deductions over ordinary income from capital gains subject to an alternative tax otherwise resembling § 1201, see Revenue Act of 1924, § 208(a)(5), 43 Stat. 262, but that in 1938, when the alternative tax in its present form emerged, no allowance was made for reduction of the gain subject to the alternative tax by ordinary losses, see Revenue Act of 1938, § 117(c)(1), 52 Stat. 501. This development is interpreted by the Government—mistakenly we think—as a deliberate rejection of the computational method advocated by the executors. 14 The issue here is not whether an excess of deductions over ordinary income may serve generally to reduce the gain subject to the alternative tax; rather, the inquiry concerns whether there is income properly attributable to the charitable beneficiary that should not be taxed to the estate at all. Assuredly, had all of the capital gain been set aside for charity and had there been no other estate income, there would have been no tax at all; the § 642 charitable deduction would have negated the entire capital-gains income of the estate, thus subjecting no taxable income whatsoever to the normal tax. Equally clear is that when 45% of the capital gain is set aside for a charitable entity, the gain subject to the normal tax is reduced to that extent. The Government does not dispute that the net effect of this § 1202 computation is to recognize the entire amount set aside for the exempt organization. The executors now ask no more than full recognition of the conduit principle in the computation of the alternative tax. The legislative history on which the Government relies is not at all incompatible with the general applicability of the conduit concept. In fact, the legislative history of the 1954 Code makes plain that Congress sought rigorously to adhere "to the conduit theory of the existing law[, which] means that an estate or trust is in general treated as a conduit through which income passes to the beneficiary." H.R.Rep. No. 1337, 83d Cong., 2d Sess., 61 (1954),15 U.S.Code Cong. & Admin.News, 1954, p. 4087. IV 15 The Government asserts nonetheless that a ruling favoring the executors would run counter to the Court's decision in United States v. Foster Lumber Co., 429 U.S. 32, 97 S.Ct. 204, 50 L.Ed.2d 199 (1976), rendered two Terms ago. That case involved § 172 of the Internal Revenue Code of 1954, 26 U.S.C. § 172 (1964 ed.), which provided that a net operating loss incurred by a corporate taxpayer in one year may be carried as a deduction against taxable income for preceding years. The issue was whether a loss was absorbed by capital gain in addition to ordinary income in the year to which it was first carried, or whether it was limited to offsetting only ordinary income. Section 172 in terms provided that, when a loss had been carried back to the first available year, it survived for carryover to subsequent periods only to the extent that it exceeded the taxable income of the earlier year. Because taxable income was defined generally in the Code to include both capital gain and ordinary income, the Court concluded that a loss carryback must be applied to the sum of the two. 16 The taxpayer in Foster Lumber never disputed that losses in carryover years could not be deducted from capital gain in executing the second step of the alternative tax.16 In fact, because of that limitation, the taxpayer insisted that loss carrybacks should not be treated as absorbed by capital gains for purposes of § 172. Otherwise, in utilizing the alternative tax, the taxpayer would lose the benefit of that portion of the loss corresponding to capital gain. In rejecting the taxpayer's contention, the Court noted that relevant legislative history belied any notion of a congressional intention to ameliorate all "wastage" of loss deductions. It was able to conclude that "Congress has not hesitated in this area to limit taxpayers to the enjoyment of one tax benefit even though it could have made them eligible for two." 429 U.S. at 46, 97 S.Ct. at 212. 17 The Government maintains that the executors' construction of the alternative tax conflicts with our assessment of its operation in Foster Lumber. The executors, in the Government's view, are no more entitled to exclude charitable set-asides in computing the second component of the alternative tax than was the taxpayer in Foster Lumber able to subtract excess ordinary deductions. But the construction of the alternative tax accepted by both parties in Foster Lumber, and assumed valid by this Court, merely accorded recognition to decisions discerning a congressional refusal evidenced by the legislative history discussed in Part III, supra to permit subtraction of ordinary losses from capital gains in the application of § 1201.17 The executors do not deny that a taxpayer cannot reduce capital gains by the amount of ordinary losses in figuring the alternative tax, but argue that capital gains set aside for charity are not taxable to an estate to begin with. The Government acknowledges that there is ample support in the provisions of Subchapter J for reducing the estate's net long-term capital gain by amounts distributable to taxable beneficiaries, and that Foster Lumber is thus distinguishable in that context. We believe the decision is similarly inapposite when charitable beneficiaries are involved.18 18 We think, then, that the Court of Appeals for the Second Circuit arrived at the correct result in the Statler Trust case. The court there recognized what this Court had earlier said: that currently distributable income is not treated "as the [estate's] income, but as the beneficiary's," whose "share of the income is considered his property from the moment of its receipt by the estate." Freuler v. Helvering, 291 U.S. 35, 41-42, 54 S.Ct. 308, 310-11, 78 L.Ed. 634 (1934). That principle survived in substance in the 1954 Code; and to treat differently charitable and noncharitable distributions of capital gain for the purpose of computing the alternative tax under § 1201(b) "stresses the form at the neglect of substance." Statler Trust v. Commissioner of Internal Revenue, 361 F.2d, at 131. We agree with the Second Circuit that "the letter of § 1201(b) must yield when it would lead to an unfair and unintended result." Ibid. 19 The judgment of the Court of Appeals is reversed. 20 It is so ordered. 21 Mr. Justice STEVENS, with whom Mr. Justice STEWART and Mr. Justice REHNQUIST join, dissenting. 22 Section 1202 of the Internal Revenue Code describes the "normal" method of computing the tax on a long-term capital gain.1 Section 1201 describes the "alternative" method which must be used if it produces a lesser tax than the § 1202 computation.2 Under the "normal" method, one-half of the gain is deducted and the other half is included in taxable income and taxed at ordinary graduated rates. If a taxpayer's income places him in a high enough tax bracket, the rate of tax under the normal method may exceed 25%. The "alternative" method prescribed by § 1201 protects the high-bracket taxpayer from this risk by imposing a flat 25% tax on the total capital gain and limiting the application of the graduated rates to the remainder of his income. 23 The alternative method was expressly designed to provide a limited benefit for a limited class of taxpayers. That class includes individuals, corporations, and fiduciaries. The statutory language used to describe the precise scope of the benefit is clear and has been consistently applied to corporate and individual taxpayers for decades. The question presented by this case is whether a departure from the plain meaning of the statute should be adopted for the special benefit of fiduciaries in the high tax brackets. 24 The Court does not squarely address that question. Instead it regards the controlling question as whether there is any justification for a distinction between distributions by a fiduciary to taxable beneficiaries and such distributions to nontaxable beneficiaries. In my judgment both questions should be answered by adhering to the language used by Congress to define taxpayers' responsibilities. The language requires both fiduciaries and nonfiduciaries to use the same methods of computing their capital-gains taxes, but draws a sharp distinction between distributions by fiduciaries to taxable beneficiaries and such distributions to charity. 25 * The controversy in this case centers around the meaning of the word "excess." The term is used both in § 1202's description of the "normal" tax and in § 1201's description of the "alternative" tax. In both sections "excess" is defined to mean the amount by which, in any year, the taxpayer's "net long-term capital gain exceeds the net short-term capital loss." The Government takes the straightforward position that "excess" means exactly what the statute says—the difference between the taxpayer's net long-term capital gain and his net short-term capital loss—and that this meaning is exactly the same in both the normal and the alternative tax computations. 26 With respect to § 1202's normal method, the petitioners do not challenge the Government's interpretation or the final tax that it produces. Both parties agree that the dollar value of the statutory term "excess" as used in the normal calculation of petitioners' 1967 income tax is $500,000.3 On their return petitioners recognized that the § 1202 capital-gains deduction of "50 percent of the amount of such excess," was $250,000, or half of the total net long-term capital gain of $500,000.4 In computing the § 1202 deduction petitioners did not even suggest that this excess should have first been reduced by the portion set aside for charity.5 27 It is with respect to the alternative method that the petitioners and the Government part company on the meaning of the term "excess." The § 1201 alternative calculation is actually a sequel to § 1202's normal calculation which provides a deduction of 50% of the "excess." In the alternative calculation the taxpayer deducts the second half of the "excess" from his ordinary income and computes a partial tax on the income remaining after the entire "excess" has been excluded; then he computes the alternative tax on the entire capital gain, or excess, at a 25% rate. 28 Using 1967 as an example, see ante, at 186, nn. 6 and 7, under the Government's view, not only the first 50% of the excess deducted pursuant to § 1202 but also the second 50% deducted pursuant to § 1201(b)(1) amounts to $250,000. This consistency effects an exclusion of the entire $500,000 capital gain from the calculation of the partial tax. Petitioners, however, make what I regard as the astounding contention that even though the first half of the excess calculated under § 1202 amounted to $250,000, the second half calculated under § 1201 amounted to only $137,500.6 Petitioners obtained this latter figure by treating the term "excess" in § 1201 as the amount remaining after 45% had been set aside for charity.7 29 In my judgment, there is simply no basis for accepting petitioners' argument that "excess" means one thing when used in § 1202 and quite another when used in § 1201. Nor is there any basis for rewriting the statutory definition of "excess" in either section in order to reduce the amount by which "net long-term capital gain exceeds the net short-term capital loss" by the portion of the capital gains set aside for charity. No rewriting is necessary in order to fulfill the purpose of the statute. For the Government's reading is consistent with both the plain meaning and the underlying purpose of the statutory provision. The Government's view allows every taxpayer either to include 50% of his capital gain in ordinary income and to take a charitable deduction under § 642 or, alternatively, to exclude the entire capital gain from the portion of his income which is taxed at ordinary rates (after charitable and other deductions have been taken) and to pay the 25% tax on the entire capital gain. 30 To be sure, in situations like this it may be to the taxpayer's advantage in calculating his alternative tax to take the charitable deduction, not against ordinary income subject to the partial tax, but rather against capital-gain income subject to the flat 25% tax rate. The advantage petitioners seek would avoid "wasting" a portion of the charitable deductions. But the fiduciary taxpayer is not alone in facing this risk as a result of the Government's interpretation. Individual and corporate taxpayers may similarly find that a portion of their charitable deductions are "wasted" in the calculation of the alternative tax. Nor do fiduciaries have any special interest in the policy of encouraging charitable contributions; from the point of view of the charity which receives the contributions, it does not matter whether the donor is an individual, a corporation, or a fiduciary. 31 Nonetheless, it is established and accepted that individual and corporate taxpayers are not free to calculate their alternative taxes in the manner which the Court today holds is acceptable for fiduciary taxpayers. While the Revenue Act of 1924 did in certain circumstances authorize the use of ordinary deductions to reduce the amount of capital gains,8 that aspect of the law was changed in 1938.9 Ever since that time, the Government's interpretation of the capital-gains tax computation has been applied consistently to individual and corporate taxpayers to deny them the benefit which petitioners today are granted.10 32 In upholding the Government's interpretation of the alternative tax calculation with respect to an individual taxpayer, the Tax Court observed: 33 "We agree with petitioners that respondent's determination renders ineffective a part of their charitable contributions. We repeat, however, that the alternative tax is imposed only if it is less than the tax computed under the regular method which permits deduction of the total contributions in the instant case."11 34 That observation is equally relevant to this case. That the "alternative" method, as computed by the Government, results in a greater total tax than the "normal" method means only that the taxpayer must pay the "normal" tax. The "alternative" method is just that: it is to be used in those cases, and only those cases, in which it produces a lower tax. 35 In this case, the statutory language is plain and unambiguous. It has been well understood for four decades in cases involving individual and corporate taxpayers. In view of this clarity and consistency of interpretation, the burden of demonstrating that the same language should be read differently for fiduciaries is especially heavy. In my judgment, petitioners have completely failed to carry that burden. II 36 Petitioners make no attempt to explain why the calculation of the alternative capital-gains taxes of estates and trusts should be any different from the calculations of such taxes for individual and corporate taxpayers. Nor do petitioners point to any statutory language which even arguably supports the different meanings they attach to the term "excess" in §§ 1202 and 1201(b). Instead, they contend that the Government has ignored the plain meaning of the term "excess" with respect to capital gains set aside for taxable beneficiaries and therefore should do the same at least in the calculation of the alternative tax—when the beneficiaries are charitable.12 37 In my view the Government has been faithful to the statute in its treatment of distributions to taxable beneficiaries, as well as in its treatment of charitable contributions. It is true, as petitioners argue, that the Government allows estates to exclude distributions to taxable beneficiaries from the "excess" long-term capital gains used in the alternative tax computations. But such distributions are also excluded from the "excess" in making the normal calculation pursuant to § 1202. The reason for this treatment is clear, and is critical in undermining petitioners' argument. 38 The express language of § 1202, which prescribes the normal deduction for capital gains, directs estates and trusts to exclude from their calculation of "excess" all amounts which are included in the income of taxable beneficiaries.13 Consistency in making the sequential calculations prescribed by §§ 1202 and 1201(b) mandates a similar exclusion from "such excess" with respect to both provisions; otherwise, the statutory scheme of the alternative method would be frustrated. For, as has already been noted, the first half of "such excess" is deducted under § 1202 and the other half of the same excess is deducted in the partial tax computation under § 1201. 39 The Government's reading of the statute not only gives the word "excess" a consistent meaning, but also effectuates the clearly stated intent of Congress expressed in §§ 661(a) and 662(a) of the Code. Those sections provide, as the majority so strongly emphasizes, that the estate is a mere conduit with respect to income distributed to taxable beneficiaries. In purpose and effect, they reflect a legislative decision to avoid a double tax on the same income and to place the burden for paying the single tax which is due on the beneficiary. The Government's interpretation of "excess" in § 1202 and § 1201(b), which excludes from the estate's income the amounts included in the income of the taxable beneficiary under § 662(a), clearly serves these purposes; any other interpretation would result in the double taxation of estate income which Congress, as the majority recognizes, has clearly sought to avoid.14 40 Obviously, there is no risk of double taxation when the beneficiary is a charity: The only potential taxpayer is the estate itself and the only question is how much tax it shall pay.15 When there are two potential taxpayers—the estate and the beneficiary—the total tax on the income of the estate is the sum of the taxes paid by both. Thus, while petitioners are technically correct in arguing that the estate's taxes in this case would have been lower, under the Government's interpretation, if the entire capital gain had been distributed to taxable beneficiaries, this argument ignores the taxes paid by the beneficiaries on their receipts from the estate. By treating the trust as a mere conduit for the income distributed to taxable beneficiaries, Congress shifted the tax burden without changing the amount of income subject to tax or imposing a double tax burden on the same income.16 41 Thus, whether one focuses on the word "excess" in connection with distributions to charities, or in connection with distributions to taxable beneficiaries, the Government ascribes the same meaning to the term in § 1201 as in § 1202. The Government's conclusion that § 1202's express direction to exclude distributions to taxable beneficiaries requires a like exclusion in § 1201 merely illustrates the paramount importance of giving the word "excess" the same meaning in both sections. It surely provides no support for petitioners' remarkable contention that two halves of the same excess are unequal. III 42 In final analysis, this case requires us to consider how the law in a highly technical area can be administered most fairly. I firmly believe that the best way to achieve evenhanded administration of our tax laws is to adhere closely to the language used by Congress to define taxpayers' responsibilities. Occasionally there will be clear manifestations of a contrary intent that justify a nonliteral reading, but surely this is not such a case. 43 I respectfully dissent. 1 Subchapter J of the Code, 26 U.S.C. § 641 et seq. (1964 ed.), deals with the taxation of estates, trusts, beneficiaries, and decedents. Section 641(b) provides that the tax on estates and trusts "shall be computed in the same manner as in the case of an individual, except as otherwise provided in this part." 2 Title 26 U.S.C. § 1202 (1964 ed.) provides: "In the case of a taxpayer other than a corporation, if for any taxable year the net long-term capital gain exceeds the net short-term capital loss, 50 percent of the amount of such excess shall be a deduction from gross income. In the case of an estate or trust, the deduction shall be computed by excluding the portion (if any), of the gains for the taxable year from sales or exchanges of capital assets, which, under sections 652 and 662 (relating to inclusions of amounts in gross income of beneficiaries of trusts), is includible by the income beneficiaries as gain derived from the sale or exchange of capital assets." Title 26 U.S.C. § 1201(b) (1964 ed.) provides: "(b) Other taxpayers. "If for any taxable year the net long-term capital gain of any taxpayer (other than a corporation) exceeds the net short-term capital loss, then, in lieu of the tax imposed by sections 1 and 511, there is hereby imposed a tax (if such tax is less than the tax imposed by such sections) which shall consist of the sum of— "(1) a partial tax computed on the taxable income reduced by an amount equal to 50 percent of such excess, at the rate and in the manner as if this subsection had not been enacted, and "(2) an amount equal to 25 percent of the excess of the net long-term capital gain over the net short-term capital loss." 3 Because the estate incurred no short-term or long-term capital losses in 1967 and 1968, for brevity's sake we sometimes speak simply of "net long-term capital gain" or "capital gain." 4 Title 26 U.S.C. § 642(c) (1964 ed.) provides in relevant part: "(c) Deduction for amounts paid or permanently set aside for a charitable purpose.— "In the case of an estate or trust (other than a trust meeting the specifications of subpart B) there shall be allowed as a deduction in computing its taxable income (in lieu of the deductions allowed by section 170(a), relating to deduction for charitable, etc., contributions and gifts) any amount of the gross income, without limitation, which pursuant to the terms of the governing instrument is, during the taxable year, paid or permanently set aside for a purpose specified in section 170(c), or is to be used exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals, or for the establishment, acquisition, maintenance or operation of a public cemetery not operated for profit. For this purpose, to the extent that such amount consists of gain from the sale or exchange of capital assets held for more than 6 months, proper adjustment of the deduction otherwise allowable under this subsection shall be made for any deduction allowable to the estate or trust under section 1202 (relating to deduction for excess of capital gains over capital losses). . . ." Where the § 642(c) charitable set-aside includes net long-term capital gain, the adjustment avoids a redundant subtraction of income destined for charitable beneficiaries. Its effect is to reduce the charitable deduction by one-half so as to reflect that part of the deduction already included in the 50% capital-gain deduction under § 1202. As indicated later in the text, the parties are not in dispute as to the interworkings of §§ 1202 and 642(c). It is agreed, moreover, that the set-asides at issue were intended for a charitable entity within the meaning of 26 U.S.C. §§ 170(c)(2), 501(c)(3) (1964 ed.). Section 170 permits deductions for contributions to charitable organizations, and § 501 affords a tax exemption to the organizations themselves. 5 The agreed method for computing the normal tax may be illustrated by utilizing the 1967 figures, rounded off: Normal tax Estate gross income, including long- term capital gain of $500,000 $595,000 Less: § 1202 deduction (50% of $500,000 net long-term capital gain) (250,000) Charitable deduction (remaining 50% of $225,000 charitable set-aside, plus $32,500 attrib- utable to short-term capital gain and ordinary income set aside for charitable legatees) (145,000) Miscellaneous deductions (54,000) Estate taxable income 146,000 6 The executors' application of § 1201(b) to income for 1967 approximated the following: Alternative tax Estate taxable income $146,000 Less: 50% reduction of net long-term capital gain under § 1201(b)(1) (137,500) The executors reduced the long- term capital gain of $500,000 by the 45% paid to charity(or $225,000), leaving a balance of $275,000 (50% of $275,000 = $137,500) Partial taxable income 8,500 Tax (at normal rates) on partial taxable income 1,800 Plus: tax on long-term capital gain (25% of $275,000) under § 1201(b)(2) 69,000 Total tax $70,800 7 The Government's computation, using approximate 1967 figures, was as follows: Alternative tax Estate taxable income $146,000 Less: 50% reduction of net long-term capital gain under § 1201(b)(1) (250,000) The capital-gain figure employed reflects the entire $500,000 of long-term capital gain unreduced by the amounts set aside for charity Partial taxable income -0- Tax (at normal rates) on partial taxable income -0- Plus: tax on long-term capital gain (25% of $500,000) under § 1201(b)(2) 125,000 Total tax $125,000 8 The alternative tax has been applied flexibly in another context to effectuate a clear congressional policy facially inconsistent with the language of § 1201. It has been held that the income tax deduction permitted by 26 U.S.C. § 691(c) for the amount of estate tax attributable to income in respect of a decedent can be offset against the estate's capital gains before application of the alternative tax. The deduction was thought necessary to honor the congressional purpose animating the § 691(c) deduction of avoiding imposition of both estate and income taxes on sums included in an estate as income in respect of a decedent. See, e. g., Read v. United States, 320 F.2d 550 (CA5 1963); Meissner v. United States, 364 F.2d 409, 176 Ct.Cl. 684 (1966); Estate of Sidles v. Commissioner of Internal Revenue, 65 T.C. 873 (1976), acq. 1976-2 Cum.Bull. 2. 9 Title 26 U.S.C. § 661(a) (1964 ed.) states: "(a) Deduction.— "In any taxable year there shall be allowed as a deduction in computing the taxable income of an estate or trust (other than a trust to which subpart B applies), the sum of— "(1) any amount of income for such taxable year required to be distributed currently (including any amount required to be distributed which may be paid out of income or corpus to the extent such amount is paid out of income for such taxable year); and "(2) any other amounts properly paid or credited or required to be distributed for such taxable year; "but such deduction shall not exceed the distributable net income of the estate or trust." Title 26 U.S.C. § 662(a) (1964 ed.) provides: "(a) Inclusion.— "Subject to subsection (b), there shall be included in the gross income of a beneficiary to whom an amount specified in section 661(a) is paid, credited, or required to be distributed (by an estate or trust described in section 661), the sum of the following amounts: "(1) Amounts required to be distributed currently.— "The amount of income for the taxable year required to be distributed currently to such beneficiary, whether distributed or not. If the amount of income required to be distributed currently to all beneficiaries exceeds the distributable net income (computed without the deduction allowed by section 642(c), relating to deduction for charitable, etc., purposes) of the estate or trust, then, in lieu of the amount provided in the preceding sentence, there shall be included in the gross income of the beneficiary an amount which bears the same ratio to distributable net income (as so computed) as the amount of income required to be distributed currently to such beneficiary bears to the amount required to be distributed currently to all beneficiaries. For purposes of this section, the phrase 'the amount of income for the taxable year required to be distributed currently' includes any amount required to be paid out of income or corpus to the extent such amount is paid out of income for such taxable year. "(2) Other amounts distributed. "All other amounts properly paid, credited, or required to be distributed to such beneficiary for the taxable year. If the sum of— "(A) the amount of income for the taxable year required to be distributed currently to all beneficiaries, and "(B) all other amounts properly paid, credited, or required to be distributed to all beneficiaries "exceeds the distributable net income of the estate or trust, then, in lieu of the amount provided in the preceding sentence, there shall be included in the gross income of the beneficiary an amount which bears the same ratio to distributable net income (reduced by the amounts specified in (A)) as the other amounts properly paid, credited or required to be distributed to the beneficiary bear to the other amounts properly paid, credited, or required to be distributed to all beneficiaries." 10 The amount deductible by the estate under § 661(a) and includable in the gross income of the beneficiaries under § 662(a) is generally limited by "distributable net income," defined in 26 U.S.C. § 643(a) (1964 ed.) as taxable income computed with certain modifications. One such modification is the exclusion of "[g]ains from the sale or exchange of capital assets . . . to the extent that such gains are allocated to corpus and are not (A) paid, credited, or required to be distributed to any beneficiary during the taxable year, or (B) paid, permanently set aside, or to be used for the purposes specified in section 642(c)." § 643(a)(3). Section 643(a)(3) has been variously interpreted by the Second and Ninth Circuits and by the parties in the course of this litigation. The Second Circuit in Statler Trust considered capital gains set aside for charity to be "inclu[ded] in the definition of distributable net income in § 643(a)(3)." 361 F.2d at 131, hence indicating conduit treatment for such set-asides. The court below announced a more expansive view. It implied that all "[a]mounts distributed or set aside for charity . . . remain in distributable net income," whether consisting of capital gain or ordinary income. 563 F.2d, at 404. This construction was thought supportive of the Government's position on the theory that " 'conduit' treatment [for charitable set-asides] would suggest that amounts distributed or set aside for charity would be excluded from . . . distributable net income." Ibid. (emphasis in original). The executors have insisted all along that the total amount of income constituting distributable net income as defined by § 643(a)(3) does not include charitable distributions or set-asides whether consisting of capital gain or not. In the executors' view, though § 643(a)(3) directs that taxable income be modified by excluding capital gains paid to principal except for income allocable to charity or possessing other specified characteristics, charitable set-asides are independently extracted from taxable income by virtue of the § 642(c) deduction. The Government, unlike the court below, has never suggested that charitable set-asides consisting of ordinary income are included in total distributable net income. But the construction developed in the Government's brief before this Court was that amounts deemed distributable to taxable beneficiaries do include capital gains added to residue but set aside for an exempt organization. The executors argued in reply, however, that computation of distributable net income pursuant to the Government's formal instructions for the years in question produced a figure equal to the amount of an estate's income exclusive of capital gains set aside for charity. At oral argument, the Government appeared to have changed its mind and to be conceding that its initial view and the more far-reaching construction of the Court of Appeals were in error: "[F]or purposes of this argument we would be willing to concede that the taxpayers' version of the computation of distributable net income and its [sic] attack on the example which we set out in our brief is correct. "But we do submit that that is just utterly irrelevant. You come to the question of distributable net income only after you have arrived at taxable income [which] has been diminished by that part of a charitable deduction or that part of a set aside for charity which comes out of gross income. "And it is only at that point . . . that . . . distributable net income adjustments become relevant." Tr. of Oral Arg. 35-36. We need not attempt to resolve this contrariety of views, for we agree with the Government that the nature and function of distributable net income have little or nothing to do with the treatment of charitable set-asides under § 1201(b). 11 Title 26 U.S.C. § 663(a)(2) (1964 ed.) provides: "(a) Exclusions.— "There shall not be included as amounts falling within section 661(a) or 662(a)— * * * * * "(2) Charitable, etc., distributions.— "Any amount paid or permanently set aside or otherwise qualifying for the deduction provided in section 642(c) (computed without regard to section 681)." 12 The legislative history of the 1954 Code makes plain that capital gains passing to charity were not encompassed by §§ 661(a) and 662(a)—which ensure conduit treatment of capital gains distributable to taxable beneficiaries—because income paid or set aside for charitable purposes was already immunized from taxation by § 642(c). The House Committee explained that "[s]ince the estate or trust is allowed a deduction under section 642(c) for these amounts, they are not allowed as an additional deduction for distributions nor are they treated as amounts distributed for purposes of section 662 in determining the amounts includible in the gross income of the beneficiaries." H.R.Rep.No.1337, 83d Cong., 2d Sess., A205 (1954); accord, S.Rep.No.1622, 83d Cong., 2d Sess., 354 (1954), U.S.Code Cong. & Admin.News 1954, pp. 4025, 4344. 13 Section 1202 is far less supportive of the Government's position than the dissent would indicate. Our dissenting colleagues contend that, in excluding capital gains distributable to taxable beneficiaries from the computation of the capital-gains deduction, § 1202 authorizes a modification of the meaning of "excess" of the net long-term capital gain over net short-term capital loss for purposes of § 1201 as well as § 1202. The modification must be extended to § 1201, according to the dissent, in order to preserve the scheme of the alternative tax. More specifically, half of the "excess" is deducted under § 1202, and the other half is deducted pursuant to the first step of § 1201; thus, to ensure that 100% of the excess is deducted by operation of both provisions, the term "excess" must be construed similarly for purposes of both sections. The same mandate is assertedly absent with regard to income passing to charity. See post, at 208-209. The dissenters' thesis, however, at most explains why the first step of § 1201 should be computed by excluding capital gains distributable to taxable beneficiaries. It provides no basis for removing such gains from the "excess" subject to the 25% flat rate under the second step of § 1201. Yet our dissenting Brethren agree that § 1201(b)(2)—the second stage of the alternative tax should not be literally construed to make capital gains passing to taxable beneficiaries taxable to the estate. The real reason is not to preserve consistency in abstract form, as the dissent's definitional argument misleadingly suggests, but to maintain loyalty to conduit principles as manifested by §§ 661(a) and 662(a) in the context of capital gains distributable to taxable beneficiaries. See post, at 209. Moreover, the absence of an exclusionary clause in § 1202 respecting capital gains distributable to charity is readily explainable in a fashion consistent with our position. The clause operates to prevent the estate from deducting under § 1202 50% of all capital gains distributable to taxable beneficiaries and then deducting an amount equal to 100% of such gains under § 661(a). A redundant deduction is precluded in the context of gains passing to charity by a different, but equally effective, method. Specifically, the charitable counterpart of § 661(a)—§ 642(c) expressly contemplates an adjustment for deductions already taken under § 1202. In that way, § 642(c) ensures that no more, but certainly no less, than the entire amount of gains passing to charity will be exempt from taxation under the normal tax. In substance, then, capital gains distributable to both taxable and nontaxable beneficiaries are removed from income taxable to the estate by the normal method. Nothing our Brethren say warrants similar treatment for the former but not the latter under § 1201. See also n. 14, infra. 14 The dissent suggests, however, that charitable and noncharitable distributions should be treated differently because the congressional policy against double taxation is implicated in the latter context but not the former. See post, at 209-210. But in exempting charitable entities from tax liability Congress manifested a purpose to insulate all income contributed to charity from taxation. Taxing income en route to charity while temporarily in the possession of an estate is as inconsistent with the congressional policy to exempt such income from federal taxation altogether as taxing other income twice is inconsistent with the congressional policy to tax such income once. 15 In the same vein the Senate Committee explained that "[y]our committee's bill contains the basic principles of existing law under which estates and trusts are treated as separate taxable entities, but are generally regarded as conduits through which income passes to the beneficiary." S.Rep. No. 1622 83d Cong., 2d Sess., 82 (1954), U.S.Code Cong. & Admin.News 1954, p. 4714. Capital gains were to be taxable "to the estate or trust [only] where the gains must be or are added to principal," id., at 343, U.S.Code Cong. & Admin.News 1954, p. 4984. See also H.R.Rep. No. 1337, 83d Cong., 2d Sess., A194-A195 (1954); H.R.Conf.Rep. No. 2543, 83d Cong., 2d Sess., 54 (1954), excepting amounts paid, credited, or required to be distributed to any beneficiary in the taxable year or "paid, permanently set aside, or to be used for the purposes specified in section 642(c)." Ibid., U.S.Code Cong. & Admin.News 1954, p. 4984. See also H.R.Rep. No. 1337, supra, at A194-A195; S.Rep. No. 1622, supra, at 343-344. This legislative history confirms our understanding of the statutory text as manifesting conduit treatment of capital gains passing to taxable and nontaxable beneficiaries alike. 16 The alternative tax involved in Foster Lumber was set forth in 26 U.S.C. § 1201(a) (1964 ed.), which was the corporate counterpart of § 1201(b), the provision directly involved herein. 17 See e. g., Weil v. Commissioner of Internal Revenue, 23 T.C. 424 (1954), aff'd, 229 F.2d 593 (CA6 1956). There, the taxpayers' total deduction, which included charitable deductions, exceeded their ordinary income, and they sought to utilize this excess to reduce the amount of their capital gains before applying the 25% tax available under § 1201(b). The claim was rejected because there was no basis in § 1201 or other provisions of the Code for reducing net long-term capital gains by both the net short-term losses and by the excess of ordinary deductions over ordinary income and because pertinent legislative history contradicted the taxpayers' construction. See Part III, supra. The court in the Weil case, however, had no occasion to consider whether the net long-term gain belonging to a charitable income beneficiary of an estate may be excluded by the estate in computing the alternative tax. See Chartier Real Estate Co. v. Commissioner of Internal Revenue, 52 T.C. 346, 355 (1969), aff'd, 428 F.2d 474 (CA1 1970). 18 It is notable, too, that the executors do not endeavor to pyramid the tax advantages associated with charitable income and capital gains in the face of a discernible congressional intention to "limit taxpayers to the enjoyment of one tax benefit." United States v. Foster Lumber Co., 429 U.S., at 46, 97 S.Ct., at 212. Indeed, it seems to us that the Government's construction itself yields cumulative tax benefits that Congress very likely never intended. According to the Government, § 1201(b)(1) compels the reduction of the taxable income figure computed under § 1202 by "an amount equal to 50 percent" of the total "excess" of net long-term capital loss rather than by 50% of the long-term gain not set aside for charity. Although not the case here, in other circumstances the deduction afforded by the Government's construction of § 1201(b)(1) with its diminution of the partial tax may more than offset the higher tax resulting from the Government's computation under § 1201(b)(2) and may yield an alternative tax lower than the tax resulting from the executors' approach and thus lower than that which would ensue if income moving to charity had never been held by the estate. The contingency may be demonstrated by a hypothetical example. Assuming an effective tax rate on ordinary net income of 60% and estate receipts of $125,000 in ordinary income and $500,000 in long-term capital gains, with one-half of the capital gains allocable to a charitable benefi- ciary, the parties would compute the normal tax and the alternative tax as follows: Normal tax Gross income $625,000 Less: § 1202 deduction (250,000) § 642(c) deduction (125,000) Taxable income 250,000 Tax (at 60% rate) $150,000 Alternative tax, per executors' method Estate taxable income $250,000 Less: 50% of that portion of long- term capital gain not set aside for charity (50% of $250,000) (125,000) Partial taxable income 125,000 Partial tax (60% effective rate) 75,000 Tax on long-term capital gain not set aside for charity (25% of $250,000) 62,500 Total alternative tax $137,500 Alternative tax, per Government's method Estate taxable income $250,000 Less: 50% of all the excess of net long-term capital gain over net short- term capital loss (50% of $500,000) (250,000) Partial taxable income -0- Partial tax -0- Tax on all net long-term capital gain (25% of $500,000) 125,000 Total alternative tax $125,000 Significantly, the executors do not complain that the redundant deduction available under the Government's computational method would be "wasted" were ordinary income inadequate to absorb it. Quite to the contrary, it is their position that the cumulative deduction would never be afforded under conduit treatment of capital gains en route to charity. 1 "§ 1202. Deduction for capital gains. "In the case of a taxpayer other than a corporation, if for any taxable year the net long-term capital gain exceeds the net short-term capital loss, 50 percent of the amount of such excess shall be a deduction from gross income. In the case of an estate or trust, the deduction shall be computed by excluding the portion (if any), of the gains for the taxable year from sales or exchanges of capital assets, which, under sections 652 and 662 (relating to inclusions of amounts in gross income of beneficiaries of trusts), is includible by the income beneficiaries as gain derived from the sale or exchange of capital assets." 26 U.S.C. § 1202 (1964 ed.). 2 Section 1201(b) provides: "Other taxpayers. "If for any taxable year the net long-term capital gain of any taxpayer (other than a corporation) exceeds the net short-term capital loss, then, in lieu of the tax imposed by sections 1 and 511, there is hereby imposed a tax (if such tax is less than the tax imposed by such sections) which shall consist of the sum of— "(1) a partial tax computed on the taxable income reduced by an amount equal to 50 percent of such excess, at the rate and in the manner as if this subsection had not been enacted, and "(2) an amount equal to 25 percent of the excess of the net long-term capital gain over the net short-term capital loss." 26 U.S.C. § 1201(b) (1964 ed.). The "alternative" method for corporate taxpayers is specified in 26 U.S.C. § 1201(a) (1964 ed.). 3 The dollar value of the statutory term "excess" is reflected twice in the normal tax calculation. Taking the rounded-off figures from petitioners' 1967 return, set forth ante, at 185 n. 5 of the Court's opinion, the estate's 1967 gross income of $595,000 included net long-term capital gain of $500,000. As the first step in the calculation of its normal tax, the taxpayer is allowed a deduction of "50 percent of the amount of such excess " or $250,000. 26 U.S.C. § 1202 (1964 ed.) (emphasis added). In the next step, the charitable deduction is taken: Under § 642(c) of the Code, an adjustment in the charitable deduction is required to reflect the fact that half of the contribution out of long-term capital gains has already been included in the § 1202 "deduction for excess of capital gains over capital losses." This required adjustment yields a net charitable deduction of $112,500 rather than the total amount of $225,000 actually set aside for charity. After subtracting all other miscellaneous deductions, the estate shows a taxable income of $146,000 subject to tax, at normal rates, of $88,000. 4 Because the estate incurred no short-term or long-term capital losses in 1967 and 1968, I sometimes refer simply to "net long-term capital gain" or "capital gain." 5 They recognized as well that for purposes of the § 642(c) adjustment to the charitable deduction, "the excess of capital gains over capital losses" referred to the total excess, without any prior reduction for charitable contributions. § 642(c), with emphasis added to the portion relevant to this discussion, provides: "§ 642. Special rules for credits and deductions. * * * * * "(c) Deduction for amounts paid or permanently set aside for a charitable purpose.— "In the case of an estate or trust (other than a trust meeting the specifications of subpart B) there shall be allowed as a deduction in computing its taxable income (in lieu of the deductions allowed by section 170(a), relating to deduction for charitable, etc., contributions and gifts) any amount of the gross income, without limitation, which pursuant to the terms of the governing instrument is, during the taxable year, paid or permanently set aside for a purpose specified in section 170(c), or is to be used exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals, or for the establishment, acquisition, maintenance or operation of a public cemetery not operated for profit. For this purpose, to the extent that such amount consists of gain from the sale or exchange of capital assets held for more than 6 months, proper adjustment of the deduction otherwise allowable under this subsection shall be made for any deduction allowable to the estate or trust under section 1202 (relating to deduction for excess of capital gains over capital losses). In the case of a trust, the deduction allowed by this subsection shall be subject to section 681 (relating to unrelated business income and prohibited transactions)." 26 U.S.C. § 642 (c) (1964 ed.) (emphasis added). 6 The Court makes the equally astonishing suggestion that even if the relationship between § 1202 and the first step in the § 1201 calculation requires that "excess" be given the same meaning, that word may nevertheless be given a different meaning in the second step of the § 1201 calculation. See ante, at 192-193 n. 13. This suggestion is no more tenable than the taxpayer's argument and would produce a different tax than the Court approves today. 7 Although the exclusion of $137,500 instead of $250,000 produces a higher partial tax than a consistent interpretation of the word "excess," this gambit is rewarded by the second step of the alternative calculation. Section 1201(b)(2) imposes a flat 25% tax on the excess of the net long-term capital gain over the net short-term capital loss: Under the Government's view, this amounts to $125,000 (25% of $500,000) whereas under petitioner's view the capital gains tax is only $68,750 (25% of $275,000). 8 Section 208(a)(5) of the Revenue Act of 1924 provided: "The term 'capital net gain' means the excess of the total amount of capital gain over the sum of (A) the capital deductions and capital losses, plus (B) the amount, if any, by which the ordinary deductions exceed the gross income computed without including capital gain." 43 Stat. 262. 9 "The 1938 Revenue Act combined the percentage concept of the then existing law with the alternative tax principles of the revenue acts in effect prior to the 1934 Act. Except for changes immaterial to the issue in the instant case, the provisions of the 1938 Act and the 1939 Code in effect for 1948 are substantially the same. Compare sections 117(b) and 117(c)(1) of the 1938 Act with sections 117(b) and 117(c)(2) of the 1939 Code as amended. The effect of section 117 of the 1938 Act, as intended by the Congress which first enacted it, was to place an upper limit on the amount of tax levied upon capital gain. See S.Rept. No. 1567, 75th Cong., at p. 20, reported in 1939-1 C. B. (Part 2) 779, 794. The 1938 Act thus provided that the taxable portion of such gain is either added to the taxpayer's other gross income and taxed in the regular manner at the prescribed rate, or taxed separately at a flat rate, according to which method produces the lesser tax." Weil v. Commissioner of Internal Revenue, 23 T.C. 424, 428-429 (1954), aff'd, 229 F.2d 593 (CA6 1956). 10 In two especially thoughtful opinions, the Tax Court upheld this interpretation with respect to individual and corporate taxpayers, finding it to be mandated by the plain words and legislative history of the statutory provisions involved. See Weil v. Commissioner, supra; Chartier Real Estate Co. v. Commissioner of Internal Revenue, 52 T.C. 346, 350-356 (1969), aff'd 428 F.2d 474 (CA1 1970). In its opinion today, the Court does not in any way question the soundness of these decisions. Instead it has fashioned a special rule, applicable only to fiduciaries. 11 Weil v. Commissioner of Internal Revenue, supra, at 432. 12 Were it in fact the case that the Government's interpretation of "excess" with respect to distributions to taxable beneficiaries is inconsistent with the statute, that would hardly establish that it should apply the same incorrect interpretation when the beneficiaries are not taxable. It would only suggest that the Government ought to address and correct the mistaken interpretation. An error is not cured by compounding it, nor does a taxpayer have a right to be freed of a correct calculation of his taxes because the Government may have erred with respect to a different class of taxpayers. 13 "In the case of an estate or trust, the deduction shall be computed by excluding the portion (if any), of the gains for the taxable year from sales or exchanges of capital assets, which, under sections 652 and 662 (relating to inclusions of amounts in gross income of beneficiaries of trusts), is includible by the income beneficiaries as gain derived from the sale or exchange of capital assets." 26 U.S.C. § 1202 (1964 ed.). 14 Effectuation of that intent also explains the other departures from the literal meaning of § 1201 in the cases cited ante, at 187-188 n. 8. 15 In calculating its taxable income under the normal method, the estate is, as the Court emphasizes, permitted under § 642(c) a deduction "without limitation" for its charitable contributions. But this provision for charitable deductions "without limitation" serves only to free fiduciaries from the percentage limitations of § 170(b) applicable to individual taxpayers; it does not, in itself, support or establish "conduit" treatment for charitable contributions in the calculation of the alternative tax. 16 Petitioners also argue that because the estate's capital-gains tax must be paid out of the residue, the effective rate of the tax on the beneficiaries may exceed the 25% ceiling the alternative tax provisions were designed to impose. See ante, at 194-195. The ceiling on the tax on the estate's $500,000 gain in 1967 amounted to $125,000. This litigation involves a dispute over whether the estate's total tax in 1967 amounts to $88,000 or only $70,800. Petitioners do not explain how the resolution of that dispute can have the effect of breaking through the $125,000 ceiling.

1112

439 U.S. 170 99 S.Ct. 471 58 L.Ed.2d 435 Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare, Appellant,v.Grace AZNAVORIAN, etc. Grace AZNAVORIAN, etc., Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare. Nos. 77-991, 77-5999. Argued Nov. 6, 1978. Decided Dec. 11, 1978. Syllabus Section 1611(f) of the Social Security Act, which provides that no benefits under the Supplemental Security Income (SSI) program for the needy aged, blind, and disabled are to be paid for any month that the recipient spends entirely outside of the United States, held to be constitutional as having a rational basis and not to impose an impermissible burden on the freedom of international travel in violation of the Fifth Amendment. That section, which merely has an incidental effect on international travel (Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204; Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992, and Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179, distinguished), clearly effectuates the basic congressional decision to limit SSI payments to residents of the United States. Moreover, § 1611(f) may represent Congress' decision simply to limit payments to those who need them in the United States. While these justifications for the legislation may not be compelling, its constitutionality, in contrast to the standard applied to laws that penalize the right of interstate travel, does not depend on compelling justifications. Pp. 174-178. D.C., 440 F.Supp. 788, reversed. Peter Buscemi, Washington, D. C., for Califano, pro hac vice, by special leave of Court. Peter A. Schey, Los Angeles, Cal., for Aznavorian. Mr. Justice STEWART delivered the opinion of the Court. 1 In 1972 Congress enacted the Supplemental Security Income program to aid the needy aged, blind, and disabled. The legislation creating the program provides that benefits are not to be paid for any month that the recipient spends entirely outside of the United States. The primary issue in the present litigation is whether this restriction is a constitutionally impermissible burden on the asserted right of international travel. 2 * The 1972 Social Security Act Amendments repealed Titles I, X, and XIV of the Act, which had provided federal aid for state programs for the aged, blind, and disabled. The amendments replaced those programs with a new Title XVI, the Supplemental Security Income (SSI) program. 86 Stat. 1465, 42 U.S.C. § 1381 et seq. This program is administered by the Federal Government through the Social Security Administration. To be eligible to receive benefits under the program, a person must be a resident of the United States, 42 U.S.C. § 1382c(a)(1)(B); be either over 65 years old or meet statutory definitions of blindness and disability, § 1382c(a); and be poor, § 1382a (income), § 1382b (resources). 3 Section 1611(f) of the Social Security Act, as amended in 1972, provides that no person shall receive SSI benefits "for any month during all of which such individual is outside the United States . . . ." The section further provides that 4 "after an individual has been outside the United States for any period of 30 consecutive days, he shall be treated as remaining outside the United States until he has been in the United States for a period of 30 consecutive days."1 5 Thus, if a recipient were to leave the country on May 5 and return on July 10, he would receive his entire payment for May. He would, however, lose his benefits for June and July. He would, have been actually away the entire month of June, and, because he had been gone for more than 30 days, he would be treated as having remained outside the country until August 9. In August his payments would automatically resume. 6 Grace Aznavorian is an American citizen. In 1974 she was a resident of California and an eligible recipient of SSI benefits. On July 21, 1974, she left the United States and traveled to Guadalajara, Mexico. Because of an unexpected illness, she remained in Mexico until September 1, 1974. Accordingly, she did not receive benefits for August or September. 7 Aznavorian pursued her administrative remedies without success. She then filed this suit in the United States District Court for the Southern District of California, seeking judicial review of the Secretary's decision.2 Asserting that the suspension of her benefits denied her due process, equal protection, and the right of international travel, all as guaranteed by the Fifth Amendment, she sought declaratory relief and the benefits which had been denied because of her visit to Mexico.3 She moved for certification of a plaintiff class including all persons denied SSI benefits because of international travel. The Secretary moved for summary judgment. 8 The District Court first considered the motion for class certification. It concluded that a class action was not barred by the Social Security Act because the class would be limited to those who had presented unsuccessful claims to the Secretary. Because the requirements of Fed.Rule Civ.Proc. 23 were otherwise satisfied, it certified the class.4 440 F.Supp. 788, 792-794. 9 The court then granted summary judgment to the plaintiff class. Because international travel is "a basic constitutional right," the District Court held that the statute must bear "a fair and substantial relationship in fact to the governmental purposes that it seeks to achieve." Id., at 795, 797. The court concluded that the limitation on benefits was not sufficiently related to the Government's interest in making payments only to bona fide residents of the United States to be constitutionally valid. 10 The District Court ordered the Secretary to provide notice of its decision to all class members who were receiving benefits at the time of the order or would have been receiving benefits except for § 1611(f). It also ordered the Secretary to pay benefits to those members of the class whose benefits had been suspended because of § 1611(f), but who in fact continued to be actual residents of the United States. Because its order was limited to persons who were still needy within the meaning of the SSI program, the court believed that its order did not violate the sovereign immunity of the United States. 440 F.Supp., at 802-803. 11 The Secretary appealed directly to this Court, and Aznavorian filed a cross-appeal under 28 U.S.C. § 1252. We noted probable jurisdiction of both appeals and consolidated the cases. 435 U.S. 921, 98 S.Ct. 1482, 55 L.Ed.2d 514. II 12 The Secretary raises two questions on his appeal.5 First, he contends that § 1611(f) does not violate the Fifth Amendment. Second, he urges that in any event the District Court's award of retroactive monetary relief is barred by sovereign immunity. Aznavorian's cross-appeal takes the position that the District Court erred in awarding monetary relief only to those class members who were eligible for SSI benefits on the date of its order. Because we conclude that § 1611(f) does not violate the Constitution, there is no occasion to consider the remedial issues raised by the appeal and cross-appeal. 13 Social welfare legislation, by its very nature, involves drawing lines among categories of people, lines that necessarily are sometimes arbitrary. This Court has consistently upheld the constitutionality of such classifications in federal welfare legislation where a rational basis existed for Congress' choice. 14 "The basic principle that must govern an assessment of any constitutional challenge to a law providing for governmental payments of monetary benefits is well established. . . . In enacting legislation of this kind a government does not deny equal protection 'merely because the classifications made by its laws are imperfect. If the classification has some "reasonable basis," it does not offend the Constitution simply because the classification "is not made with mathematical nicety or because in practice it results in some inequality." ' Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491. 15 "To be sure, the standard by which legislation such as this must be judged 'is not a toothless one,' Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 2764, 49 L.Ed.2d 651. But the challenged statute is entitled to a strong presumption of constitutionality." Mathews v. de Castro, 429 U.S. 181, 185, 97 S.Ct. 431, 434, 50 L.Ed.2d 389. 16 See, e. g., Califano v. Jobst, 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed.2d 228; Califano v. Goldfarb, 430 U.S. 199, 210, 97 S.Ct. 1021, 1028, 51 L.Ed.2d 270; Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478; Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522; Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285; Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231. 17 Aznavorian argues that, even though § 1611(f) may under this standard be valid as against an equal protection or due process attack, a more stringent standard must be applied in a constitutional appraisal of § 1611(f) because this statutory provision limits the freedom of international travel. We have concluded, however, that § 1611(f), fortified by its presumption of constitutionality, readily withstands attack from that quarter as well. 18 The freedom to travel abroad has found recognition in at least three decisions of this Court. In Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204, the Secretary of State had refused to issue a passport to a person because of his links with leftwing political groups. The Court held that Congress had not given the Secretary discretion to deny passports on such grounds. Although the holding was one of statutory construction, the Court recognized that freedom of international travel is "basic in our scheme of values" and an "important aspect of the citizen's 'liberty.' " Id., at 126, 127, 78 S.Ct., at 1118, 1119. Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992, dealt with § 6 of the Subversive Activities Control Act, 50 U.S.C. § 785, which made it a criminal offense for a member of the Communist Party to apply for a passport. The Court again recognized that the freedom of international travel is protected by the Fifth Amendment. Congress had legislated too broadly by restricting this liberty for all members of the party. In Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179, the Court upheld the Secretary's decision not to validate passports for travel to Cuba. The Court pointed out that "the fact that a liberty cannot be inhibited without due process of law does not mean that it can under no circumstances be inhibited." Id., at 14, 85 S.Ct., at 1279. 19 Aznavorian urges that the freedom of international travel is basically equivalent to the constitutional right to interstate travel, recognized by this Court for over 100 years. Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119; Twining v. New Jersey, 211 U.S. 78, 97, 29 S.Ct. 14, 18, 53 L.Ed. 97; Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 129, 45 L.Ed. 186; Crandall v. Nevada, 6 Wall. 35, 43-44, 18 L.Ed. 744; Passenger Cases, 7 How. 283, 492, 12 L.Ed. 702 (Taney, C. J., dissenting). But this Court has often pointed out the crucial difference between the freedom to travel internationally and the right of interstate travel. 20 "The constitutional right of interstate travel is virtually unqualified, United States v. Guest, 383 U.S. 745, 757-758, 86 S.Ct. 1170, 1177-1178, 16 L.Ed.2d 239 (1966); Griffin v. Breckenridge, 403 U.S. 88, 105-106, 91 S.Ct. 1790, 1799-1800, 29 L.Ed.2d 338 (1971). By contrast the 'right' of international travel has been considered to be no more than an aspect of the 'liberty' protected by the Due Process Clause of the Fifth Amendment. As such this 'right,' the Court has held, can be regulated within the bounds of due process." (Citations omitted.) Califano v. Torres, 435 U.S. 1, 4 n. 6, 98 S.Ct. 906, 908, 55 L.Ed.2d 65. 21 See Shapiro v. Thompson, 394 U.S. 618, 643 n. 1, 89 S.Ct. 1322, 1336, 22 L.Ed.2d 600 (concurring opinion). Thus, legislation which is said to infringe the freedom to travel abroad is not to be judged by the same standard applied to laws that penalize the right of interstate travel, such as durational residency requirements imposed by the States. See Memorial Hospital v. Maricopa County, 415 U.S. 250, 254-262, 94 S.Ct. 1076, 1080-1084, 39 L.Ed.2d 306; Dunn v. Blumstein, 405 U.S. 330, 338-342, 92 S.Ct. 995, 1001-1003, 31 L.Ed.2d 274; Shapiro v. Thompson, supra, 394 U.S., at 634, 89 S.Ct., at 1331. 22 Unlike cases involving the right of interstate travel, this case involves legislation providing governmental payments of monetary benefits that has an incidental effect on a protected liberty, similar to the legislation considered in Califano v. Jobst, supra. There, another section of the Social Security Act was challenged because it "penalized" some beneficiaries upon their marriage. The Court recognized that the statutory provisions "may have an impact on a secondary beneficiary's desire to marry, and may make some suitors less welcome than others," 434 U.S., at 58, 98 S.Ct., at 101, but nonetheless upheld the constitutional validity of the challenged legislation.6 23 The statutory provision in issue here does not have nearly so direct an impact on the freedom to travel internationally as occurred in the Kent, Aptheker, or Zemel cases. It does not limit the availability or validity of passports. It does not limit the right to travel on grounds that may be in tension with the First Amendment. It merely withdraws a governmental benefit during and shortly after an extended absence from this country. Unless the limitation imposed by Congress is wholly irrational, it is constitutional in spite of its incidental effect on international travel. 24 It is to be noted that Aznavorian does not question the constitutional validity of the basic decision of Congress to limit SSI payments to residents of the United States, as provided in § 1614(a)(1)(B) of the Social Security Act, as amended, 42 U.S.C. § 1382c(a)(1)(B). The statutory provision in issue, § 1611(f), clearly effectuates this basic congressional decision. Certainly, the longer a person is out of the country, the greater the possibility that he is no longer a resident. The 30-day period provided in § 1611(f) is no more arbitrary than any similar time period would be. The additional provision of § 1611(f) that, once a person has been outside the country for 30 consecutive days or more, he will not be eligible for SSI payments until he has spent 30 consecutive days in the United States, simply adds assurance that the beneficiary's residency here is genuine. 25 Moreover, as the Secretary argues. Congress may simply have decided to limit payments to those who need them in the United States. The needs to which this program responds might vary dramatically in foreign countries. The Social Security Administration would be hard pressed to monitor the continuing eligibility of persons outside the country. And, indeed, Congress may only have wanted to increase the likelihood that these funds would be spent inside the United States. 26 These justifications for the legislation in question are not, perhaps, compelling. But its constitutionality does not depend on compelling justifications. It is enough if the provision is rationally based. Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491. Section 1611(f) meets that test. Accordingly, the judgment of the District Court is reversed. 27 It is so ordered. 28 Mr. Justice MARSHALL and Mr. Justice BRENNAN, concurring in the result. 29 We concur in the Court's conclusion that § 1611(f) of the Social Security Act is constitutional. We do not, however, understand the Court to imply that welfare legislation not involving a fundamental interest or suspect classification is subject to a lesser standard of review than the traditional rational basis test. To sustain classifications in welfare legislation that are "arbitrary," ante, at 174, so long as they are not "wholly irrational," ante, at 177, would be inconsistent with the settled principle that the "standard by which [welfare] legislation . . . must be judged 'is not a toothless one.' " Mathews v. de Castro, 429 U.S. 181, 185, 97 S.Ct. 431, 434, 50 L.Ed.2d 389 (1976), quoting Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 2764, 49 L.Ed.2d 651 (1976). 1 The section reads in full: "Notwithstanding any other provision of this title, no individual shall be considered an eligible individual for purposes of this title for any month during all of which such individual is outside the United States (and no person shall be considered the eligible spouse of an individual for purposes of this title with respect to any month during all of which such person is outside the United States). For purposes of the preceding sentence, after an individual has been outside the United States for any period of 30 consecutive days, he shall be treated as remaining outside the United States until he has been in the United States for a period of 30 consecutive days." 86 Stat. 1468, 42 U.S.C. § 1382(f). 2 Jurisdiction was based on two provisions of the Social Security Act: §§ 205(g) and 1631(c)(3), 42 U.S.C. §§ 405(g) and 1383(c)(3). 3 Her original complaint requested injunctive relief and moved that a three-judge court be convened. The motion for a three-judge court was later withdrawn along with the request for an injunction. 4 The certified class was defined as: "All individuals otherwise eligible for Supplemental Security Income, who have had such SSI denied, suspended, terminated, or interrupted pursuant to an initial written determination, an administration reconsideration, an administrative hearing, or an Appeals Council review, based solely on 42 U.S.C. § 1382(f) and regulations promulgated thereunder, from September 26, 1975 until the entry of this Order." 5 The Secretary's jurisdictional statement also claimed that a class action could not be maintained under § 205(g) of the Social Security Act. That question was raised but not decided in Norton v. Mathews, 427 U.S. 524, 96 S.Ct. 2771, 49 L.Ed.2d 672. While not abandoning his position, the Secretary has chosen not to argue the question in this case. The question is pending in Califano v. Elliott, No. 77-1511, cert. granted, 439 U.S. 816, 99 S.Ct. 75, 58 L.Ed.2d 106. It is conceded that Aznavorian, as an individual, met the jurisdictional requirements of § 205(g). 6 In contrast to the monetary-benefits legislation upheld in the Jobst case, a state law that burdened the freedom to marry was held constitutionally invalid later the same Term in Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618.

12

439 U.S. 280 99 S.Ct. 712 58 L.Ed.2d 519 Commonwealth of MASSACHUSETTS, petitioner,v.Charles F. WHITE No. 77-1388 Supreme Court of the United States December 11, 1978 Rehearing Denied Jan. 22, 1979. See 439 U.S. 1136, 99 S.Ct. 1061. On Writ of Certiorari to the Supreme Judicial Court of Massachusetts. Dec. 11, 1978. PER CURIAM. 1 The judgment is affirmed by an equally divided Court. 2 Mr. Justice POWELL took no part in the consideration or decision of this case.

01

439 U.S. 212 99 S.Ct. 492 58 L.Ed.2d 466 CORBITTv.NEW JERSEY. No. 77-5903. Argued Oct. 3, 1978. Decided Dec. 11, 1978. Syllabus Under the New Jersey homicide statutes, life imprisonment is the mandatory punishment for defendants convicted by a jury of first-degree murder, while a term of not more than 30 years is the punishment for second-degree murder. Trials to the court and guilty pleas are not allowed in murder cases, but a plea of non vult is allowed. If such a plea is accepted, the judge need not decide whether the murder is first or second degree, but the punishment is either life imprisonment or the same punishment as is imposed for second-degree murder. Appellant, after pleading not guilty to a murder indictment, was convicted by a jury of first-degree murder and accordingly sentenced to life imprisonment. The New Jersey Supreme Court affirmed, rejecting appellant's contention that the possibility of a sentence of less than life upon the plea of non vult, combined with the absence of a similar possibility when found guilty of first-degree murder by a jury, was an unconstitutional burden on his rights under the Fifth, Sixth, and Fourteenth Amendments and also violated his right to equal protection under the Fourteenth Amendment. Held : 1. The New Jersey sentencing scheme does not impose an unconstitutional burden on appellant's rights under the Fifth, Sixth, and Fourteenth Amendments. Pp. 216-225. (a) Although the mandatory punishment when a jury finds a defendant guilty of first-degree murder is life imprisonment, the risk of that punishment is not completely avoided by pleading non vult because the judge accepting the plea has authority to impose a life term. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, distinguished. Pp. 216-217. (b) Not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid; specifically, there is no per se rule against encouraging guilty pleas. Here, the probability or certainty of leniency in return for a non vult plea did not invalidate the mandatory life sentence, there having been no assurances that a plea would have been accepted and if it had been that a lesser sentence would have been imposed. Cf. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604. Pp. 218-222. (c) If appellant had tendered a plea and if it had been accepted and a term of years less than life had been imposed, this would simply have recognized that there had been a plea and that in sentencing it is constitutionally permissible to take that fact into account. Absent the abolition of guilty pleas and plea bargaining, it is not forbidden under the Constitution to extend a proper degree of leniency in return for guilty pleas, and New Jersey has done no more than that. Pp. 222-223. (d) There was no element of retaliation or vindictiveness against appellant for going to trial, where it does not appear that he was subjected to unwarranted charges or was being punished for exercising a constitutional right. While defendants pleading non vult may be treated more leniently than those who go to trial, withholding the possibility of leniency from the latter cannot be equated with impermissible punishment as long as plea bargaining is held to be a proper procedure. Pp. 223-224. (e) The New Jersey sentencing scheme does not exert such a powerful influence to coerce inaccurate pleas non vult as to be deemed constitutionally suspect. Here, the State did not trespass on appellant's rights so long as he was free to accept or refuse the choice presented to him by the State, i. e., to go to trial and face the risk of life imprisonment or to seek acceptance of a non vult plea and imposition of the lesser penalty. P. 225. 2. Nor does the sentencing scheme infringe appellant's right to equal protection under the Fourteenth Amendment, since all New Jersey defendants are given the same choice as to whether to go to trial or plead non vult. Defendants found guilty by a jury are not penalized for exercising their right to a jury trial any more than defendants who plead guilty are penalized for giving up the chance of acquittal at trial. Equal protection does not free those who made a bad assessment of risks or a bad choice from the consequences of their decision. Pp. 225-226. 74 N.J. 379, 378 A.2d 235, affirmed. James K. Smith, Jr., East Orange, N. J., for appellant. John DeCicco, Princeton, N. J., for appellee. Mr. Justice WHITE delivered the opinion of the Court. 1 Under the New Jersey homicide statutes,1 some murders are of the first degree; the rest are of the second degree. Juries rendering guilty murder verdicts are to designate whether the murder was a first-or second-degree crime. The mandatory punishment, to be imposed by the judge, for those convicted by a jury of first-degree murder is life imprisonment;2 second-degree murder is punished by a term of not more than 30 years. Trials to the court in murder cases are not permitted, and guilty pleas to murder indictments are forbidden. Pleas of non vult or nolo contendere, however, are allowed. "If such plea be accepted," the punishment "shall be either imprisonment for life or the same as that imposed upon a conviction of murder in the second degree."3 The judge entertaining the plea determines that there is a factual basis for conviction but need not decide whether the murder is first or second degree. 2 Appellant Corbitt, after pleading not guilty to a murder indictment, was convicted of committing murder in the course of an arson—a felony murder and one of the first-degree homicides.4 He was sentenced to the mandatory punishment of life imprisonment. His conviction and sentence were affirmed by the New Jersey appellate courts. The New Jersey Supreme Court rejected his contention that because defendants pleading non vult could be sentenced to a lesser term, the mandatory life sentence following a first-degree murder verdict was an unconstitutional burden upon his right to a jury trial under the Sixth and Fourteenth Amendments and upon his right against compelled self-incrimination under the Fifth and Fourteenth Amendments, as well as a violation of his right to equal protection of the laws under the Fourteenth Amendment. 74 N.J. 379, 378 A.2d 235 (1977). We noted probable jurisdiction. 434 U.S. 1060, 98 S.Ct. 1231, 55 L.Ed.2d 760 (1978). 3 Appellant's principal reliance is upon United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). There, this Court held that the death sentence provided by the Federal Kidnaping Act was invalid because it could be imposed only upon the recommendation of a jury accompanying a guilty verdict, whereas the maximum penalty for those tried to the court after waiving a jury and for those pleading guilty was life imprisonment. Only those insisting on a jury trial faced the possibility of a death penalty. These provisions were held to be a needless encouragement to plead guilty or to waive a jury trial, and the death penalty was consequently declared unconstitutional. 4 We agree with the New Jersey Supreme Court that there are substantial differences between this case and Jackson, and that Jackson does not require a reversal of Corbitt's conviction. The principal difference is that the pressures to forgo trial and to plead to the charge in this case are not what they were in Jackson. First, the death penalty, which is "unique in its severity and irrevocability," Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976), is not involved here. Although we need not agree with the New Jersey court that the Jackson rationale is limited to those cases where a plea avoids any possibility of the death penalty's being imposed, it is a material fact that under the New Jersey law the maximum penalty for murder is life imprisonment, not death. Furthermore, in Jackson, any risk of suffering the maximum penalty could be avoided by pleading guilty. Here, although the punishment when a jury finds a defendant guilty of first-degree murder is life imprisonment,5 the risk of that punishment is not completely avoided by pleading non vult because the judge accepting the plea has the authority to impose a life term. New Jersey does not reserve the maximum punishment for murder for those who insist on a jury trial. 5 It is nevertheless true that while life imprisonment is the mandatory punishment for a defendant against whom a jury has returned a first-degree murder verdict, a judge accepting a non vult plea does not classify the murder6 and may impose either life imprisonment or a term of up to 30 years. The defendant who wishes to avoid the certainty of life imprisonment if he is tried and found guilty by the jury of first-degree murder, may seek to do so by tendering a non vult plea. Although there is no assurance that he will be so favored, the judge does have the power to accept the plea and to sentence him to a lesser term.7 It is Corbitt's submission that the possibility of a sentence of less than life upon the plea of non vult, combined with the absence of a similar possibility when found guilty by a jury, is an unconstitutional burden on his federal rights under the Fifth, Sixth, and Fourteenth Amendments. 6 As did the New Jersey Supreme Court, we disagree. The cases in this Court since Jackson have clearly established that not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid.8 Specifically, there is no per se rule against encouraging guilty pleas. We have squarely held that a State may encourage a guilty plea by offering substantial benefits in return for the plea.9 The plea may obtain for the defendant "the possibility or certainty . . . [not only of] a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty . . .," Brady v. United States, 397 U.S. 742, 751, 90 S.Ct. 1463, 1470, 25 L.Ed.2d 747 (1970), but also of a lesser penalty than that required to be imposed after a guilty verdict by a jury. In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the defendant went to trial on an indictment charging him as a habitual criminal, for which the mandatory punishment was life imprisonment. The prosecutor, however, had been willing to accept a plea of guilty to a lesser charge carrying a shorter sentence. The defendant chose to go to trial, was convicted, and was sentenced to life. We affirmed the conviction, holding that the State, through the prosecutor, had not violated the Constitution since it "no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution." Id., at 365, 98 S.Ct., at 669. Relying upon and quoting fromChaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), we also said: 7 "While confronting a defendant with the risk of more severe punishment clearly may have a 'discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable'—and permissible—'attribute of any legitimate system which tolerates and encourages the negotiation of pleas.' Chaffin v. Stynchcombe, supra, at 31 (93 S.Ct. 1977). It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty." 434 U.S., at 364, 98 S.Ct., at 668. 8 There is no difference of constitutional significance between Bordenkircher and this case.10 There, as here, the defendant went to trial on an indictment that included a count carrying a mandatory life term under the applicable state statutes. There, as here, the defendant could have sought to counter the mandatory penalty by tendering a plea. In Bordenkircher, as permitted by state law, the prosecutor was willing to forgo the habitual criminal count if there was a plea, in which event the mandatory sentence would have been avoided. Here, the state law empowered the judge to impose a lesser term either in connection with a plea bargain or otherwise. In both cases, the defendant gave up the possibility of leniency if he went to trial and was convicted on the count carrying the mandatory penalty. In Bordenkircher, the probability or certainty of leniency in return for a plea did not invalidate the mandatory penalty imposed after a jury trial. It should not do so here, where there was no assurance that a plea would be accepted if tendered, and, if it had been, no assurance that a sentence less than life would be imposed. Those matters rested ultimately in the discretion of the judge, perhaps substantially influenced by the prosecutor and the plea-bargaining process permitted by New Jersey law.11 9 Bordenkircher, like other cases here, unequivocally recognized the State's legitimate interest in encouraging the entry of guilty pleas and in facilitating plea bargaining, a process mutually beneficial to both the defendant and the State.12 In pursuit of this interest, New Jersey has provided that the judge, may, but need not, accept pleas of non vult and that he may impose life or the specified term of years. This not only provides for discretion in the trial judge but also sets the limits within which plea bargaining on punishment may take place. The New Jersey Supreme Court observed that the "encouragement of guilty defendants not to contest their guilt is at the very heart of an effective plea negotiation program." 74 N.J., at 396, 378 A.2d, at 243-244. Its conclusion was that in this light there were substantial benefits to the State in providing the opportunity for lesser punishment and that the statutory pattern could not be deemed a needless or arbitrary burden on the defendant's constitutional rights within the meaning of United States v. Jackson. 10 We are in essential agreement with the New Jersey Supreme Court. Had Corbitt tendered a plea and had it been accepted and a term of years less than life imposed, this would simply have recognized the fact that there had been a plea and that in sentencing it is constitutionally permissible to take that fact into account. The States and the Federal Government are free to abolish guilty pleas and plea bargaining; but absent such action, as the Constitution has been construed in our cases, it is not forbidden to extend a proper degree of leniency in return for guilty pleas. New Jersey has done no more than that. 11 We discern no element of retaliation or vindictiveness against Corbitt for going to trial. There is no suggestion that he was subjected to unwarranted charges. Nor does this record indicate that he was being punished for exercising a constitutional right.13 Indeed, insofar as this record reveals, Corbitt may have tendered a plea and it was refused. There is no doubt that those homicide defendants who are willing to plead non vult may be treated more leniently than those who go to trial, but withholding the possibility of leniency from the latter cannot be equated with impermissible punishment as long as our cases sustaining plea bargaining remain undisturbed. Those cases, as we have said, unequivocally recognize the constitutional propriety of extending leniency in exchange for a plea of guilty and of not extending leniency to those who have not demonstrated those attributes on which leniency is based.14 12 Finally, we are unconvinced that the New Jersey statutory pattern exerts such a powerful influence to coerce inaccurate pleas non vult that it should be deemed constitutionally suspect. There is no suggestion here that Corbitt was not well counseled or that he misunderstood the choices that were placed before him. Here, as in Bordenkircher, the State did not trespass on the defendant's rights "so long as the accused [was] free to accept or reject" the choice presented to him by the State, 434 U.S., at 363, 98 S.Ct., at 668, that is, to go to trial and face the risk of life imprisonment or to seek acceptance of a non vult plea and the imposition of the lesser penalty authorized by law.15 13 Appellant also argues that the sentencing scheme infringes his right to equal protection under the Fourteenth Amendment because it penalizes the exercise of a "fundamental right." We rejected a similar argument in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), noting that "[t]o fit the problem . . . into an equal protection framework is a task too Procrustean to be rationally accomplished." Id., at 723, 89 S.Ct., at 2079. All New Jersey defendants are given the same choice. Those electing to contest their guilt face a certainty of life imprisonment if convicted of first-degree murder; but they may be acquitted instead or, in a proper case, may be convicted of a lesser degree of homicide and receive a sentence of less than life. Furthermore, a plea of non vult may itself result in a life sentence. The result, therefore, 14 "may depend upon a particular combination of infinite variables peculiar to each individual trial. It simply cannot be said that a state has invidiously 'classified' . . . ." Id., at 722, 89 S.Ct., at 2079. 15 It cannot be said that defendants found guilty by a jury are "penalized" for exercising the right to a jury trial any more than defendants who plead guilty are penalized because they give up the chance of acquittal at trial. In each instance, the defendant faces a multitude of possible outcomes and freely makes his choice. Equal protection does not free those who made a bad assessment of risks or a bad choice from the consequences of their decision. The judgment of the Supreme Court of New Jersey is affirmed. 16 It is so ordered. 17 Mr. Justice STEWART, concurring in the judgment. 18 I agree with the Court that United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, is not controlling in this case. In the Jackson case, a convicted defendant could be sentenced to death if he had requested a jury trial but could be sentenced to no more than a life sentence if he either had pleaded guilty or had pleaded not guilty and waived a jury trial. Under these circumstances, the Court held that this part of the federal statute was unconstitutional because it "impose[d] an impermissible burden upon the exercise of a constitutional right." Id., at 572, 88 S.Ct., at 1211. 19 Under the New Jersey statutory scheme, by contrast, no such impermissible burden is present. Unlike the statute at issue in the Jackson case, the death penalty is not involved here, and a convicted defendant can be sentenced to the maximum penalty of life imprisonment whether he pleads non vult or goes to trial. Moreover, although in New Jersey a defendant pleads non vult to a general indictment of murder, he can be sentenced to the maximum sentence even though the underlying facts would have supported no more than a second-degree murder conviction if the defendant had gone to trial and been found guilty by a jury. Since the latter offense cannot be punished by life imprisonment, a defendant who is guilty of second-degree murder is subject to a greater penalty if he pleads non vult than if he pleads not guilty and is convicted of that offense after a jury trial. Finally, a defendant who pleads not guilty and goes to trial can be convicted of a lesser included offense or acquitted even though in fact he is guilty of first- or second-degree murder or manslaughter. It is, therefore, impossible to state with any confidence that the New Jersey statute does in fact penalize a defendant's decision to plead not guilty.* 20 I cannot agree with the statement of the Court, however, that "[t]here is no difference of constitutional significance between Bordenkircher and this case." Ante, at 221. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604, involved plea negotiations between the attorney for the prosecution and the attorney for the defense in the context of an adversary system of criminal justice. It seems to me that there is a vast difference between the settlement of litigation through negotiation between counsel for the parties, and a state statute such as is involved in the present case. While a prosecuting attorney, acting as an advocate, necessarily must be able to settle an adversary criminal lawsuit through plea bargaining with his adversary a state legislature has a quite different function to perform. Could a state legislature provided that the penalty for every criminal offense to which a defendant pleads guilty is to be one-half the penalty to be imposed upon a defendant convicted of the same offense after a not-guilty plea? I would suppose that such legislation would be clearly unconstitutional under United States v. Jackson. Since the reasoning of part of the Court's opinion suggests otherwise, I concur only in the judgment. 21 Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting. 22 The concept of a "false" not-guilty plea has no place in our jurisprudence.1 A defendant has a constitutional right to require the State to support its accusation with evidence.2 He is therefore given an unqualified right—before trial when he retains the presumption of innocence—to plead not guilty.3 Because the entry of such a plea cannot at once be criminally punishable and constitutionally protected, a statute that has no other purpose or effect than to penalize assertion of the right not to plead guilty is "patently unconstitutional." The Court so held in United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138, and that holding is dispositive of this case.4 23 Today, however, the Court decides that a defendant who has been convicted after a full trial may be punished not only for the crime charged in the indictment but additionally for entering a "false" plea of not guilty. The holding in Jackson, though not specifically overruled, has been divorced from the rationale on which it rested. 24 New Jersey does not seriously contend that § 2A:113-3 has any purpose or effect other than to penalize assertion of the right not to plead guilty. Its argument that the statute is justified by a valid state interest in conserving scarce prosecutorial resources is simply a restatement of the obvious purpose of the law to motivate defendants to plead guilty instead of exercising their expensive right to trial. If appellee is correct in its assertion that the statute has been effective as a money-saving inducement to guilty pleas, that success is necessarily attributable to the deterrent effect of the penalty imposed on those who resist the inducement. 25 In its attempt to distinguish Jackson, the State argues that its statute imposes no penalty for "falsely" pleading not guilty because it provides the same maximum punishment regardless of the plea. That argument is beside the point because the statute provides a significantly more severe standard of punishment for the defendant who exercises his constitutional rights than for the one who submits without trial. For the former, a mandatory life sentence is prescribed whereas for the latter, life is "only the maximum in a discretionary spectrum of length" that extends downward anywhere from a term of 30 years to no term at all. Dobbert v. Florida, 432 U.S. 282, 300, 97 S.Ct. 2290, 2301, 53 L.Ed.2d 344. Whether viewed in light of the legislative purpose in enacting the statute or in light of its impact on the defendant's choice of how to plead, this difference in punitive standards has the same "onerous" effect as if the maximum, as well as the minimum, penalty differed.5 Just as in Jackson, the statute subjects the defendant who stands trial to a substantial risk of greater punishment than the defendant who pleads guilty.6 26 Nor is this statutory scheme the equivalent of a plea bargain negotiated between defense counsel and the prosecutor. While such bargains serve a state interest in common with § 2A:113-3, they do so without penalizing the defendant's assertion of his legal rights. In the bargaining process, indi vidual factors relevant to the particular case may be considered by the prosecutor in charging and by the trial judge in sentencing, regardless of the defendant's plea;7 the process does not mandate a different standard of punishment depending solely on whether or not a plea is entered.8 27 Of even greater importance is the fact that a defendant who refuses a plea bargain will not be punished for his constitutionally protected recalcitrance; whatever punishment he receives will be for his conduct in committing the offense or offenses the State has proved at trial.9 In contrast, a defendant who faces a more severe range of statutory penalties simply because he has insisted on a trial, is subjected to punishment not only for the crime the State has proved but also for the "offense" of entering a "false" not-guilty plea. 28 Because the legislature, the voice of the community in identifying crimes and penalties,10 has inflexibly engraved the different standard of punishment in the statute itself. New Jersey may not disavow or disparage its policy of imposing a special punishment simply because a person has done what the law plainly allows him to do. As the Court reiterated last Term, the implementation of such a policy inevitably produces a due process violation of the most basic sort.11 29 The right of the defendant to stand absolutely mute before the bar of justice and to force the government to make its case without his aid has been accepted since the earliest days of the Republic.12 That silence, and its formal invocation by entry of a not-guilty plea, cannot retain the protection of the Fifth Amendment and be simultaneously a punishable offense. The same act cannot be both lawful and unlawful. That is the essence of the Court's holding in Jackson. I respectfully dissent from its repudiation. 1 The relevant statutes are N.J.Stat.Ann. §§ 2A:113-1 to 2A:113-4 (West 1969 and Supp.1978-1979): "2A:113-1. Murder "If any person, in committing or attempting to commit arson, burglary, kidnapping, rape, robbery, sodomy or any unlawful act against the peace of this state, of which the probable consequences may be bloodshed, kills another, or if the death of anyone ensues from the committing or attempting to commit any such crime or act; or if any person kills a judge, magistrate, sheriff, constable or other officer of justice, either civil or criminal, of this State, or a marshal or other officer of justice, either civil or criminal, of the United States, in the execution of his office or duty, or kills any of his assistants, whether specially called to his aid or not, endeavoring to preserve the peace or apprehend a criminal, knowing the authority of such assistant, or kills a private person endeavoring to suppress an affray, or to apprehend a criminal, knowing the intention with which such private person interposes, then such person so killing is guilty of murder. "2A:113-2. Degrees of murder; designation in verdict "Murder which is perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which is committed in perpetrating or attempting to perpetrate arson, burglary, kidnapping, rape, robbery or sodomy, or which is perpetrated in the course or for the purpose of resisting, avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody, or murder of a police or other law enforcement officer acting in the execution of his duty or of a person assisting any such officer so acting, is murder in the first degree. Any other kind of murder is murder in the second degree. A jury finding a person guilty of murder shall designate by their verdict whether it be murder in the first degree or in the second degree." "2A:113-3. Murder; plea of guilty not to be received; plea of non vult or nolo contendere and sentence thereon "In no case shall the plea of guilty be received upon any indictment for murder, and if, upon arraignment, such plea is offered, it shall be disregarded, and the plea of not guilty entered, and a jury, duly impaneled, shall try the case. "Nothing herein contained shall prevent the accused from pleading non vult or nolo contendere to the indictment; the sentence to be imposed, if such plea be accepted, shall be either imprisonment for life or the same as that imposed upon a conviction of murder in the second degree. "2A:113-4. Murder; punishment "Every person convicted of murder in the first degree, [his] aiders, abettors, counselors and procurers, shall suffer death unless the jury shall by its verdict, and as a part thereof, upon and after the consideration of all the evidence, recommend life imprisonment, in which case this and no greater punishment shall be imposed. "Every person convicted of murder in the second degree shall suffer imprisonment for not more than 30 years." Manslaughter is separately defined in 2A:113-5 (West 1969). 2 The provision for the death penalty in 2A:113-4 was invalidated in Funicello v. New Jersey, 403 U.S. 948, 91 S.Ct. 2278, 29 L.Ed.2d 859 (1971). On remand, the New Jersey Supreme Court held the death penalty provision severable from the statute and ruled that life imprisonment was to be imposed upon all defendants convicted by a jury of first-degree murder, State v. Funicello, 60 N.J. 60, 286 A.2d 55, cert. denied sub nom. New Jersey v. Presha, 408 U.S. 942, 92 S.Ct. 2849, 33 L.Ed.2d 766 (1972). 3 N.J.Stat.Ann. § 2A:113-3 (West 1969). As the statute suggests, the trial judge has complete discretion to refuse to accept the plea. See State v. Sullivan, 43 N.J. 209, 246, 203 A.2d 177, 196 (1964). He may not, however, accept a plea if the defendant maintains his innocence, stands mute, or refuses to admit facts that establish guilt. State v. Reali, 26 N.J. 222, 139 A.2d 300 (1958); State v. Sands, 138 N.J.Super. 103, 109-112, 350 A.2d 274, 277-279 (App.Div.1975); State v. Rhein, 117 N.J.Super. 112, 283 A.2d 759 (App.Div.1971). 4 Corbitt was indicted on two counts of arson and one count of murder. The State presented its case on a felony-murder basis. He was found guilty on one count of arson and on the murder count. Sentences of life imprisonment for felony murder and a concurrent term for arson were imposed. Because the arson conviction was deemed merged into the murder conviction, the separate sentence for arson was set aside on appeal. 5 New Jersey Stat.Ann. § 2A:113-2 (West 1969) directs a jury finding a defendant guilty of murder to "designate by their verdict whether it be murder in the first degree or in the second degree." It thus appears that in appropriate cases the jury would be instructed on both first-and second-degree murder. In this case, however, the State proceeded on a felony-murder basis; the judge considered it to be a first-degree felony-murder case; and there were no instructions on second-degree murder or manslaughter. As far as the record before us reveals, Corbitt did not request or object to the absence of instructions on lesser crimes. 6 Under New Jersey law, the plea is to be directed to the indictment, which may charge murder generally. The trial court accepting a plea does not hold a hearing for the purpose of determining the degree of guilt or make any such determination. State v. Williams, 39 N.J. 471, 479, 189 A.2d 193, 197 (1963); State v. Walker, 33 N.J. 580, 588-589, 166 A.2d 567, 571-572 (1960). 7 If the plea is accepted, the sentencing judge would appear to have discretion not only to impose up to 30 years on facts that might have warranted a first-degree murder verdict by a jury but also to impose a life term where the facts indicate a second-degree murder verdict. 8 For example, in Crampton v. Ohio, decided with McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), we upheld Ohio's procedure whereby the jury determines both guilt and punishment in a single trial and in a single verdict. Crampton argued that the unitary procedure impaired his Fifth and Fourteenth Amendment right against compelled self-incrimination because he could remain silent on the issue of guilt only at the cost of surrendering any chance to plead his case on the issue of punishment. As we stated there, in rejecting his argument: "The criminal process, like the rest of the legal system, is replete with situations requiring 'the making of difficult judgments' as to which course to follow. McMann v. Richardson, 397 U.S. (759), at 769 (90 S.Ct. 1441, 25 L.Ed.2d 763). Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose." Id., at 213, 91 S.Ct., at 1470. See also Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). In United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975), we held that a District Court could condition the admissibility of impeachment testimony by a defense witness upon production of an investigative report prepared by the witness, rejecting Nobles' contention that to do so would violate his Sixth Amendment right to compulsory process and cross-examination. 9 The Court intimated as much in Jackson itself: "[T]he evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers but simply that it needlessly encourages them." 390 U.S., at 583, 88 S.Ct., at 1217. Decisions after Jackson sustained practices that, although encouraging guilty pleas, were not "needless." In the first of these cases, Brady v. United States, supra, the petitioner had pleaded guilty and was sentenced to 50 years' imprisonment after being indicted under the same statute, the Federal Kidnaping Act, at issue in Jackson. Brady claimed that his guilty plea had been involuntary, relying on our holding in Jackson that the death penalty provision of the Federal Kidnaping Act served to encourage guilty pleas needlessly. In effect, Brady argued that Jackson required the invalidation of every guilty plea entered under the Federal Kidnaping Act prior to Jackson. We concluded that he had "read far too much into the Jackson opinion." 397 U.S., at 746, 90 S.Ct., at 1468. Jackson had in no way altered the test of Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969), that guilty pleas are valid if knowing, voluntary, and intelligent. Subsequent decisions reaffirmed the permissibility of plea bargaining even though "every such circumstance has a discouraging effect on the defendant's assertion of his trial rights," because the "imposition of these difficult choices [is the] inevitable attribute of any legitimate system which tolerates and encourages the negotiation of pleas." Chaffin v. Stynchcombe, 412 U.S. 17, 31, 93 S.Ct. 1977, 1985, 36 L.Ed.2d 714 (1973). See McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). In Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976), the appellant challenged the Massachusetts system for disposition of certain state crimes in which the defendant is first tried without a jury. If convicted, he may appeal and obtain a jury trial de novo. Although the range of penalties was the same at each tier, Ludwig suffered a harsher sentence when he appealed and was found guilty by a jury. Recognizing the interest of the State in efficient criminal procedure, we rejected a claim based on Jackson that the system discouraged the assertion of the right to a jury trial by imposing harsher sentences upon those that exercised that right. 427 U.S., at 627-628, n. 4, 96 S.Ct., at 2786-2787, n. 4. 10 In Bordenkircher, the original indictment did not include the habitual criminal count, which was added when the defendant was reindicted following his refusal to plead. This escalation of the charges after the failure of plea bargaining, which to the dissenters in this Court demonstrated impermissible vindictiveness, is not present here; and we need not rely on this aspect of the Bordenkircher decision. The rationale of that case would a fortiori govern a case where the original indictment contains a habitual criminal count and conviction on that count follows the defendant's decision not to plead to a lesser charge. 11 New Jersey expressly authorizes plea bargaining. N.J. Court Rule 3:9-3(a). Any agreement reached is "placed on the record in open court at the time the plea is entered." Rule 3:9-3(b). The New Jersey Rules also permit disclosure of the tentative agreement to the judge to secure advance approval. Rule 3:9-3(c). In any event, if the judge "determines that the interests of justice would not be served by effectuating the agreement," he must permit the defendant to withdraw the plea. Rule 3:9-3(e). 12 The Court has several times recognized the benefits of plea bargaining to the defendant as well as to the State. In Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 736 (1977), we said: "Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned. The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from the risks posed by those charged with criminal offenses who are at large on bail while awaiting completion of criminal proceedings." (Footnote omitted.) See also Santobello v. New York, supra, 404 U.S., at 260-261, 92 S.Ct., at 497-498; Brady v. United States, 397 U.S. 742, 751-752, 90 S.Ct. 1463, 1470-1471, 25 L.Ed.2d 747 (1970). There is thus much more to be derived from plea bargaining than simply conserving scarce prosecutorial resources, and those benefits accrue equally where the plea bargaining occurs within a statutory framework. 13 The dissent's suggestion, post, at 229-230, that New Jersey concedes that its statutes have both the purpose and effect of penalizing the assertion of the right not to plead guilty is untenable, see Brief for Appellee 28-31, and seems inconsistent with the later description of the State's position, post, at 230. 14 The dissent appears to question any system that subjects the defendant who stands trial to a substantial risk of greater punishment than the defendant who pleads guilty. But in the next breath, the dissent appears to embrace plea bargaining, although the plea-bargaining systems operating in a majority of the jurisdictions throughout the country inherently extend to defendants who plead guilty the probability or the certainty of leniency that will not be available if they go to trial. The dissent asserts that the attack here is on the statutory scheme rather than upon the system of plea bargaining, which is said to individualize defendants and does not mandate a different standard of punishment depending solely on whether or not a plea is entered. The distinction is without substance for the purposes of this case. In the first place, plea bargaining by state prosecutors operates by virtue of state law, here by virtue of the formal rules of the Supreme Court of New Jersey. That system permits a proper amount of leniency in return for pleas, leniency that is denied if one goes to trial. In this sense, the standard of punishment is necessarily different for those who plead and for those who go to trial. For those who plead, that fact itself is a consideration in sentencing, a consideration that is not present when one is found guilty by a jury. Second, under the New Jersey statutes, pleas may be rejected even if tendered; there must, for example, be a factual basis for the plea. Even if a plea is accepted, there is discretion to impose life imprisonment. The statute leaves much to the judge and to the prosecutor and does not mandate lesser punishment for those pleading non vult than is imposed on those who go to trial. It is also true that under normal circumstances, juries in New Jersey may find a defendant guilty of second-degree murder rather than first. Third, we cannot hold that a prosecutor may charge a person with a crime carrying a mandatory punishment and secure a valid conviction, despite his power to offer leniency to those who plead including dismissal of the mandatory count in return for a plea and yet hold that the legislature may not openly provide for the possibility of leniency in return for a plea. This is particularly true where it is contemplated that plea bargaining will in any event go forward within the limits set by the legislature. 15 We do not suggest that every conceivable statutory sentencing structure, plea-bargaining system, or particular plea bargain would be constitutional. We hold only that a State may make due allowance for pleas in its sentencing decisions and that New Jersey has not exceeded its powers in this respect by its statutory provision extending the possibility of leniency to those who plead non vult in homicide cases. * Indeed, despite the appellant's claim that the statute coerces or encourages guilty pleas, the appellant himself pleaded not guilty, went to trial and was convicted. The petitioner in United States v. Jackson, by contrast, brought a facial attack on the constitutionality of the statute by way of a motion to dismiss the indictment. See 390 U.S., at 571, 88 S.Ct., at 1210. 1 "[T]he plea is not evidence. Nor is it testimonial. It is not under oath. Nor is it subject to cross-examination. When it is 'not guilty,' it has no effect as testimony or evidence . . .. The function of that plea is to put the Government to its proof and to preserve the right to defend. . . . "If the plea were testimonial or evidentiary, the court would have no power to demand it. . . . But if, having used its power to extract the plea for its proper purpose, it can go further and over the defendant's objection convert or pervert it into evidence, in substance if not in form it compels the defendant to testify in his own case. That it has no power to do." Wood v. United States, 75 U.S.App.D.C. 274, 282-283, 128 F.2d 265, 273-274 (1942) (Rutledge, J.). See also Sorrells v. United States, 287 U.S. 435, 452, 53 S.Ct. 210, 216, 77 L.Ed. 511 (not-guilty plea is not inconsistent with entrapment defense even though latter implies admission that the offense was committed); State v. Valentina, 71 N.J.L. 552, 556, 60 A. 177, 179 (1905) (not-guilty plea and confession of guilt are not inconsistent). 2 Among the implications of the Fifth Amendment privilege against self-incrimination is that "[g]overnments, state and federal, [may be] constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth." Malloy v. Hogan, 378 U.S. 1, 7-8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653. As expressed by Dean Wigmore, the Fifth Amendment gives the individual the right to "requir[e] the government in its contest with the individual to shoulder the entire load." 8 J. Wigmore, Evidence § 2251, p. 317 (McNaughten rev. ed. 1961), quoted in Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678. 3 Upon that plea the accused may stand, shielded by the presumption of his innocence, until it appears that he is guilty." Davis v. United States, 160 U.S. 469, 485-486, 16 S.Ct. 353, 357, 40 L.Ed. 499. See Byrd v. United States, 119 U.S.App.D.C. 360, 362, 342 F.2d 939, 941 (1965); United States v. Mayfield, 59 F. 118, 119 (ED La.1893). Long before the incorporation of the Fifth Amendment into the Fourteenth, the States had firmly enforced these principles: "[A] plea of not guilty, to a criminal charge, at once calls to the defense of defendant the presumption of innocence, denies the credibility of evidence for the State, and casts upon the State the burden of establishing guilt beyond a reasonable doubt. . . . These words are not mere formalities, but express vital principles of our criminal jurisprudence and criminal procedure. These principles ought not to be readily abandoned, or worn away by invasion." State v. Hardy, 189 N.C. 799, 804-805, 128 S.E. 152, 155 (1925). 4 "Our problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury. The inevitable effect of any such provision is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. If the provision had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional." United States v. Jackson, 390 U.S., at 581, 88 S.Ct., at 1216 (footnote omitted). 5 This conclusion was the predicate for the Court's holding in Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182. In that case the Court held that a change in statutory sentencing provisions for burglary could not be applied retroactively even though the new provisions did not increase the 15-year maximum sentence, but only made it mandatory: "The effect of the new statute is to make mandatory what was before only the maximum sentence. . . . "Removal of the possibility of a sentence of less than fifteen years . . . operates to [defendants'] detriment in the sense that the standard of punishment adopted by the new statute is more onerous than that of the old." Id., at 400-401, 57 S.Ct., at 798. Accord, Dobbert v. Florida, 432 U.S. 282, 300, 97 S.Ct. 2290, 2301, 53 L.Ed.2d 344 ("[O]ne is not barred from challenging a change in the penal code on ex post facto grounds simply because the sentence he received under the new law was not more onerous than that which he might have received under the old"). See also Lockett v. Ohio, 438 U.S. 586, 619, 98 S.Ct. 2954, 2972, 57 L.Ed.2d 973 (BLACKMUN, J., concurring in judgment) (A statutory sentencing scheme under which "a defendant can plead not guilty only by enduring a semimandatory [death-penalty provision], rather than [the] purely discretionary, capital-sentencing provision" applicable to defendants who plead guilty creates a "disparity between a defendant's prospects under the two sentencing alternatives [that] is . . . too great to survive under Jackson"). Mr. Justice Stone's opinion for the unanimous Court in Lindsey also disposes of appellee's argument that the statute here is distinguishable from the one in Jackson because it does not make death the consequence of a "false" not-guilty plea: When "a punishment for murder of life imprisonment or death [is] changed to death alone," it is "only a more striking instance of the detriment which ensues from the revision of a statute providing for a maximum and a minimum punishment by making the maximum compulsory." 301 U.S., at 401, 57 S.Ct., at 799. In either case, "[i]t is plainly to the substantial disadvantage of petitioners to be deprived of all opportunity to receive" less than the maximum. Id., at 402-403, 57 S.Ct., at 799. See also Brady v. United States, 397 U.S. 742, 747-752, 90 S.Ct. 1463, 1468-1471, 25 L.Ed.2d 747, holding that a defendant who pleads guilty to avoid the death penalty is entitled to no different treatment from one who pleads guilty to avoid any other "maximum sentence authorized by law." 6 In one important respect, the statute invalidated in Jackson was less onerous than the New Jersey statute involved in this case. The Jackson defendant could avoid the more severe penalty by merely forgoing his Sixth Amendment right to a jury and trying the case to the court alone. Here, however, the price of avoiding the statutory penalty for an incorrect plea of not guilty is the waiver not only of the right to a jury but also the right to put the government to its proof, to confront one's accusers, and to present a defense. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274. 7 See North Carolina v. Pearce, 395 U.S. 711, 723, 89 S.Ct. 2072, 2079, 23 L.Ed.2d 656. Whenever this flexibility and individualization has given way to prosecutorial or judicial vindictiveness against those who assert their rights, the Court has condemned the practice. Id., at 725, 89 S.Ct., at 2080. The message of Pearce, as well as Jackson; Brady v. United States, supra; Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714; and Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604, is that where the legislature, prosecutor, judge, or all three "deliberately employ their charging and sentencing powers to induce [a] defendant to tender a plea of guilty," Brady, supra, 397 U.S., at 751 n. 8, 90 S.Ct., at 1470 n. 8, and where they do so with the "objective [of] penaliz[ing] a person's reliance on his legal rights, [such action] is 'patently unconstitutional.' " Bordenkircher, supra, 434 U.S., at 363, 98 S.Ct., at 668, quoting Chaffin, supra, 412 U.S., at 32-33, n. 20, 93 S.Ct., at 1986, n. 20. 8 This point was made most forcefully in Brady v. United States. In that case, the Court upheld a conviction under the same statute challenged in Jackson. However, petitioner in Brady, unlike respondent in Jackson, had not received a higher sentence as "the price of a jury trial." 397 U.S., at 746, 90 S.Ct., at 1467. Instead, he had knowingly and voluntarily pleaded guilty and brought himself within the lower range of penalties provided for those who did not insist upon trial. The Court affirmed the conviction because the plea-bargaining process, even when buttressed by the invalid statute, was not "inherently coercive of guilty pleas." Ibid. 9 See Bordenkircher v. Hayes, supra, 434 U.S., at 364, 98 S.Ct., at 668. 10 See Coker v. Georgia, 433 U.S. 584, 594, 97 S.Ct. 2861, 2867, 53 L.Ed.2d 982. Cf. United States v. Hudson and Goodwin, 7 Cranch 32, 3 L.Ed.2d 259. 11 "To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort." Bordenkircher v. Hayes, supra, 434 U.S., at 363, 98 S.Ct., at 668. 12 United States v. Hare, 26 Fed.Cas. page 148, No. 15,304 (CC Md. 1818); United States v. Gilbert, 25 Fed.Cas. page 1287, No. 15,204 (CC Mass. 1834) (Story, J.). The days have long since passed when a refusal to plead qualified as an admission of guilt or an invitation for the extraction of a plea through torture or piene forte et dure. See McPhaul v. United States, 364 U.S. 372, 386-387, 81 S.Ct. 138, 146, 5 L.Ed.2d 136 (Douglas, J., dissenting); In re Smith, 13 F. 25 (CC Mass. 1882). Today, it is universally accepted that silence at arraignment is equivalent to a plea of not guilty. See United States v. Beadon, 49 F.2d 164 (CA2 1931), cert. denied, 284 U.S. 625, 52 S.Ct. 11, 76 L.Ed. 533.

01

439 U.S. 259 99 S.Ct. 518 58 L.Ed.2d 503 Robert M. LALLI, Appellant,v.Rosamond LALLI, Administratrix of the Estate of Mario Lalli, et al. No. 77-1115. Argued Oct. 4, 1978. Decided Dec. 11, 1978. Syllabus Appellant, assertedly the illegitimate son of Mario Lalli, who died intestate in New York, filed a petition for a compulsory accounting from appellee administratrix of the estate, claiming that he was entitled to inherit from Mario as his child. Appellee opposed the petition, arguing that even if appellant were Mario's child, he was not a lawful distributee of the estate because he had failed to comply with a New York statutory provision (§ 4-1.2) that in pertinent part allows an illegitimate child to inherit from his intestate father only if a court of competent jurisdiction has, during the father's lifetime, entered an order declaring paternity. Appellant contended that his failure to obtain such an order during Mario's lifetime could not bar his inheritance because § 4-1.2 discriminated against him on the basis of his illegitimate birth in violation of the Equal Protection Clause of the Fourteenth Amendment. Appellant tendered evidence that he was Mario's child. The Surrogate's Court ruled that appellant was properly excluded as a distributee under § 4-1.2. The New York Court of Appeals affirmed and upheld the constitutionality of the statute. Held: The judgment is affirmed. Pp. 264-276; 276; 276-277. 43 N.Y.2d 65, 400 N.Y.S.2d 761, 371 N.E.2d 481, affirmed. Mr. Justice POWELL, joined by THE CHIEF JUSTICE and Mr. Justice STEWART, concluded that § 4-1.2 does not violate the Equal Protection Clause of the Fourteenth Amendment. Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31, distinguished. Pp. 264-276. (a) While classifications based on illegitimacy are not subject to "strict scrutiny," they are invalid under the Fourteenth Amendment if they are not substantially related to permissible state interests, Mathews v. Lucas, 427 U.S. 495, 506, 96 S.Ct. 2755, 2762, 49 L.Ed.2d 651; Trimble v. Gordon, supra, 430 U.S. at 767, 97 S.Ct. at 1464. P. 265. (b) The Illinois statute invalidated in Trimble (which, in addition to requiring the father's acknowledgment of paternity, required the legitimation of the child through intermarriage of the parents as a precondition to inheritance) eliminated "the possibility of a middle ground between the extremes of complete exclusion [of illegitimates claiming under their fathers' estates] and case-by-case determination of paternity." But the single requirement at issue under § 4-1.2 is an evidentiary one; the marital status of the parents is irrelevant. Pp. 266-267. (c) The primary goal underlying the challenged aspects of § 4-1.2 is to provide for the just and orderly disposition of a decedent's property where paternal inheritance by illegitimate children is concerned, an area involving unique and difficult problems of proof. Pp. 268-271. (d) Section 4-1.2 represents a carefully considered legislative judgment on how best to "grant to illegitimates in so far as practicable rights of inheritance on a par with those enjoyed by legitimate children," while protecting the important state interest in the just and orderly disposition of decedents' estates. Accuracy is enhanced by placing paternity disputes in a judicial forum during the lifetime of the father, which (in addition to permitting a man to defend his reputation against unjust paternity claims) helps to forestall fraudulent assertions of paternity. Estate administration is facilitated, and delay and uncertainty minimized, where the entitlement of an illegitimate child is a matter of judicial record before administration commences. While there may be some instances where § 4-1.2, as is often the case with statutory classifications, will produce inequitable results, the reach of the statute, unlike that involved in Trimble, does not exceed justifiable state objectives. Pp. 271-274. Mr. Justice BLACKMUN would affirm the judgment below on the basis of Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288, and rather than distinguishing Trimble, supra, would overrule that decision. Pp. 276-277. Mr. Justice REHNQUIST concurred in the judgment for the reasons stated in his dissent in Trimble, supra, 430 U.S., at 777, 97 S.Ct., at 1468. P. 276. Leonard M. Henkin, Mount Vernon, N.Y., for appellant. Irwin M. Strum, New York City, for appellee. Mr. Justice POWELL announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and Mr. Justice STEWART join. 1 This case presents a challenge to the constitutionality of § 4-1.2 of New York's Estates, Powers, and Trusts Law,1 which requires illegitimate children who would inherit from their fathers by intestate succession to provide a particular form of proof of paternity. Legitimate children are not subject to the same requirement. 2 * Appellant Robert Lalli claims to be the illegitimate son of Mario Lalli who died intestate on January 7, 1973, in the State of New York. Appellant's mother, who died in 1968, never was married to Mario. After Mario's widow, Rosamond Lalli, was appointed administratrix of her husband's estate, appellant petitioned the Surrogate's Court for Westchester County for a compulsory accounting, claiming that he and his sister Maureen Lalli were entitled to inherit from Mario as his children. Rosamond Lalli opposed the petition. She argued that even if Robert and Maureen were Mario's children, they were not lawful distributees of the state because they had failed to comply with § 4-1.2,2 which provides in part: 3 "An illegitimate child is the legitimate child of his father so that he and his issue inherit from his father if a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity in a proceeding instituted during the pregnancy of the mother or within two years from the birth of the child." 4 Appellant conceded that he had not obtained an order of filiation during his putative father's lifetime. He contended, however, that § 4-1.2, by imposing this requirement, discriminated against him on the basis of his illegitimate birth in violation of the Equal Protection Clause of the Fourteenth Amendment.3 Appellant tendered certain evidence of his relationship with Mario Lalli, including a notarized document in which Lalli, in consenting to appellant's marriage, referred to him as "my son," and several affidavits by persons who stated that Lalli had acknowledged openly and often that Robert and Maureen were his children. 5 The Surrogate's Court noted that § 4-1.2 had previously, and unsuccessfully, been attacked under the Equal Protection Clause. After reviewing recent decisions of this Court concerning discrimination against illegitimate children, particularly Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971), and three New York decisions affirming the constitutionality of the statute, In re Belton, 70 Misc.2d 814, 335 N.Y.S.2d 177 (Surr.Ct.1972); In re Hendrix, 68 Misc.2d 439, 444, 326 N.Y.S.2d 646, 652 (Surr.Ct.1971); In re Crawford, 64 Misc.2d 758, 762-763, 315 N.Y.S.2d 890, 895 (Surr.Ct.1970), the court ruled that appellant was properly excluded as a distributee of Lalli's estate and therefore lacked status to petition for a compulsory accounting. 6 On direct appeal the New York Court of Appeals affirmed. In re Lalli, 38 N.Y.2d 77, 378 N.Y.S.2d 351, 340 N.E.2d 721 (1975). It understood Labine to require the State to show no more than that "there is a rational basis for the means chosen by the Legislature for the accomplishment of a permissible State objective." 38 N.Y.2d, at 81, 378 N.Y.S.2d, at 354, 340 N.E.2d, at 723. After discussing the problems of proof peculiar to establishing paternity, as opposed to maternity, the court concluded that the State was constitutionally entitled to require a judicial decree during the father's lifetime as the exclusive form of proof of paternity. 7 Appellant appealed the Court of Appeals' decision to this Court. While that case was pending here, we decided Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). Because the issues in these two cases were similar in some respects, we vacated and remanded to permit further consideration in light of Trimble. Lalli v. Lalli, 431 U.S. 911, 97 S.Ct. 2164, 53 L.Ed.2d 220 (1977). 8 On remand,4 the New York Court of Appeals, with two judges dissenting, adhered to its former disposition. In re Lalli, 43 N.Y.2d 65, 400 N.Y.S.2d 761, 371 N.E.2d 481 (1977). It acknowledged that Trimble contemplated a standard of judicial review demanding more than "a mere finding of some remote rational relationship between the statute and a legitimate State purpose," 43 N.Y.2d, at 67, 400 N.Y.S.2d, at 762, 371 N.E.2d, at 482, though less than strictest scrutiny. Finding § 4-1.2 to be "significantly and determinatively different" from the statute overturned in Trimble, the court ruled that the New York law was sufficiently related to the State's interest in " 'the orderly settlement of estates and the dependability of titles to property passing under intestacy laws,' " 43 N.Y.2d, at 67, 69-70, 400 N.Y.S.2d, at 763-764, 371 N.E.2d, at 482-483, quoting Trimble, supra, 430 U.S., at 771, 97 S.Ct., at 1465, to meet the requirements of equal protection. 9 Appellant again sought review here, and we noted probable jurisdiction. 435 U.S. 921, 98 S.Ct. 1482, 55 L.Ed.2d 514 (1978). We now affirm. II 10 We begin our analysis with Trimble. At issue in that case was the constitutionality of an Illinois statute providing that a child born out of wedlock could inherit from his intestate father only if the father had "acknowledged" the child and the child had been legitimated by the intermarriage of the parents. The appellant in Trimble was a child born out of wedlock whose father had neither acknowledged her nor married her mother. He had, however, been found to be her father in a judicial decree ordering him to contribute to her support. When the father died intestate, the child was excluded as a distributee because the statutory requirements for inheritance had not been met. 11 We concluded that the Illinois statute discriminated against illegitimate children in a manner prohibited by the Equal Protection Clause. Although, as decided in Mathews v. Lucas, 427 U.S. 495, 506, 96 S.Ct. 2755, 2762, 49 L.Ed.2d 651 (1976), and reaffirmed in Trimble, supra, 430 U.S., at 767, 97 S.Ct., at 1464, classifications based on illegitimacy are not subject to "strict scrutiny," they nevertheless are invalid under the Fourteenth Amendment if they are not substantially related to permissible state interests. Upon examination, we found that the Illinois law failed that test. 12 Two state interests were proposed which the statute was said to foster: the encouragement of legitimate family relationships and the maintenance of an accurate and efficient method of disposing of an intestate decedent's property. Granting that the State was appropriately concerned with the integrity of the family unit, we viewed the statute as bearing "only the most attenuated relationship to the asserted goal." Trimble, supra, at 768, 97 S.Ct., at 1464. We again rejected the argument that "persons will shun illicit relations because the offspring may not one day reap the benefits" that would accrue to them were they legitimate. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 173, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768 (1972). The statute therefore was not defensible as an incentive to enter legitimate family relationships. 13 Illinois' interest in safeguarding the orderly disposition of property at death was more relevant to the statutory classification. We recognized that devising "an appropriate legal framework" in the furtherance of that interest "is a matter particularly within the competence of the individual States." Trimble, supra, 430 U.S., at 771, 97 S.Ct., at 1465. An important aspect of that framework is a response to the often difficult problem of proving the paternity of illegitimate children and the related danger of spurious claims against intestate estates. See infra, at 270-271. These difficulties, we said, "might justify a more demanding standard for illegitimate children claiming under their fathers' estates than that required either for illegitimate children claiming under their mothers' estates or for legitimate children generally." Trimble, supra, at 770, 97 S.Ct., at 1465. 14 The Illinois statute, however, was constitutionally flawed because, by insisting upon not only an acknowledgment by the father, but also the marriage of the parents, it excluded "at least some significant categories of illegitimate children of intestate men [whose] inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws." Id., at 771, 97 S.Ct., at 1465. We concluded that the Equal Protection Clause required that a statute placing exceptional burdens on illegitimate children in the furtherance of proper state objectives must be more " 'carefully tuned to alternative considerations,' " id., at 772, 97 S.Ct., at 1466, quoting Mathews v. Lucas, supra, 427 U.S., at 513, 96 S.Ct., at 2766, than was true of the broad disqualification in the Illinois law. III 15 The New York statute, enacted in 1965, was intended to soften the rigors of previous law which permitted illegitimate children to inherit only from their mothers. See infra, at 269. By lifting the absolute bar to paternal inheritance, § 4-1.2 tended to achieve its desired effect. As in Trimble, however, the question before us is whether the remaining statutory obstacles to inheritance by illegitimate children can be squared with the Equal Protection Clause. A. 16 At the outset we observe that § 4-1.2 is different in important respects from the statutory provision overturned in Trimble. The Illinois statute required, in addition to the father's acknowledgment of paternity, the legitimation of the child through the intermarriage of the parents as an absolute precondition to inheritance. This combination of requirements eliminated "the possibility of a middle ground between the extremes of complete exclusion and case-by-case determination of paternity." Trimble, 430 U.S., at 770-771, 97 S.Ct., at 1465. As illustrated by the facts in Trimble, even a judicial declaration of paternity was insufficient to permit inheritance. 17 Under § 4-1.2, by contrast, the marital status of the parents is irrelevant. The single requirement at issue here is an evidentiary one—that the paternity of the father be declared in a judicial proceeding sometime before his death.5 The child need not have been legitimated in order to inherit from his father. Had the appellant in Trimble been governed by § 4-1.2, she would have been a distributee of her father's estate. See In re Lalli, 43 N.Y.2d at 68 n. 2, 400 N.Y.S.2d at 762 n. 2, 371 N.E.2d, at 482 n. 2. 18 A related difference between the two provisions pertains to the state interests said to be served by them. The Illinois law was defended, in part, as a means of encouraging legitimate family relationships. No such justification has been offered in support of § 4-1.2. The Court of Appeals disclaimed that the purpose of the statute, "even in small part, was to discourage illegitimacy, to mold human conduct or to set societal norms." In re Lalli, supra, 43 N.Y.2d, at 70, 400 N.Y.S.2d, at 764, 371 N.E.2d, at 483. The absence in § 4-1.2 of any requirement that the parents intermarry or otherwise legitimate a child born out of wedlock and our review of the legislative history of the statute, infra, at 269-271, confirm this view. 19 Our inquiry, therefore, is focused narrowly. We are asked to decide whether the discrete procedural demands that § 4-1.2 places on illegitimate children bear an evident and substantial relation to the particular state interests this statute is designed to serve. B 20 The primary state goal underlying the challenged aspects of § 4-1.2 is to provide for the just and orderly disposition of property at death.6 We long have recognized that this is an area with which the States have an interest of considerable magnitude. Trimble, supra, 430 U.S., at 771, 97 S.Ct., at 1466; Weber v. Aetna Casualty & Surety Co., 406 U.S., at 170, 92 S.Ct., at 1404; Labine v. Vincent, 401 U.S., at 538, 91 S.Ct., at 1021; see also Lyeth v. Hoey, 305 U.S. 188, 193, 59 S.Ct. 155, 158, 83 L.Ed. 119 (1938); Mager v. Grima, 8 How. 490, 493, 12 L.Ed. 1168 (1850). 21 This interest is directly implicated in paternal inheritance by illegitimate children because of the peculiar problems of proof that are involved. Establishing maternity is seldom difficult. As one New York Surrogate's Court has observed: "[T]he birth of the child is a recorded or registered event usually taking place in the presence of others. In most cases the child remains with the mother and for a time is necessarily reared by her. That the child is the child of a particular woman is rarely difficult to prove." In re Ortiz, 60 Misc.2d 756, 761, 303 N.Y.S.2d 806, 812 (1969). Proof of paternity, by contrast, frequently is difficult when the father is not part of a formal family unit. "The putative father often goes his way unconscious of the birth of a child. Even if conscious, he is very often totally unconcerned because of the absence of any ties to the mother. Indeed the mother may not know who is responsible for her pregnancy." Ibid. (emphasis in original); accord, In re Flemm, 85 Misc.2d 855, 861, 381 N.Y.S.2d 573, 576-577 (Surr.Ct.1975); In re Hendrix, 68 Misc.2d, at 443, 326 N.Y.S.2d, at 650; cf. Trimble, supra, 430 U.S., at 770, 772, 97 S.Ct., at 1465, 1466. 22 Thus, a number of problems arise that counsel against treating illegitimate children identically to all other heirs of an intestate father. These were the subject of a comprehensive study by the Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates. This group, known as the Bennett Commission,7 consisted of individuals experienced in the practical problems of estate administration. In re Flemm, supra, 85 Misc.2d, at 858, 381 N.Y.S.2d, at 575. The Commission issued its report and recommendations to the legislature in 1965. See Fourth Report of the Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates, Legis.Doc. No. 19 (1965) (hereinafter Commission Report). The statute now codified as § 4-1.2 was included. 23 Although the overarching purpose of the proposed statute was "to alleviate the plight of the illegitimate child," Commission Report 37, the Bennett Commission considered it necessary to impose the strictures of § 4-1.2 in order to mitigate serious difficulties in the administration of the estates of both testate and intestate decedents. The Commission's perception of some of these difficulties was described by Surrogate Sobel, a member of "the busiest [surrogate's] court in the State measured by the number of intestate estates which traffic daily through this court," In re Flemm, supra, at 857, 381 N.Y.S.2d, at 574 (Sobel, S.), and a participant in some of the Commission's deliberations: 24 "An illegitimate, if made an unconditional distributee in intestacy, must be served with process in the estate of his parent or if he is a distributee in the estate of the kindred of a parent. . . . And, in probating the will of his parent (though not named a beneficiary) or in probating the will of any person who makes a class disposition to 'issue' of such parent, the illegitimate must be served with process. . . . How does one cite and serve an illegitimate of whose existence neither family nor personal representative may be aware? And of greatest concern, how achieve finality of decree in any estate when there always exists the possibility however remote of a secret illegitimate lurking in the buried past of a parent or an ancestor of a class of beneficiaries? Finality in decree is essential in the Surrogates' Courts since title to real property passes under such decree. Our procedural statutes and the Due Process Clause mandate notice and opportunity to be heard to all necessary parties. Given the right to intestate succession, all illegitimates must be served with process. This would be no real problem with respect to those few estates where there are 'known' illegitimates. But it presents an almost insuperable burden as regards 'unknown' illegitimates. The point made in the [Bennett] commission discussions was that instead of affecting only a few estates, procedural problems would be created for many—some members suggested a majority of estates." 85 Misc.2d, at 859, 381 N.Y.S.2d, at 575-576. 25 Cf. In re Leventritt, 92 Misc.2d 598, 601-602, 400 N.Y.S.2d 298, 300-301 (Surr.Ct.1977). 26 Even where an individual claiming to be the illegitimate child of a deceased man makes himself known, the difficulties facing an estate are likely to persist. Because of the particular problems of proof, spurious claims may be difficult to expose. The Bennett Commission therefore sought to protect "innocent adults and those rightfully interested in their estates from fraudulent claims of heirship and harassing litigation instituted by those seeking to establish themselves as illegitimate heirs." Commission Report 265. C 27 As the State's interests are substantial, we now consider the means adopted by New York to further these interests. In order to avoid the problems described above, the Commission recommended a requirement designed to ensure the accurate resolution of claims of paternity and to minimize the potential for disruption of estate administration. Accuracy is enhanced by placing paternity disputes in a judicial forum during the lifetime of the father. As the New York Court of Appeals observed in its first opinion in this case, the "availability [of the putative father] should be a substantial factor contributing to the reliability of the fact-finding process." In re Lalli, 38 N.Y.2d, at 82, 378 N.Y.S.2d, at 355, 340 N.E.2d, at 724. In addition, requiring that the order be issued during the father's lifetime permits a man to defend his reputation against "unjust accusations in paternity claims," which was a secondary purpose of § 4-1.2. Commission Report 266. 28 The administration of an estate will be facilitated, and the possibility of delay and uncertainty minimized, where the entitlement of an illegitimate child to notice and participation is a matter of judicial record before the administration commences. Fraudulent assertions of paternity will be much less likely to succeed, or even to arise, where the proof is put before a court of law at a time when the putative father is available to respond, rather than first brought to light when the distribution of the assets of an estate is in the offing.8 29 Appellant contends that § 4-1.2, like the statute at issue in Trimble, excludes "significant categories of illegitimate children" who could be allowed to inherit "without jeopardizing the orderly settlement" of their intestate fathers' estates. Trimble, 430 U.S., at 771, 97 S.Ct., at 1465. He urges that those in his position—"known" illegitimate children who, despite the absence of an order of filiation obtained during their fathers' lifetimes, can present convincing proof of paternity cannot rationally be denied inheritance as they pose none of the risks § 4-1.2 was intended to minimize.9 30 We do not question that there will be some illegitimate children who would be able to establish their relationship to their deceased fathers without serious disruption of the administration of estates and that, as applied to such individuals, § 4-1.2 appears to operate unfairly. But few statutory classifications are entirely free from the criticism that they sometimes produce inequitable results. Our inquiry under the Equal Protection Clause does not focus on the abstract "fairness" of a state law, but on whether the statute's relation to the state interests it is intended to promote is so tenuous that it lacks the rationality contemplated by the Fourteenth Amendment. 31 The Illinois statute in Trimble was constitutionally unacceptable because it effected a total statutory disinheritance of children born out of wedlock who were not legitimated by the subsequent marriage of their parents. The reach of the statute was far in excess of its justifiable purposes. Section 4-1.2 does not share this defect. Inheritance is barred only where there has been a failure to secure evidence of paternity during the father's lifetime in the manner prescribed by the State. This is not a requirement that inevitably disqualifies an unnecessarily large number of children born out of wedlock. 32 The New York courts have interpreted § 4-1.2 liberally and in such a way as to enhance its utility to both father and child without sacrificing its strength as a procedural prophylactic. For example, a father of illegitimate children who is willing to acknowledge paternity can waive his defenses in a paternity proceeding, e. g., In re Thomas, 87 Misc.2d 1033, 387 N.Y.S.2d 216 (Surr.Ct.1976), or even institute such a proceeding himself.10 N.Y. Family Court Act § 522 (McKinney Supp.1978); In re Flemm, 85 Misc.2d, at 863, 381 N.Y.S.2d, at 578. In addition, the courts have excused "technical" failures by illegitimate children to comply with the statute in order to prevent unnecessary injustice. E. g., In re Niles, 53 A.D.2d 983, 385 N.Y.S.2d 876 (1976), appeal denied, 40 N.Y.2d 809, 392 N.Y.S.2d 1027, 360 N.E.2d 1109 (1977) (filiation order may be signed nunc pro tunc to relate back to period prior to father's death when court's factual finding of paternity had been made); In re Kennedy, 89 Misc.2d 551, 554, 392 N.Y.S.2d 365, 367 (Surr.Ct.1977) (judicial support order treated as "tantamount to an order of filiation," even though paternity was not specifically declared therein). 33 As the history of § 4-1.2 clearly illustrates, the New York Legislature desired to "grant to illegitimates in so far as practicable rights of inheritance on a par with those enjoyed by legitimate children," Commission Report 265 (emphasis added), while protecting the important state interests we have described. Section 4-1.2 represents a carefully considered legislative judgment as to how this balance best could be achieved. 34 Even if, as Mr. Justice BRENNAN believes, § 4-1.2 could have been written somewhat more equitably, it is not the function of a court "to hypothesize independently on the desirability or feasibility of any possible alternative[s]" to the statutory scheme formulated by New York. Mathews v. Lucas, 427 U.S., at 515, 96 S.Ct., at 2767. "These matters of practical judgment and empirical calculation are for [the State]. . . . In the end, the precise accuracy of [the State's] calculations is not a matter of specialized judicial competence; and we have no basis to question their detail beyond the evident consistency and substantiality." Id., at 515-516, 96 S.Ct. at 2767.11 35 We conclude that the requirement imposed by § 4-1.2 on illegitimate children who would inherit from their fathers is substantially related to the important state interests the statute is intended to promote. We therefore find no violation of the Equal Protection Clause. 36 The judgment of the New York Court of Appeals is 37 Affirmed. 38 For the reasons stated in his dissent in Trimble v. Gordon, 430 U.S. 762, 777, 97 S.Ct. 1459, 1468, 52 L.Ed.2d 31 (1977), Mr. Justice REHNQUIST concurs in the judgment of affirmance. 39 Mr. Justice STEWART, concurring. 40 It seems to me that Mr. Justice POWELL's opinion convincingly demonstrates the significant differences between the New York law at issue here and the Illinois law at issue in Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31. Therefore, I cannot agree with the view expressed in Mr. Justice BLACKMUN's opinion concurring in the judgment that Trimble v. Gordon is now "a derelict," or with the implication that in deciding the two cases the way it has this Court has failed to give authoritative guidance to the courts and legislatures of the several States. 41 Mr. Justice BLACKMUN, concurring in the judgment. 42 I agree with the result the Court has reached and concur in its judgment. I also agree with much that has been said in the plurality opinion. My point of departure, of course, is at the plurality's valiant struggle to distinguish, rather than overrule, Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), decided just the Term before last, and involving a small probate estate (an automobile worth approximately $2,500) and a sad and appealing fact situation. Four Members of the Court, like the Supreme Court of Illinois, found the case "constitutionally indistinguishable from Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971)," and were in dissent. Id., at 776, 777, 97 S.Ct., at 1468. 43 It seems to me that the Court today gratifyingly reverts to the principles set forth in Labine v. Vincent. What Mr. Justice Black said for the Court in Labine applies with equal force to the present case and, as four of us thought, to the Illinois situation with which Trimble was concerned. 44 I would overrule Trimble, but the Court refrains from doing so on the theory that the result in Trimble is justified because of the peculiarities of the Illinois Probate Act there under consideration. This, of course, is an explanation, but, for me, it is an unconvincing one. I therefore must regard Trimble as a derelict, explainable only because of the overtones of its appealing facts and offering little precedent for constitutional analysis of State intestate succession laws. If Trimble is not a derelict, the corresponding statutes of other States will be of questionable validity until this Court passes on them, one by one, as being on the Trimble side of the line or the Labine-Lalli side. 45 Mr. Justice BRENNAN, with whom Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice STEVENS join, dissenting. 46 Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), declares that the state interest in the accurate and efficient determination of paternity can be adequately served by requiring the illegitimate child to offer into evidence a "formal acknowledgment of paternity." Id., at 772 n. 14, 97 S.Ct., at 1466. The New York statute is inconsistent with this command. Under the New York scheme, an illegitimate child may inherit intestate only if there has been a judicial finding of paternity during the lifetime of the father. 47 The present case illustrates the injustice of the departure from Trimble worked by today's decision sustaining the New York rule. All interested parties concede that Robert Lalli is the son of Mario Lalli. Mario Lalli supported Robert during his son's youth. Mario Lalli formally acknowledged Robert Lalli as his son. See In re Lalli, 38 N.Y.2d 77, 79, 378 N.Y.S.2d 351, 352, 340 N.E.2d 721, 722 (1975). Yet, for want of a judicial order of filiation entered during Mario's lifetime, Robert Lalli is denied his intestate share of his father's estate. 48 There is no reason to suppose that the injustice of the present case is aberrant. Indeed it is difficult to imagine an instance in which an illegitimate child acknowledged and voluntarily supported by his father, would ever inherit intestate under the New York scheme. Social welfare agencies, busy as they are with errant fathers, are unlikely to bring paternity proceedings against fathers who support their children. Similarly, children who are acknowledged and supported by their fathers are unlikely to bring paternity proceedings against them. First, they are unlikely to see the need for such adversary proceedings. Second, even if aware of the rule requiring judicial filiation orders, they are likely to fear provoking disharmony by suing their fathers. For the same reasons, mothers of such illegitimates are unlikely to bring proceedings against the fathers. Finally, fathers who do not even bother to make out wills (and thus die intestate) are unlikely to take the time to bring formal filiation proceedings. Thus, as a practical matter, by requiring judicial filiation orders entered during the lifetime of the fathers, the New York statute makes it virtually impossible for acknowledged and freely supported illegitimate children to inherit intestate. 49 Two interests are said to justify this discrimination against illegitimates. First, it is argued, reliance upon mere formal public acknowledgments of paternity would open the door to fraudulent claims of paternity. I cannot accept this argument. I adhere to the view that when "a father has formally acknowledged his child . . . there is no possible difficulty of proof, and no opportunity for fraud or error. This purported interest [in avoiding fraud] . . . can offer no justification for distinguishing between a formally acknowledged illegitimate child and a legitimate one." Labine v. Vincent, 401 U.S. 532, 552, 91 S.Ct. 1017, 1028, 28 L.Ed.2d 288 (1971) (BRENNAN, J., dissenting). 50 But even if my confidence in the accuracy of formal public acknowledgments of paternity were unfounded, New York has available less drastic means of screening out fraudulent claims of paternity. In addition to requiring formal acknowledgments of paternity, New York might require illegitimates to prove paternity by an elevated standard of proof, e. g., clear and convincing evidence, or even beyond a reasonable doubt. Certainly here, where there is no factual dispute as to the relationship between Robert and Mario Lalli, there is no justification for denying Robert Lalli his intestate share. 51 Second, it is argued, the New York statute protects estates from belated claims by unknown illegitimates. I find this justification even more tenuous than the first. Publication notice and a short limitations period in which claims against the estate could be filed could serve the asserted state interest as well as, if not better than, the present scheme. In any event, the fear that unknown illegitimates might assert belated claims hardly justifies cutting off the rights of known illegitimates such as Robert Lalli. I am still of the view that the state interest in the speedy and efficient determination of paternity "is completely served by public acknowledgment of parentage and simply does not apply to the case of acknowledged illegitimate children." Id., at 558 n. 30, 91 S.Ct., at 1030 n. 30 (BRENNAN, J., dissenting). 52 I see no reason to retreat from our decision in Trimble v. Gordon. The New York statute on review here, like the Illinois statute in Trimble, excludes "forms of proof which do not compromise the State['s] interests." Trimble v. Gordon, supra, 430 U.S., at 772 n. 14, 97 S.Ct., at 1466 n. 14. The statute thus discriminates against illegitimates through means not substantially related to the legitimate interests that the statute purports to promote. I would invalidate the statute. 1 1965 N.Y. Laws, ch. 958, § 1. The statute was initially codified as N.Y. Decedent Est. Law § 83-a. In 1966 it was recodified without material change as N.Y. Est., Powers & Trusts Law § 4-1.2 (McKinney 1967). 1966 N.Y. Laws, ch. 952. Further nonsubstantive amendments were made the next year. 1967 N.Y. Laws, ch. 686, §§ 28, 29. 2 Section 4-1.2 in its entirety provides: "(a) For the purposes of this article: "(1) An illegitimate child is the legitimate child of his mother so that he and his issue inherit from his mother and from his maternal kindred. "(2) An illegitimate child is the legitimate child of his father so that he and his issue inherit from his father if a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity in a proceeding instituted during the pregnancy of the mother or within two years from the birth of the child. "(3) The existence of an agreement obligating the father to support the illegitimate child does not qualify such child or his issue to inherit from the father in the absence of an order of filiation made as prescribed by subparagraph (2). "(4) A motion for relief from an order of filiation may be made only by the father, and such motion must be made within one year from the entry of such order. "(b) If an illegitimate child dies, his surviving spouse, issue, mother, maternal kindred and father inherit and are entitled to letters of administration as if the decedent were legitimate, provided that the father may inherit or obtain such letters only if an order of filiation has been made in accordance with the provisions of subparagraph (2)." N.Y.Est., Powers & Trusts Law § 4-1.2 (McKinney 1967). 3 Appellant also claimed that § 4-1.2 was invalid under N.Y.Const., Art. 1, § 11. The New York Court of Appeals did not rule on this issue, nor do we. We also do not consider whether § 4-1.2 unconstitutionally discriminates on the basis of sex or whether the administratrix of Mario's estate is required to account for her alleged failure to bring a wrongful-death action on behalf of appellant. The latter question was not considered by the Court of Appeals, and the former was raised for the first time by a brief amici curiae in this Court. 4 On remand from this Court, the New York Attorney General was permitted to intervene as a defendant-appellee. He has filed a brief on the merits and argued the case in this Court. Appellee Rosamond Lalli did not present oral argument and has not filed a brief on the merits. 5 Section 4-1.2 requires not only that the order of filiation be made during the lifetime of the father, but that the proceeding in which it is sought be commenced "during the pregnancy of the mother or within two years from the birth of the child." The New York Court of Appeals declined to rule on the constitutionality of the two-year limitation in both of its opinions in this case because appellant concededly had never commenced a paternity proceeding at all. Thus, if the rule that paternity be judicially declared during his father's lifetime were upheld, appellant would lose for failure to comply with that requirement alone. If, on the other hand, appellant prevailed in his argument that his inheritance could not be conditioned on the existence of an order of filiation, the two-year limitation would become irrelevant, since the paternity proceeding itself would be unnecessary. See In re Lalli, 43 N.Y.2d 65, 68 n. 1, 400 N.Y.S.2d 761, 762 n. 1, 371 N.E.2d 481, 482 n. 1 (1977); In re Lalli, 38 N.Y.2d 77, 80 n., 378 N.Y.S.2d 351, 353 n., 340 N.E.2d 721, 723 n. (1975). As the New York Court of Appeals has not passed upon the constitutionality of the two-year limitation, that question is not before us. Our decision today therefore sustains § 4-1.2 under the Equal Protection Clause only with respect to its requirement that a judicial order of filiation be issued during the lifetime of the father of an illegitimate child. 6 The presence in this case of the State's interest in the orderly disposition of a decedent's property at death distinguishes it from others in which that justification for an illegitimacy-based classification was absent. E. g., Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974); Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 170, 92 S.Ct. 1400, 1404, 31 L.Ed.2d 768 (1972); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). 7 The Bennett Commission was created by the New York Legislature in 1961. It was instructed to recommend needed changes in certain areas of state law, including that pertaining to "the descent and distribution of property, and the practice and procedure relating thereto." 1961 N.Y.Laws, ch. 731, § 1. 8 In affirming the judgment below, we do not, of course, restrict a State's freedom to require proof of paternity by means other than a judicial decree. Thus, a State may prescribe any formal method of proof, whether it be similar to that provided by § 4-1.2 or some other regularized procedure that would assure the authenticity of the acknowledgment. As we noted in Trimble, 430 U.S., at 772 n. 14, 97 S.Ct., at 1466 n. 14, such a procedure would be sufficient to satisfy the State's interests. See also n. 11, infra. 9 Appellant claims that in addition to discriminating between illegitimate and legitimate children, § 4-1.2, in conjunction with N.Y.Dom.Rel.Law § 24 (McKinney 1977), impermissibly discriminates between classes of illegitimate children. Section 24 provides that a child conceived out of wedlock is nevertheless legitimate if, before or after his birth, his parents marry, even if the marriage is void, illegal, or judicially annulled. Appellant argues that by classifying as "legitimate" children born out of wedlock whose parents later marry, New York has, with respect to these children, substituted marriage for § 4-1.2's requirement of proof of paternity. Thus, these "illegitimate" children escape the rigors of the rule unlike their unfortunate counterparts whose parents never marry. Under § 24, one claiming to be the legitimate child of a deceased man would have to prove not only his paternity but also his maternity and the fact of the marriage of his parents. These additional evidentiary requirements make it reasonable to accept less exacting proof of paternity and to treat such children as legitimate for inheritance purposes. 10 In addition to making intestate succession possible, of course, a father is always free to provide for his illegitimate child by will. See In re Flemm, 85 Misc.2d 855, 864, 381 N.Y.S.2d 573, 579 (Surr.Ct.1975). 11 The dissent of Mr. Justice BRENNAN would reduce the opinion in Trimble v. Gordon, supra, to a simplistic holding that the Constitution requires a State, in a case of this kind, to recognize as sufficient any "formal acknowledgment of paternity." This reading of Trimble is based on a single phrase lifted from a footnote. 430 U.S., at 772 n. 14, 97 S.Ct., at 1466. It ignores both the broad rationale of the Court's opinion and the context in which the note and the phrase relied upon appear. The principle that the footnote elaborates is that the States are free to recognize the problems arising from different forms of proof and to select those forms "carefully tailored to eliminate imprecise and unduly burdensome methods of establishing paternity." Ibid. The New York Legislature, with the benefit of the Bennett Commission's study, exercised this judgment when it considered and rejected the possibility of accepting evidence of paternity less formal than a judicial order. Commission Report 266-267. The "formal acknowledgment" contemplated by Trimble is such as would minimize post-death litigation, i. e., a regularly prescribed, legally recognized method of acknowledging paternity. See n. 8, supra. It is thus plain that footnote 14 in Trimble does not sustain the dissenting opinion. Indeed, the document relied upon by the dissent is not an acknowledgment of paternity at all. It is a simple "Certificate of Consent" that apparently was required at the time by New York for the marriage of a minor. It consists of one sentence: "THIS IS TO CERTIFY that I, who have hereto subscribed my name, do hereby consent that Robert Lalli who is my son and who is under the age of 21 years, shall be united in marriage to Janice Bivins by any minister of the gospel or other person authorized by law to solemnize marriages." App. A-14. Mario Lalli's signature to this document was acknowledged by a notary public, but the certificate contains no oath or affirmation as to the truth of its contents. The notary did no more than confirm the identity of Lalli. Because the certificate was executed for the purpose of giving consent to marry, not of proving biological paternity, the meaning of the words "my son" is ambiguous. One can readily imagine that had Robert Lalli's half-brother, who was not Mario's son but who took the surname Lalli and lived as a member of his household, sought permission to marry, Mario might also have referred to him as "my son" on a consent certificate. The important state interests of safeguarding the accurate and orderly disposition of property at death, emphasized in Trimble and reiterated in our opinion today, could be frustrated easily if there were a constitutional rule that any notarized but unsworn statement identifying an individual as a "child" must be accepted as adequate proof of paternity regardless of the context in which the statement was made.

12

439 U.S. 234 99 S.Ct. 505 58 L.Ed.2d 484 BOARD OF GOVERNORS OF the FEDERAL RESERVE SYSTEM, Petitioner,v.FIRST LINCOLNWOOD CORPORATION. No. 77-832. Argued Oct. 11, 1978. Decided Dec. 11, 1978. Syllabus Section 3(a) of the Bank Holding Company Act of 1956 (Act) prohibits any company from acquiring control of a bank without prior approval by the Board of Governors of the Federal Reserve System (Board). Under § 3(c) of the Act, the Board must disapprove a transaction that would, inter alia, generate anticompetitive effects not clearly outweighed by beneficial effects upon the acquired bank's ability to serve the community. Section 3(c) also directs the Board "[i]n every case" to "take into consideration the financial and managerial resources and future prospects of the company or companies and the banks concerned, and the convenience and needs of the community to be served." Individual stockholders who controlled an existing bank organized respondent corporation to acquire their bank stock. Respondent submitted the transaction for the Board's approval. Upon review, the Board found that the transaction would have no anticompetitive effects and would not change the services offered by the bank to customers. However, it ultimately disapproved the transaction, against the recommendation of the Comptroller of the Currency, on the ground that formation of the holding company would not bring the bank's financial position up to the Board's standards. The Court of Appeals set aside the Board's order, holding that § 3(c) empowers the Board to withhold approval because of financial or managerial deficiencies only if those deficiencies would be "caused or enhanced by the proposed transaction." Held: 1. The Board has authority under § 3(c) to disapprove formation of a bank holding company solely on grounds of financial or managerial unsoundness. This conclusion is supported by the language of the statute and the legislative history and in addition comports with the Board's own longstanding construction, which is entitled to great respect. Pp. 242-248. 2. The Board's authority is not limited to instances in which the financial or managerial unsoundness would be caused or exacerbated by the proposed transaction. Such a limitation would be inconsistent with the language and legislative history of the statute and with the Board's own construction of its mandate, a construction in which Congress has acquiesced. Nor does the legislative history suggest that Congress intended to reserve questions of bank safety to the Comptroller of the Currency or state agencies except where a transaction would harm the financial condition of an applicant or a bank. Pp. 249-252. 3. The Board's denial of the application is supported by substantial evidence that respondent would not be a sufficient source of financial and managerial strength to its subsidiary bank. Pp. 252-254. 560 F.2d 258, reversed. Stephen M. Shapiro, Chicago, Ill., for petitioner. George B. Collins, Chicago, Ill., for respondent. Mr. Justice MARSHALL delivered the opinion of the Court. 1 Section 3(a) of the Bank Holding Company Act of 1956, 12 U.S.C. § 1842(a), prohibits any company from acquiring control of a bank without prior approval by the Board of Governors of the Federal Reserve System (Board).1 Under § 3 (c)(1) of the Act, 12 U.S.C. § 1842(c)(1), the Board may not approve a transaction that would create a monopoly or further an attempt to monopolize the business of banking. In addition, it must disapprove a transaction that would generate anticompetitive effects not clearly outweighed by beneficial effects upon the bank's ability to serve the community. § 1842(c)(2). The final sentence of § 3(c) directs that 2 "[i]n every case, the Board shall take into consideration the financial and managerial resources and future prospects of the company or companies and the banks concerned, and the convenience and needs of the community to be served."2 3 The threshold question before us is whether this final sentence authorizes the Board to disapprove a transaction on grounds of financial unsoundness in the absence of any anticompetitive impact. If so, we must decide whether the Board can only exercise that authority when the transaction would cause or exacerbate the financial unsoundness of the holding company or a subsidiary bank. 4 * The First National Bank of Lincolnwood, Ill., is controlled by four individuals who hold 86% of its stock in a voting trust. These individuals organized respondent, the First Lincolnwood Corp., to serve as a bank holding company. They planned to exchange their shares in the bank for shares of respondent and, in addition, to have respondent assume a $3.7 million debt they had incurred in acquiring control of the bank.3 Respondent intended to use the dividends it would receive on the bank's shares to retire this debt over a 12-year period. Further, in order to augment the bank's capital, respondent would issue $1.5 million in capital notes and then use the proceeds to purchase new shares issued by the bank. The purpose of restructuring ownership interests in this fashion was to enable the holding company and the bank to file a consolidated tax return and thereby realize substantial tax savings.4 5 Because under the proposed transaction respondent would become a bank holding company, § 3(a) of the Act required that the proposal be submitted for the Board's approval. See n. 1, supra. Respondent filed its application with the Federal Reserve Bank of Chicago, as specified by Board regulations.5 The Chicago Reserve Bank concluded that the Lincolnwood bank's capital position—in essence, the difference between its assets and its liabilities—was inadequate and, under respondent's proposal, was unlikely to improve enough to attain the minimum level the Board had determined necessary to protect the bank's depositors.6 Nonetheless, the Lincolnwood bank's favorable earnings prospects and strong management led the Chicago Reserve Bank to recommend that the transaction be approved. The Comptroller of the Currency, however, independently reviewed respondent's application and concluded that it should be denied unless the bank's capital position was strengthened. 6 Respondent thereupon modified its proposal to accommodate the Comptroller's objections. Instead of issuing $1.5 million in capital notes and using the proceeds to purchase new bank stock, respondent proposed that the bank itself sell $1 million in long-term capital notes and $1.1 million in new common stock. In addition, respondent proposed a substantial reduction in the dividends to be paid on the bank stock. Upon review of the modified proposal, the Chicago Reserve Bank adhered to its original recommendation, finding the modification salutary insofar as it increased the total addition to the bank's capital, though "slightly unfavorable" insofar as it decreased the addition to the bank's equity capital from $1.5 to $1.1 million.7 The Comptroller considered the revised plan superior to the original proposal; therefore, he, too, recommended approval. 7 The Board staff independently evaluated the application and determined that the bank's projected capital position would fall below the Board's requirements.8 The staff also found that respondent had not established its ability to raise the additional capital without the individual shareholders' incurring more debt. Although acknowledging that the bank's management was capable, the staff concluded that 8 "it would appear desirable that Bank's overall capital position should be materially improved and that financing arrangements for the proposed capital injections into Bank [should] be made more definite." App. 54-55. 9 The Board concurred. It reviewed each of the elements enumerated in § 3(c), determining first that the proposal had no anticompetitive impact because the transaction merely transferred control of the bank "from individuals to a corporation owned by the same individuals." First Lincolnwood Corp., 62 Fed.Res.Bull. 153 (1976). Similarly, the Board found that the proposal would effect no significant changes in the services offered by the bank to customers, so factors relating to the convenience and needs of the community militated neither for nor against approval. Id., at 154. Thus, the financial and managerial considerations specified in the final sentence of § 3(c) were dispositive of respondent's application. 10 Addressing these considerations, the Board ruled that a bank holding company "should provide a source of financial and managerial strength to its subsidiary bank(s)." 62 Fed.Res.Bull., at 153. Here, the Board found, even if the bank's optimistic earnings projections were realized, respondent would lack the financial flexibility necessary both to service its debt and to maintain adequate capital at the bank. This, as well as the uncertainty regarding the proposed source of the capital injections, raised serious doubts as to respondent's financial ability to resolve unforeseen problems that could arise at the bank. The Board therefore concluded that 11 "it would not be in the public interest to approve the formation of a bank holding company with an initial debt structure that could result in the weakening of Bank's overall financial condition." Id., at 154. 12 A divided panel of the Court of Appeals for the Seventh Circuit affirmed, the majority finding substantial evidence to support the denial of respondent's application. 546 F.2d 718, 720-721 (1976).9 On rehearing en banc, the court unanimously set aside the Board's order. The court recognized that Congress had empowered the Board "to deny approval of a bank acquisition upon finding it not to be in the public interest for reasons other than an anticompetitive tendency." 560 F.2d 258, 261 (1977). However, in the court's view, § 3(c) of the Act did not permit the Board to withhold approval because of financial or managerial deficiencies unless those deficiencies were "caused or enhanced by the proposed transaction." 560 F.2d, at 262. This transaction, the court observed, merely reshuffled ownership interests in the bank. Apart from the proposed addition to capital and the tax advantage, which could accelerate reduction of the $3.7 million debt, respondent's proposal was without financial consequence. The court therefore held that the Board had overstepped its authority under § 3(c) in denying respondent's application. 560 F.2d, at 262-263. 13 We granted certiorari because of the impact of this holding on the Board's ability to fulfill its regulatory responsibilities under the Bank Holding Company Act. 434 U.S. 1061, 98 S.Ct. 1231, 55 L.Ed.2d 760 (1978). We conclude that the court below improperly restricted the Board's authority, and, accordingly, we reverse. II 14 Respondent contends that the Court of Appeals misinterpreted the legislative history of the Bank Holding Company Act in sustaining the Board's authority to deny applications for holding-company status solely on grounds of financial or managerial unsoundness. As respondent reads the legislative history, Congress' only concern in passing the Act was with the anticompetitive potential in the concentration of banking resources and the combination of banking and nonbanking enterprises. See S.Rep.No.1095, 84th Cong., 1st Sess., 2 (1955), U.S.Code Cong. & Admin.News 1956, p. 2482; S.Rep.No.1179, 89th Cong., 2d Sess., 2 (1966), U.S.Code Cong. & Admin.News 1966, p. 2385. This focus on competitive considerations was reflected in the amendment of the Act in 1966 to conform § 3(c) with the standards enunciated in the Bank Merger Act amendments of the same year. See 80 Stat. 8, 12 U.S.C. § 1828(c)(5). The amended standards in the Bank Merger Act were intended to provide an exception to the antitrust laws for those bank mergers in which the benefits to the community outweighed the anticompetitive impact. See United States v. Third Nat. Bank, 390 U.S. 171, 88 S.Ct. 882, 19 L.Ed.2d 1015 (1968). By incorporating these same standards into the Bank Holding Company Act, respondent infers, Congress intended to authorize the Board to consider financial and managerial resources only as counterweights to a transaction's anticompetitive impact. We do not agree that the Board's authority under the Bank Holding Company Act is so limited. 15 The language of the statute supports the Board's interpretation of § 3(c) as an authorization to deny applications on grounds of financial and managerial unsoundness even in the absence of any anticompetitive impact. Section 3(c) directs the Board to consider the financial and managerial resources and future prospects of the applicants and banks concerned "[i]n every case," not just in cases in which the Board finds that the transaction will have an anticompetitive effect. 16 Moreover, the Board's interpretation of § 3(c) draws support from the legislative history. Section 19 of the original version of the Banking Act of 1933, 48 Stat. 186, authorized the Board to regulate the financial and managerial soundness of bank holding companies and their banking subsidiaries. Holding companies were required to obtain a permit from the Board before voting the shares of a national bank. Section 19 directed the Board to consider, in acting upon an application for a voting permit, the financial condition of the company and the general character of its management. 48 Stat. 186. In addition, an applicant had to submit to financial examination by the Board and to maintain a prescribed reserve of liquid assets. 48 Stat. 187. However, the voting-permit provisions applied only if the bank was a member of the Federal Reserve System and the holding company sought to exercise control by actually voting the bank shares. Because of this limitation, § 19 ultimately proved of little value in ensuring the financial responsibility of bank holding companies and their subsidiaries. See H.R.Rep.No.609, 84th Cong., 1st Sess., 4-5 (1955). 17 To ameliorate this deficiency, Congress expanded the Board's authority by enacting the Bank Holding Company Act of 1956. Section 3(c) of the Act enumerated five factors for the Board to consider whenever a company sought to acquire control of a bank: 18 "(1) the financial history and condition of the company or companies and the banks concerned; (2) their prospects; (3) the character of their management; (4) the convenience, needs, and welfare of the communities and the area concerned; and (5) whether or not the effect of such acquisition or merger or consolidation would be to expand the size or extent of the bank holding company system involved beyond limits consistent with adequate and sound banking, the public interest, and the preservation of competition in the field of banking." 70 Stat. 135. 19 The House Report on the Act noted the similarity between these factors and those specified in other banking statutes as the basis for admitting state banks to membership in the Federal Reserve System and for granting federal deposit-insurance coverage. H.R.Rep.No.609, supra, at 15. In both instances, the adequacy of the bank's capital is an important factor to be considered by the reviewing agency. See 12 U.S.C. §§ 329, 1816.10 20 In amending § 3(c) to conform to the language of the Bank Merger Act in 1966, see supra, at 243, Congress did not intend to confine the Board's consideration of financial and managerial soundness only to transactions that would have an anticompetitive impact. The sole reason given for the change was "the interests of uniform standards" in regulating both mergers and acquisitions in the banking industry. S.Rep.No.1179, supra, at 9. Regardless of whether Congress intended to limit the inquiry under the Bank Merger Act,11 there is no indication that it intended to incorporate that limitation into the Bank Holding Company Act. Indeed, in 1966 Congress repealed the voting-permit provisions of the 1933 Act, which had been left intact in 1956, because it believed that the Board retained authority under § 3(c), even as amended, to ensure the financial and managerial soundness of holding companies and their subsidiary banks. The Senate Committee on Banking and Currency stated: 21 "Since the Bank Holding Company Act makes it necessary for any bank holding company to obtain the Board's prior approval before acquiring the stock of any bank (whether member or nonmember) and since, in granting that approval, the Board must consider the financial condition and management of the holding company, the voting permit procedure . . . serves no substantial purpose." S.Rep.No.1179, supra, at 12, U.S.Code Cong. & Admin.News 1966, p. 2396. 22 In 1970, Congress amended the Bank Holding Company Act to extend its coverage to holding companies that controlled only one bank. 84 Stat. 1760, 12 U.S.C. § 1841(a). Previously, the Act had applied only to multibank holding companies. The principal purpose of this change was to prevent one-bank holding companies from entering businesses not related to banking. S.Rep.No.91-1084, pp. 2-4 (1970), U.S.Code Cong. & Admin.News 1970, p. 5519. Nothing in the legislative history of the 1970 amendments suggests that in extending the Act, Congress intended to depart from its prior understanding of the Board's authority or to establish a different rule for one-bank holding companies.12 23 Our conclusion as to the scope of the Board's authority is bolstered by reference to the principle that an agency's long-standing construction of its statutory mandate is entitled to great respect, "especially when Congress has refused to alter the administrative construction." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969); Zemel v. Rusk, 381 U.S. 1, 11-12, 85 S.Ct. 1271, 1278-1279, 14 L.Ed.2d 179 (1965); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). The Board has regularly treated deficiencies in the financial and managerial resources of holding companies and their banking subsidiaries as sufficient grounds for denying an application. Clayton Bancshares Corp., 50 Fed.Res.Bull. 1261, 1264-1265 (1964); Mid-Continent Bancorporation, 52 Fed.Res.Bull. 198, 200-201 (1966); Midwest Bancorporation, Inc., 56 Fed.Res.Bull. 948, 950 (1970); Citizens Bancorp, 61 Fed.Res.Bull. 806 (1975); Bankshares of Hawley, Inc., 62 Fed.Res.Bull. 610 (1976); see 12 CFR § 265.2(f)(22)(vii) (1978). Moreover, Congress has been made aware of this practice,13 yet four times has "revisited the Act and left the practice untouched." Saxbe v. Bustos, 419 U.S. 65, 74, 95 S.Ct. 272, 279, 42 L.Ed.2d 231 (1974). See 80 Stat. 236; 84 Stat. 1760; 91 Stat.1388; 92 Stat. 3641.14 We therefore agree with the Court of Appeals that the Board can disapprove formation of a bank holding company solely on grounds of financial or managerial unsoundness. III 24 While the Court of Appeals recognized the Board's authority to treat financial or managerial unsoundness as a dispositive consideration, it held that this authority was limited to instances in which the unsoundness was caused or exacerbated by the proposed transaction.15 The Court of Appeals rejected the Board's argument that permission to form a holding company is "a reward which it may withhold until the applicant's financial status fulfills the Board's standard of desirability." 560 F.2d, at 262. The legislative history, the court held, revealed nothing that would allow the Board to disapprove formation of a bank holding company where the transaction would not weaken a subsidiary bank's financial condition. In addition, the already extensive regulation of the financial integrity of banks by the Comptroller of the Currency and state regulatory agencies persuaded the court that Congress could not have intended to extend identical authority to the Federal Reserve Board. Id., at 262-263. 25 We perceive no basis for the limitation the Court of Appeals imposed. Certainly, it is not compelled by the language of the statute. By its terms, § 3(c) requires the Board to consider financial and managerial factors in "every case." Just as we observed earlier that this language encompasses cases in which the proposed transaction would have no anticompetitive effect, supra, at 243, so, too, it encompasses cases in which the transaction would not weaken the bank or the bank holding company. Indeed, the Court of Appeals' construction of the statute would require the Board to approve formation of a bank holding company with corrupt management simply because management would become no more corrupt by virtue of the transaction. We hesitate to adopt a construction that would yield such an anomalous result. 26 Furthermore, the legislative record does provide support for the Board's actions. In deliberations on the Bank Holding Company Act, see, e. g., H.R.Rep.No.609, 84th Cong., 1st Sess., 4-5 (1955); H.R.Rep.No.95-1383, p. 19 (1978), and in subsequent inquiries into banking regulation, see, e. g., Hearing on Problem Banks, supra, n. 6; Hearings on the Safe Banking Act of 1977, pts. 1-4, supra, n. 13, Congress has evinced substantial concern for the financial soundness of the banking system. And Congress has long regarded capital adequacy as a measure of bank safety. See, e. g., 12 U.S.C. § 329 (Federal Reserve Act), § 1816 (Federal Deposit Insurance Act); S.Rep.No.133, 63d Cong., 1st Sess., pt. 2, p. 11 (1913); S.Rep.No.1623, 82d Cong., 2d Sess., 2 (1952). To rule that the Board could not require applicants for holding-company status and their subsidiary banks to meet minimum capital-adequacy requirements would be inconsistent with this general legislative mandate. 27 Nor can we accept the conclusion that Congress intended to reserve questions of bank safety to the Comptroller or state agencies except where a transaction would harm the financial condition of an applicant or the bank. The history of the Bank Holding Company Act nowhere suggests that Congress sought to delineate such a jurisdictional boundary. Indeed, our decision in Whitney Nat. Bank v. Bank of New Orleans, 379 U.S. 411, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965), indicates that the Board's jurisdiction is paramount. We ruled there that the Comptroller could not deny a new bank a license to do business—a decision normally within his competence, see 12 U.S.C. §§ 26, 27—once the Board approved a bank holding company transaction that entailed formation of the new bank. 379 U.S., at 419, 423, 85 S.Ct., at 557, 559, 13 L.Ed.2d 386. It follows that the Federal Reserve Board's actions here are not invalid merely because the powers exercised duplicate those of other regulators. 28 Again, our conclusion is influenced by the principle that courts should defer to an agency's construction of its own statutory mandate, Red Lion Broadcasting Co. v. FCC, 395 U.S., at 381, 89 S.Ct., at 1801; Commissioner v. Sternberger's Estate, 348 U.S. 187, 199, 75 S.Ct. 229, 235, 99 L.Ed. 246 (1955), particularly when that construction accords with well-established congressional goals. The Board has frequently reiterated that holding companies should be a source of strength to subsidiary financial institutions. See, e. g., Northern States Financial Corp., 58 Fed.Res.Bull. 827, 828 (1972); Citizens Bancorp, 61 Fed.Res.Bull. 806 (1975); Downs Bancshares, Inc., 61 Fed.Res.Bull. 673 (1975). It has used the substantial advantages of bank holding-company status to induce applicants to improve their own and their subsidiaries' capital positions. See P. Heller, Handbook of Federal Bank Holding Company Law 127, and n. 195 (1976); The Bank Holding Company—1973, pp. 35, 83 (R. Johnson ed. 1973).16 In fact, between 1970 and 1975, the Board convinced 397 applicants to provide additional capital totaling $788 million and indirectly prompted the infusion of even more capital. Hearings on Financial Institutions and the Nation's Economy, supra n. 13, at 2403 (testimony of Philip Coldwell, member of the Board of Governors of the Federal Reserve System). Congress has been apprised of this consistent administrative practice, ibid.; Compendium of Major Issues in Bank Regulation, supra n. 13, at 379, and has not undertaken to change it. Indeed, a Report of the Senate Committee on Banking, Housing, and Urban Affairs in 1977 echoed the exact language of the Board's standard. S.Rep.No.95-323, p. 11 ("Holding companies are supposed to be a source of strength to subsidiary financial institutions").17 29 We hold that the Board may deny applications for holding-company status solely on grounds of financial or managerial unsoundness, regardless of whether that unsoundness would be caused or exacerbated by the proposed transaction.18 IV 30 Respondent contends that the Board's denial of its application was arbitrary and capricious. We have already determined that the Board's "source of strength" requirement is consistent with the language, purpose, and legislative history of the Bank Holding Company Act. Our only remaining inquiry is whether substantial evidence supports the Board's finding that respondent fell short of this standard. 12 U.S.C. § 1848.19 31 The Court of Appeals panel had "no difficulty" in finding substantial evidence to sustain the Board's decision, 546 F.2d, at 720, and respondent did not press this issue in its petition for rehearing en banc. We, too, find in this record more than the amount of evidence "a reasonable mind might accept as adequate to support [the Board's] conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938); accord, Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Consolo v. FMC, 383 U.S. 607, 619-620, 86 S.Ct. 1018, 1026-1027, 16 L.Ed.2d 131 (1966). The application failed to establish that respondent could raise the $2.1 million in additional capital in the manner proposed. Moreover, it revealed that even with this infusion, the bank's capital would have been well below the level the Board had determined necessary to sustain the financial soundness of the enterprise. Thus, the Board was entitled to conclude that respondent would not be a sufficient source of financial and managerial strength to its subsidiary bank. Having so determined, the Board was entitled to deny the application.20 32 We hold that the Board's actions were within the authority conferred by Congress and were supported by substantial evidence. Consequently, the judgment is 33 Reversed. 34 Mr. Justice STEVENS, with whom Mr. Justice REHNQUIST joins, dissenting. 35 This case involves a proposal to restructure the ownership of a relatively small bank in order to reduce its income taxes. From the standpoint of the bank's competitors, its creditors, its owners, and its customers, as well as the public at large, the proposed transaction is at worst completely harmless, and at best substantially beneficial. 36 The Federal Reserve Board nevertheless refused to approve the transaction, not because of any concern about adverse effects of the transaction itself, but rather to induce the owners of the bank to take action that the Board has no authority to require of bank owners generally. In the Board's view, its approval power is a sort of lever that it may use to bend the will of independent bank owners and managers. I share the opinion expressed by Chief Judge Fairchild for the unanimous Court of Appeals for the Seventh Circuit sitting en banc that the application of this kind of leverage has not been authorized by Congress.1 37 The normal reason for subjecting any type of transaction to advance administrative approval is a concern about the possible consequences of the transaction itself. I can think of no judicial precedent or statutory analog authorizing an agency to use approvals as an all-purpose tool to accomplish objects entirely unrelated to the approved transaction. Before concluding that Congress intended to pass such an unprecedented approval statute, therefore, I would insist upon a clear expression of that intent from Congress itself. Because the language, structure, and legislative history of § 3(c) of the Bank Holding Company Act of 1956, 12 U.S.C. § 1842(c), belie any such intent, I cannot accept the Board's interpretation. 38 Read in its entirety, the language of § 3(c) confines the Board's authority to the evaluation of the effects of proposed holding company transactions.2 Specifically, the statute commands the Board to disapprove any acquisition "which would result in a monopoly," or "whose effect " may be substantially to lessen competition, unless it finds that the "anticompetitiveeffects " are outweighed "by the probable effect of the transaction in meeting the convenience and needs of the community." Although the last sentence in § 3(c) does not also explicitly limit the Board's consideration to the financial and managerial "effects" of the proposed reorganization, when read in context its reference to "future prospects" surely reflects the same concern for the consequences of the transaction rather than pre-existing or unrelated conditions.3 39 The overall structure of the federal banking laws lends credence to this interpretation. It is not the Board but instead the Comptroller of the Currency that has day-to-day regulatory jurisdiction over existing financial and managerial conditions at national banks such as the one involved here.4 If the Board can employ its holding-company approval power as a lever for inducing banks to achieve more satisfactory financing, management, future prospects, and community service, it can indirectly exercise authority that Congress has denied it and given directly to another agency.5 40 The sparse legislative history cited by the Court on this point, ante, at 250, is of no help to the Board's position. It is true that Congress has been concerned with the "financial soundness" and "capital adequacy" of banks controlled by holding companies. But that concern is simply irrelevant to the issue whether Congress intended the Board to deny holding-company approval that would not adversely affect, but rather would enhance, the bank's financial soundness and capital adequacy. 41 The authority claimed by the Board is also illogical. If certain capital ratios are essential for sound banking operations, and if the Comptroller is unable to achieve them, then the Board should be given power to require them by a general rule or standard applicable to all banks. Haphazard enforcement of a policy against only those banks that seek approval of holding company status is a most unusual and disorderly way to administer any significant policy. 42 In the end, the Court's decision rests entirely on "the principle that courts should defer" to the administrative agency's own interpretation of its statutory authority. Ante, at 251. The Court assumes that the Board's asserted authority originated with the passage of the Bank Holding Company Act of 1956. Ante, at 244. Not until eight years later, however, did the Board purport to exercise that authority, and it did so without explaining the statutory basis for its actions. Clayton Bancshares Corp., 50 Fed.Res.Bull. 1261, 1264-1265 (1964); see opinion of the Court, ante, at 248. Such a belated and casual assertion of power by the Board, no matter how long it has persisted, hardly qualifies as the type of administrative policy that may stand in place of an expression of legislative intent. See SEC v. Sloan, 436 U.S. 103, 98 S.Ct. 1702, 56 L.Ed.2d 148 (overturning as beyond the authority of the SEC a policy followed by that agency for 34 years). See also Adamo Wrecking Co. v. United States, 434 U.S. 275, 287-289, and n. 5, 98 S.Ct. 566, 574, 54 L.Ed.2d 538. I would not allow this agency, no matter how well respected and how well motivated, to construe vague statutory language as conferring such wide-ranging power on itself. Like Chief Judge Fairchild and his colleagues, I "do not find this power or breadth of discretion in the statute." 560 F.2d 258, 262 (CA7 1977).6 43 I respectfully dissent. 1 More specifically, § 3(a), 70 Stat. 134, as amended, 80 Stat. 237, 12 U.S.C. § 1842(a), provides in pertinent part: "It shall be unlawful, except with the prior approval of the Board, (1) for any action to be taken that causes any company to become a bank holding company; (2) for any action to be taken that causes a bank to become a subsidiary of a bank holding company; (3) for any bank holding company to acquire direct or indirect ownership or control of any voting shares of any bank if, after such acquisition, such company will directly or indirectly own or control more than 5 per centum of the voting shares of such bank; (4) for any bank holding company or subsidiary thereof, other than a bank, to acquire all or substantially all of the assets of a bank; or (5) for any bank holding company to merge or consolidate with any other bank holding company." Section 2(a)(1) of the Act, 70 Stat. 133, as amended, 84 Stat. 1760, 12 U.S.C. § 1841(a)(1), defines a "bank holding company" as "any company which has control over any bank or over any company that is or becomes a bank holding company by virtue of this Act." A company has "control" over a bank or over any company if "(A) the company directly or indirectly or acting through one or more other persons owns, controls, or has power to vote 25 per centum or more of any class of voting securities of the bank or company; "(B) the company controls in any manner the election of a majority of the directors or trustees of the bank or company; or "(C) the Board determines, after notice and opportunity for hearing, that the company directly or indirectly exercises a controlling influence over the management or policies of the bank or company." § 2(a)(2) of the Act, 70 Stat. 133, as amended, 84 Stat. 1760, 12 U.S.C. § 1841(a)(2). 2 In its entirety, § 3(c) provides: "The Board shall not approve— "(1) any acquisition or merger or consolidation under this section which would result in a monopoly, or which would be in furtherance of any combination or conspiracy to monopolize or to attempt to monop[o]lize the business of banking in any part of the United States, or "(2) any other proposed acquisition or merger or consolidation under this section whose effect in any section of the country may be substantially to lessen competition, or to tend to create a monopoly, or which in any other manner would be in restraint or [sic] trade, unless it finds that the anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served. "In every case, the Board shall take into consideration the financial and managerial resources and future prospects of the company or companies and the banks concerned, and the convenience and needs of the community to be served." 70 Stat. 135, as amended, 80 Stat. 237, 12 U.S.C. § 1842(c). 3 The four individuals incurred part of this $3.7 million debt in order to buy out the shares of a former chairman and president of the bank, who had been indicted for securities fraud. See 546 F.2d 718, 723-724, n. 1 (CA7 1976) (Fairchild, C. J., dissenting from the panel opinion). The entire $3.7 million debt was secured by the bank stock they had acquired in this and previous transactions. While the proposed transaction with respondent would relieve the individual shareholders of their primary obligations under the loans, these shareholders would remain secondarily liable if respondent defaulted and its obligations exceeded the value of the bank's stock. See App. 24, 29-30, 42, 55-56. 4 The Internal Revenue Code of 1954, 26 U.S.C. § 1501, permits an affiliated group of corporations to file a consolidated income tax return. Respondent and the bank would be affiliated by virtue of respondent's ownership of at least 80% of the bank's stock. 26 U.S.C. § 1504. Filing a consolidated return would permit the group to deduct the interest on the $3.7 million debt from the bank's gross income when determining the taxable income of the consolidated entity. 26 CFR § 1.1502-11(a)(1) (1977); 26 U.S.C. § 163. The tax savings from this deduction could then be transferred to respondent as a tax-free intercorporate dividend and used to retire the acquisition debt. 26 CFR § 1.1501-14(a)(1) (1977). Although in the absence of this transaction, the individual shareholders presumably can deduct from personal income their interest payments on the debt, see 26 U.S.C. § 163, respondent contends that approval of the transaction would have saved the bank and holding company approximately $142,000 in taxes in the first year alone. Brief for Respondent 5-6, n. 2. These tax savings would have diminished as interest payments on the outstanding debt declined. 5 A company seeking to acquire a bank must submit an application to the Federal Reserve bank of the district in which the applicant is located. 12 CFR §§ 225.3(a)-(b), 262.3(b) (1978). The Reserve bank evaluates the application against the Board's standards and makes a recommendation to the Board. § 262.3(c). At the "appropriate" time, the Reserve bank forwards the application to the Board so that the Board staff can undertake an independent evaluation. Ibid. After the application is forwarded, the Board must notify the Comptroller of the Currency if a national bank is involved, or state supervisory authorities if a state bank is involved, and in most cases must allow the agency 30 days to submit a recommendation. 12 U.S.C. § 1842(b). See n. 12, infra. If the Comptroller or state supervisory authority recommends that the application be denied, the Board must notify the applicant and conduct a hearing. 12 U.S.C. § 1842(b). On the other hand, if the Comptroller or state authority recommends approval of the transaction or declines to submit a timely recommendation, several Courts of Appeals have held that the Board need not provide a hearing before making its decision, see, e. g., Kirsch v. Board of Governors, 353 F.2d 353, 356 (CA6 1965); Northwest Bancorporation v. Board of Governors, 303 F.2d 832, 842-844 (CA8 1962), though it may choose to provide one. See 12 CFR §§ 262.3(g)(2), (3) (1978). In neither case is the Board bound by the recommendation of these agencies. See Whitney Nat. Bank v. Bank of New Orleans, 379 U.S. 411, 419-420, 423, 85 S.Ct. 551, 557-558, 559, 13 L.Ed.2d 386 (1965). For a more complete explication of the Board's procedures, see P. Heller, Handbook of Federal Bank Holding Company Law 317-363 (1976). 6 The Board uses several measures of capital adequacy. One is the ratio of equity capital to total liabilities less cash on hand, known as the invested-asset ratio. Another is the ratio of total capital (debt and equity) to total assets, known as the capital-asset ratio. See Heller, supra, at 131-132; Clark, The Soundness of Financial Intermediaries, 86 Yale L.J. 1, 63 (1976). The Board regards an invested-asset ratio of 9%, see App. 52-53 (Board staff memorandum), and a capital-asset ratio of 8%, see Hearing on Problem Banks before the Senate Committee on Banking, Housing and Urban Affairs, 94th Cong., 2d Sess., 137 (1976), as the minimal levels of capital necessary to maintain financial soundness. Respondent has not specifically challenged the validity of these standards as measures of bank safety. 7 While the Board considers capital notes that are subordinated to depositors' demands to be part of a bank's overall capital, it regards them as a less desirable financial cushion than equity. See Heller, supra n. 5, at 130-131, n. 209; see, e. g., Clayton Bancshares Corp., 50 Fed.Res.Bull. 1261, 1264 (1964); Mid-Continent Bancorporation, 52 Fed.Res.Bull. 198, 200 (1966). 8 The bank's invested-asset ratio was 5.3% in 1975. The Board staff estimated that an infusion of $2.5 million in equity capital would be necessary to bring the bank up to the Board's minimum standard of 9%. The respondent's proposed addition of $1.1 million in equity and $1 million in debt would have raised the bank's invested-asset ratio to only 6.8%, $1.5 million short of the minimum 9%. The additional $2.1 million in total capital would have raised the bank's capital-asset ratio for 1975 from 5.2% to 7.4%. However, amortization of the $3.7 million acquisition debt and the $1 million in capital notes would have caused the ratio to dwindle to 5.2% by 1987, well short of the Board's 8% minimum. App. 52-54. 9 The Court of Appeals had jurisdiction to review the Board's order pursuant to 12 U.S.C. § 1848. 10 Section 329 provides that no state bank may be admitted to membership in the Federal Reserve System unless "it possesses capital stock and surplus which, in the judgment of the Board of Governors of the Federal Reserve System, are adequate in relation to the character and condition of its assets and to its existing and prospective deposit liabilities and other corporate responsibilities." 38 Stat. 259, as amended, 12 U.S.C. § 329. Section 1816 enumerates the factors to be considered in the determination whether to grant a bank federal deposit insurance coverage: "The financial history and condition of the bank, the adequacy of its capital structure, its future earnings prospects, the general character of its management, the convenience and needs of the community to be served by the bank, and whether or not its corporate powers are consistent with the purposes of this Act." 64 Stat. 876, 12 U.S.C. § 1816. 11 Respondent's argument that Congress circumscribed the role of banking factors in the Board's inquiry under § 3 by borrowing the language of the Bank Merger Act assumes that supervisory agencies applying that Act can consider such factors only as they bear upon competitive considerations. This assumption may be unwarranted. The House Report on the 1966 amendments to the Bank Merger Act is somewhat ambiguous regarding the weight that may be assigned to financial and managerial factors, but it does not appear to preclude consideration of those factors as independent bases for disapproval of a merger: "Of course, the expression of these factors in the statute would not preclude the banking agencies, charged as they are with general supervisory responsibility, from considering in any particular case such other factors as they might deem relevant. However, only the convenience and needs of the community to be served can be weighed against anticompetitive effects, with financial and managerial resources being considered only as they throw light on the capacity of the existing and proposed institutions to serve the community." H.R.Rep.No.1221, 89th Cong., 2d Sess., 4 (1966), U.S.Code Cong. & Admin.News 1966, pp. 1860, 1863. This language speaks only to the role of financial and managerial factors in determining under 12 U.S.C. § 1828(c)(5)(B) whether the anticompetitive effects of a merger outweigh its benefits to the community. In this specific determination, financial and managerial resources are relevant only as they affect the assessment of those benefits. But the House Report says nothing about a situation where, as here, the merger has no anticompetitive impact. This situation was addressed by Senator Robertson, Chairman of the Senate Committee on Banking and Currency, which was responsible for the Bank Merger Act amendments: "Of course, if there are no substantial anticompetitive effects and no tendency to create a monopoly and no suggestion of restraint of trade, the banking agency will proceed to consider the merger on the basis of the financial and managerial resources and future prospects of the existing and proposed institutions and the convenience and needs of the community to be served. The banking agency may approve the merger if it thinks the merger will be beneficial from these points of view, or it can turn the merger down if it thinks the merger undesirable or objectionable in any respects from these points of view." 112 Cong.Rec. 2656 (1966) (prepared statement). See also id., at 2457, 2460 ("[S]upervisory agencies must use the banking factors to evaluate whether or not a merger will result in a solvent and viable institution, and . . . they should not allow a merger unless this prerequisite is met") (Rep. Todd). 12 Congress has amended the Bank Holding Company Act twice since 1970, but those amendments do not affect the disposition of this case. In 1977, Congress made essentially technical refinements in the Bank Holding Company Act. These amendments permit the Board to extend further the time for a bank or a bank holding company to divest itself of bank stock acquired in the course of collecting or securing a debt. The amendments also empower the Board to dispense with the requirement that the Comptroller or state authority be given 30 days' notice before the Board acts on an application, if more rapid action is necessary to prevent the failure of the bank to be acquired. §§ 301, 302, 91 Stat. 1388-1390, amending 12 U.S.C. §§ 1842(a), (b). See H.R.Rep.No.95-774, pp. 7-8 (1977), U.S.Code Cong. & Admin.News 1977, p. 3636. In 1978, Congress strengthened the Board's regulatory powers principally by permitting the assessment of civil penalties for certain violations of the Bank Holding Company Act. § 106, 92 Stat. 3647, amending 12 U.S.C. § 1847. The 1978 amendments also authorize the Board to require a holding company to divest itself of nonbank subsidiaries whenever necessary to avoid "serious risk to the financial safety, soundness, or stability of a bank holding company subsidiary bank" or to be consistent with sound banking principles. § 105, amending 12 U.S.C. § 1844. These amendments, in particular, reflect Congress' intent to vest the Board with authority to ensure the financial soundness of bank holding companies and their subsidiaries, a purpose entirely consonant with our interpretation of the Board's authority under § 3(c). 13 See Senate Committee on Banking, Housing and Urban Affairs, Compendium of Major Issues in Bank Regulation, 94th Cong., 1st Sess., 379, 411 (Comm. Print 1975); Hearings on Financial Institutions and the Nation's Economy before the Subcommittee on Financial Institutions Supervision, Regulation and Insurance of the House Committee on Banking, Currency and Housing, 94th Cong., 1st and 2d Sess., pt. 3, p. 2403 (1976); Hearings on the Safe Banking Act of 1977 before the Subcommittee on Financial Institutions Supervision, Regulation and Insurance of the House Committee on Banking, Finance and Urban Affairs, 95th Cong., 1st Sess., pt. 3, pp. 1321, 1439 (1977). 14 See n. 12, supra. 15 The Board contends that the transaction would in fact weaken the capital position of the bank. Reply Brief for Petitioner 2 n. 2. The Court of Appeals found otherwise, relying on the Board's concession during oral argument before the original panel that operation of the bank through a holding company "might in fact be financially sounder" as a result of the tax advantage. 560 F.2d, at 263 n. 3. Because we conclude that the Board had authority to deny respondent's application regardless of whether the transaction would weaken the bank's capital position, we need express no opinion on this dispute. 16 Among these advantages are a bank holding company's ability to expand into banking-related activities with the Board's approval, 12 U.S.C. § 1843(c)(8), to avoid some state-law restrictions against branch banking, see Whitney Nat. Bank v. Bank of New Orleans, 379 U.S., at 413, 85 S.Ct., at 554, and to realize substantial tax savings. See n. 4, supra. Given the applicable state law, Ill.Const., Art. 13, § 8; Ill.Rev.Stat., ch. 161/2, § 106 (1975), and the nature of respondent's proposed transaction, only the last of these advantages afforded the Board leverage in this case. 17 The Senate Report accompanied the Financial Institutions Supervisory Act Amendments of 1977, S. 71, 95th Cong., 1st Sess. (1977). These amendments were passed by the Senate but were not brought before the House. In the next session, Congress enacted a subsequent version of these amendments as the Financial Institutions Regulatory and Interest Rate Control Act of 1978, supra, n. 12. 18 The dissent argues that because the proposed transaction would not exacerbate the financial difficulties of the bank, the Board's disapproval rests not on the effects of the transaction, but on "pre-existing or unrelated conditions." Post, at 255. In the dissent's view, the Board, by looking beyond the transaction before it, attempted to exercise the day-to-day regulatory authority over banks which Congress denied to it and conferred on the Comptroller. We disagree with the basic premise of the dissent's argument. As the Board found, the effect of this transaction would have been the formation of a financially unsound bank holding company. Thus, the Board's attempt to prevent this effect and to induce respondent to form an enterprise that met the Board's standards of financial soundness was entirely consistent with the language the dissent cites. Moreover, congressional concern with financial soundness and capital adequacy is by no means "irrelevant," post, at 257, to whether the Board's attempt exceeded its authority. 19 Section 9 of the Bank Holding Company Act, 70 Stat. 138, as amended, 12 U.S.C. § 1848, provides that "[t]he findings of the Board as to the facts, if supported by substantial evidence, shall be conclusive." 20 We also find substantial evidence to sustain the Board's determination that considerations involving the convenience and needs of the community do not support respondent's application. Indeed, the Board previously has recognized the connection between the needs of the community and the financial well-being of a bank, holding that an applicant's financial inability to resolve unforeseen problems could "impair [the bank's] overall ability to continue to serve the community as a viable banking organization." Citizens Bancorporation, Inc., 61 Fed.Res.Bull. 806 (1975); accord, Downs Bancshares, Inc., 61 Fed.Res.Bull. 673, 674 (1975). 1 "The Board assumes the stance that the tax advantage of bank holding company status is a reward which it may withhold until the applicant's financial status fulfills the Board's standard of desirability. We do not find this power or breadth of discretion in the statute." 560 F.2d 258, 262 (1977) (en banc). 2 Section 3(c) is quoted in the opinion of the Court, ante, at 236-237 n. 2. 3 It is not disputed that the last sentence in § 3(c) serves in part to explain the Board's duty to analyze a transaction's "probable effect " on the "convenience and needs of the community" and then to weigh those effects against any anticompetitive "result[s] " of the transaction. Because the statute so clearly limits the Board's consideration to effects in that endeavor, it makes little sense to read the same sentence to give the Board broader authority in analyzing the financial and managerial aspects of the transaction apart from its anticompetitive results. The Board's position is especially untenable in that the two principal concerns reflected in § 3(c) are concentration of commercial banking facilities under a single management and the combination under single control of banking and nonbanking enterprises. These concerns, neither of which is even remotely implicated by this transaction, were described in the testimony of Chairman Martin on behalf of the Board in 1955. He thought legislation was necessary because of: "(1) The unrestricted ability of a bank holding company group to add to the number of its banking units, making possible the concentration of commercial bank facilities in a particular area under a single control and management; and "(2) The combination under single control of both banking and nonbanking enterprises, permitting departure from the principle that banking institutions should not engage in business wholly unrelated to banking. Such a combination involves the lending of depositors' money, whereas other types of business enterprise, not connected with banking, do not involve this element of trusteeship." S.Rep. No. 1095, 84th Cong., 1st Sess., 2 (1955). In the Board's anomalous view, therefore, Congress has carefully confined the agency's power to carry out the two primary purposes of the legislation, while leaving it with virtually unbounded authority to effectuate the statute's secondary goal of assuring financial and managerial stability in bank holding companies. 4 Although the Board decides which banks qualify for membership in the Federal Reserve System, 12 U.S.C. § 329, its day-to-day regulatory authority extends only to state member banks that are insured by the Federal Deposit Insurance Corporation. National member banks, such as respondent, are subject to the daily control of the Comptroller of the Currency. 12 U.S.C. §§ 1813(b), (d), (h), 1818. 5 To use the Court's example, ante, at 250, if the Board is concerned with possible corruption in a national bank's management, it may not address that problem directly by way of a cease-and-desist order or other remedies. That power resides exclusively in the Comptroller. See n. 4, supra. The Board nonetheless claims the power to require a change in management before the bank can earn a reward in the form of tax savings available through holding-company ownership—even when it concludes that the change in ownership form would in no way enhance the dangers of corrupt management and would only improve the bank's overall situation. Having withheld the former power, I think it is illogical to assume without any proof at all that Congress intended to grant the latter. 6 In the text of its opinion the Court states its intention to "decide whether the Board can only exercise [its approval] authority when the transaction would cause or exacerbate the financial unsoundness of the holding company or a subsidiary bank." Ante, at 237. Later the Court purports to "hold that the Board may deny applications for holding-company status solely on grounds of financial or managerial unsoundness, regardless of whether that unsoundness would be caused or exacerbated by the proposed transaction." Ante, at 252. What purports to be a broad holding, however, is significantly qualified by n. 18 which was added in response to this dissent. In that footnote the Court limits its holding to a case in which the effect of the transaction is the formation of a financially unsound bank holding company. So limited, this case involves nothing more than a dispute over whether this particular holding company was financially unsound—a dispute that hardly merits this Court's attention. Even on this narrow ground of decision, however, I find the Court's reasoning unpersuasive. The financial soundness of the bank is surely a matter of greater public interest than the financial soundness of its parent; yet neither the Board nor the Comptroller of the Currency has asserted any basis for requiring the bank to take any remedial action. Everyone agrees that the financial strength of the bank will be improved by the formation of a holding company and that no adverse consequences will result.

78

439 U.S. 299 99 S.Ct. 540 58 L.Ed.2d 534 MARQUETTE NATIONAL BANK OF MINNEAPOLIS, Petitioner,v.FIRST OF OMAHA SERVICE CORPORATION et al. State of MINNESOTA, Petitioner, v. FIRST OF OMAHA SERVICE CORPORATION et al. Nos. 77-1265, 77-1258. Argued Oct. 31, 1978. Decided Dec. 18, 1978. Syllabus The First National Bank of Omaha (Omaha Bank) is a national banking association chartered in Nebraska; it is enrolled in the BankAmericard plan, and solicits for that plan in Minnesota. Omaha Bank charges its Minnesota cardholders interest on their unpaid balances at a rate permitted by Nebraska law, but in excess of that permitted by Minnesota law. The Marquette National Bank of Minneapolis (Marquette), a Minnesota-chartered national banking association enrolled in the BankAmericard plan, brought suit in Minnesota against Omaha Bank and its subsidiary, respondent First of Omaha Service Corp., inter alia, to enjoin the operation of Omaha Bank's BankAmericard program in Minnesota until such time as it complied with the Minnesota usury law. Rejecting respondent's contention that Minnesota's usury law was preempted by the National Bank Act provision codified as 12 U.S.C. § 85, which authorizes a national banking association "to charge on any loan" interest at the rate allowed by the laws of the State "where the bank is located," the state trial court granted Marquette's motion for partial summary judgment. The Minnesota Supreme Court reversed. Held: Section 85 permits Omaha Bank to charge its Minnesota BankAmericard customers the higher interest rate that is sanctioned by Nebraska law. Pp. 307-319. (a) As a national bank, Omaha Bank is a federal instrumentality whose interest rate for its BankAmericard program is governed by federal law, and under § 85 a national bank may charge interest "on any loan" at the rate allowed by the laws of the State where the bank is "located." P. 308. (b) Apart from its BankAmericard program, Omaha Bank is located in Nebraska, where it is chartered. P. 309. (c) Omaha Bank cannot be deprived of its Nebraska location merely because under the BankAmericard program it extends credit to residents of another State, for it is in Nebraska that credit is extended by the Bank's honoring sales drafts of Minnesota customers, unpaid-balance finance charges are assessed, payments are received, and credit cards are issued. Pp. 310-312 (d) Nor does the statutory location of the bank change because the credit cards can be used to purchase goods and services outside Nebraska. Pp. 547-548. (e) Congress in enacting the National Bank Act of 1864 intended to facilitate a "national banking system," whose interstate nature was fully recognized, and there was no intention to exempt interstate loans from the reach of the predecessor of 12 U.S.C. § 85. Pp. 313-318. (f) Though the "exportation" of interest rates, such as occurred here, may impair the ability of States to maintain effective usury laws, such impairment has always been implicit in the National Bank Act and any correction of that situation would have to be achieved legislatively. Pp. 318-319. Affirmed. Richard B. Allyn, St. Paul, Minn., for petitioner in No. 77-1258. John Troyer, Minneapolis, Minn., for petitioner in No. 77-1265. Robert H. Bork, Washington, D. C., for respondents. Mr. Justice BRENNAN delivered the opinion of the Court. 1 The question for decision is whether the National Bank Act, Rev.Stat. § 5197, as amended, 12 U.S.C. § 85,1 authorizes a national bank based in one State to charge its out-of-state credit-card customers an interest rate on unpaid balances allowed by its home State, when that rate is greater than that permitted by the State of the bank's nonresident customers. The Minnesota Supreme Court held that the bank is allowed by § 85 to charge the higher rate. Minn., 262 N.W.2d 358 (1977). We affirm. 2 * The First National Bank of Omaha (Omaha Bank) is a national banking association with its charter address in Omaha, Neb.2 Omaha Bank is a card-issuing member in the BankAmericard plan. This plan enables cardholders to purchase goods and services from participating merchants and to obtain cash advances from participating banks throughout the United States and the world. Omaha Bank has systematically sought to enroll in its BankAmericard program the residents, merchants, and banks of the nearby State of Minnesota. The solicitation of Minnesota merchants and banks is carried on by respondent First of Omaha Service Corp. (Omaha Service Corp.), a wholly owned subsidiary of Omaha Bank. 3 Minnesota residents are obligated to pay Omaha Bank interest on the outstanding balances of their BankAmericards. Nebraska law permits Omaha Bank to charge interest on the unpaid balances of cardholder accounts at a rate of 18% per year on the first $999.99, and 12% per year on amounts of $1,000 and over.3 Minnesota law, however, fixes the permissible annual interest on such accounts at 12%.4 To compensate for the reduced interest, Minnesota law permits banks to charge annual fees of up to $15 for the privilege of using a bank credit card.5 4 The instant case began when petitioner Marquette National Bank of Minneapolis (Marquette)6 itself a national banking association enrolled in the BankAmericard plan,7 brought suit in the District Court of Hennepin County, Minn., to enjoin Omaha Bank and Omaha Service Corp. from soliciting in Minnesota for Omaha Bank's BankAmericard program until such time as that program complied with Minnesota law.8 Marquette claimed to be losing customers to Omaha Bank because, unlike the Nebraska bank, Marquette was forced by the low rate of interest permissible under Minnesota law to charge a $10 annual fee for the use of its credit cards. App. 7a-15a, 45a-48a. 5 Marquette named as defendants Omaha Bank, Omaha Service Corp., which is organized under the laws of Nebraska but qualified to do business and doing business in Minnesota,9 and the Credit Bureau of St. Paul, Inc., a corporation organized under the laws of Minnesota having its principal office in St. Paul, Minn. Omaha Service Corp. participates in Omaha Bank's BankAmericard program by entering into agreements with banks and merchants necessary to the operation of the BankAmericard scheme. Id., at 30a. At the time Marquette filed its complaint, Omaha Service Corp. had not yet entered into any such agreements in Minnesota, although it intended to do so. Id., at 30a, 92a, 94a. For its services, Omaha Service Corp. receives a fee from Omaha Bank, but it does not itself extend credit or receive interest.10 Id., at 94a, 97a-110a. It was alleged that the Credit Bureau of St. Paul, Inc., solicited prospective cardholders for Omaha Bank's BankAmericard program in Minnesota. Id., at 9a, 30a. 6 The defendants sought to remove Marquette's action to Federal District Court. See 12 U.S.C. § 94.11 Marquette responded by dismissing without prejudice its action against Omaha Bank, see Fed.Rule Civ.Proc. 41(a)(1)(i), and the District Court, citing Gully v. First Nat. Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936), remanded the case to the District Court of Hennepin County. Marquette Nat. Bank v. First Nat. Bank of Omaha, 422 F.Supp. 1346 (Minn.1976). Marquette thereupon moved for partial summary judgment to have Omaha Bank's BankAmericard program declared in violation of Minnesota usury statute, Minn.Stat. § 48.185 (1978),12 and permanently to enjoin the remaining defendants from engaging in any activity in connection with the offering or operation of that program in further violation of the Minnesota law. Defendants argued that the National Bank Act, Rev.Stat. § 5197, as amended, 12 U.S.C. § 85,13 preempted Minn.Stat. § 48.185 and enforcement of that statute against Omaha Bank's BankAmericard program. Upon being notified of this challenge to Minn.Stat. § 48.185, the Attorney General of the State of Minnesota14 intervened as a party plaintiff and joined in Marquette's prayer for a declaratory judgment and permanent injunction. 7 The District Court of Hennepin County granted plaintiffs' motion for partial summary judgment, holding in an unreported opinion that "nothing contained in the National Bank Act, 12 U.S.C. § 85, precludes or preempts the application and enforcement of Minnesota Statutes, § 48.185 to the First National Bank of Omaha's BankAmericard program as solicited and operated in the State of Minnesota." App. 139a-140a. The court enjoined Omaha Service Corp., "as agent of the First National Bank of Omaha," from "engaging in any solicitation of residents of the State of Minnesota or other activity in connection with the offering or operation of a bank credit card program in the State of Minnesota in violation of Minnesota Statutes, § 48.185."15 Id., at 140a-141a. 8 On appeal, the Minnesota Supreme Court reversed. Noting that Marquette's dismissal of Omaha Bank was a procedural device that removed the case from the jurisdiction of the federal courts of the Eighth Circuit, and noting that a recent decision of the Court of Appeals for the Eighth Circuit had made it plain that in its judgment the usury laws of Nebraska rather than Minnesota should govern the operation of Omaha Bank's BankAmericard program in Minnesota, see Fisher v. First Nat. Bank of Omaha, 548 F.2d 255 (1977),16 the Minnesota Supreme Court concluded that it would be "inappropriate for this court to permit the use of procedural devices to obtain a result inconsistent with the existing doctrine in the Eighth Circuit." 262 N.W.2d, at 365.17 Plaintiffs filed timely petitions for writs of certiorari,18 which we granted, 436 U.S. 916, 98 S.Ct. 2261, 56 L.Ed.2d 757 (1978), in order to decide the appropriate application of 12 U.S.C. § 85. II 9 In the present posture of this case Omaha Bank is no longer a party defendant. The federal question presented for decision is nevertheless the application of 12 U.S.C. § 85 to the operation of Omaha Bank's BankAmericard program. There is no allegation in petitioners' complaints that either Omaha Service Corp. or the Minnesota merchants and banks participating in the BankAmericard program are themselves extending credit in violation of Minn.Stat. § 48.185 (1978), and we therefore have no occasion to determine the application of the National Bank Act in such a case. 10 Omaha Bank is a national bank; it is an "instrumentalit[y] of the federal government, created for a public purpose, and as such necessarily subject to the paramount authority of the United States." Davis v. Elmira Savings Bank, 161 U.S. 275, 283, 16 S.Ct. 502, 503, 40 L.Ed. 700 (1896). The interest rate that Omaha Bank may charge in its BankAmericard program is thus governed by federal law. See Farmers' & Mechanics' Nat. Bank v. Dearing, 91 U.S. 29, 34, 23 L.Ed. 196 (1875). The provision of § 85 called into question states: 11 "Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, . . . and no more, except that where by the laws of any State a different rate is limited for banks organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State under this chapter." (Emphasis supplied.) 12 Section 85 thus plainly provides that a national bank may charge interest "on any loan" at the rate allowed by the laws of the State in which the bank is "located." The question before us is therefore narrowed to whether Omaha Bank and its BankAmericard program are "located" in Nebraska and for that reason entitled to charge its Minnesota customers the rate of interest authorized by Nebraska law.19 13 There is no question but that Omaha Bank itself, apart from its BankAmericard program, is located in Nebraska. Petitioners concede as much. See Brief for Petitioner in No. 77-1258, p. 3; Brief for Petitioner in No. 77-1265, pp. 3, 16, 33-34. The National Bank Act requires a national bank to state in its organization certificate "[t]he place where its operations of discount and deposit are to be carried on, designating the State, Territory, or district, and the particular county and city, town, or village." Rev.Stat. § 5134, 12 U.S.C. § 22. The charter address of Omaha Bank is in Omaha, Douglas County, Neb. The bank operates no branch banks in Minnesota, cf. Seattle Trust & Savings Bank v. Bank of California, 492 F.2d 48 (CA9 1974), nor apparently could it under federal law.20 See 12 U.S.C. § 36(c).21 14 The State of Minnesota, however, contends that this conclusion must be altered if Omaha Bank's BankAmericard program is considered: "In the context of a national bank which systematically solicits Minnesota residents for credit cards to be used in transactions with Minnesota merchants the bank must be deemed to be 'located' in Minnesota for purposes of this credit card program." Reply Brief for Petitioner in No. 77-1258, p. 7. 15 We disagree. Section 85 was originally enacted as § 30 of the National Bank Act of 1864,22 13 Stat. 108.23 The congressional debates surrounding the enactment of § 30 were conducted on the assumption that a national bank was "located" for purposes of the section in the State named in its organization certificate. See Cong.Globe, 38th Cong., 1st Sess., 2123-2127 (1864). Omaha Bank cannot be deprived of this location merely because it is extending credit to residents of a foreign State. Minnesota residents were always free to visit Nebraska and receive loans in that State. It has not been suggested that Minnesota usury laws would apply to such transactions. Although the convenience of modern mail permits Minnesota residents holding Omaha Bank's BankAmericards to receive loans without visiting Nebraska, credit on the use of their cards is nevertheless similarly extended by Omaha Bank in Nebraska by the bank's honoring of the sales drafts of participating Minnesota merchants and banks.24 Finance charges on the unpaid balances of cardholders are assessed by the bank in Omaha, Neb., and all payments on unpaid balances are remitted to the bank in Omaha, Neb. Furthermore, the bank issues its BankAmericards in Omaha, Neb., after credit assessments made by the bank in that city. App. 30a. 16 Nor can the fact that Omaha Bank's BankAmericards are used "in transactions with Minnesota merchants" be determinative of the bank's location for purposes of § 85. The bank's BankAmericard enables its holder "to purchase goods and services from participating merchants and obtain cash advances from participating banks throughout the United States and the world." Stipulation of Facts, App. 91a. Minnesota residents can thus use their Omaha Bank BankAmericards to purchase services in the State of New York or mail-order goods from the State of Michigan. If the location of the bank were to depend on the whereabouts of each credit-card transaction, the meaning of the term "located" would be so stretched as to throw into confusion the complex system of modern interstate banking. A national bank could never be certain whether its contacts with residents of foreign States were sufficient to alter its location for purposes of § 85. We do not choose to invite these difficulties by rendering so elastic the term "located." The mere fact that Omaha Bank has enrolled Minnesota residents, merchants, and banks in its BankAmericard program thus does not suffice to "locate" that bank in Minnesota for purposes of 12 U.S.C. § 85.25 See Second Nat. Bank of Leavenworth v. Smoot, 9 D.C. 371, 373 (1876). III 17 Since Omaha Bank and its BankAmericard program are "located" in Nebraska, the plain language of § 85 provides that the bank may charge "on any loan" the rate "allowed" by the State of Nebraska. Petitioners contend, however, that this reading of the statute violates the basic legislative intent of the National Bank Act. See Train v. Colorado Public Interest Research Group, 426 U.S. 1, 9-10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976). At the time Congress enacted § 30 of the National Bank Act of 1864, 13 Stat. 108, so petitioners' argument runs, it intended "to insure competitive equality between state and national banks in the charging of interest." Brief for Petitioner in No. 77-1265, p. 24. This policy could best be effectuated by limiting national banks to the rate of interest allowed by the States in which the banks were located. Since Congress in 1864 was addressing a financial system in which incorporated banks were "local institutions," it did not "contemplate a national bank soliciting customers and entering loan agreements outside of the state in which it was established." Brief for Petitioner in No. 77-1258, p. 17. Therefore to interpret § 85 to apply to interstate loans such as those involved in this case would not only enlarge impermissibly the original intent of Congress, but would also undercut the basic policy foundations of the statute by upsetting the competitive equality now existing between state and national banks. 18 We cannot accept petitioners' argument. Whatever policy of "competitive equality" has been discerned in other sections of the National Bank Act, see, e. g., First Nat. Bank v. Dickinson, 396 U.S. 122, 131, 90 S.Ct. 337, 342, 24 L.Ed.2d 312 (1969); First Nat. Bank of Logan v. Walker Bank & Trust Co., 385 U.S. 252, 261-262, 87 S.Ct. 492, 497, 17 L.Ed.2d 343 (1966), § 30 and its descendants have been interpreted for over a century to give "advantages to National banks over their State competitors." Tiffany v. National Bank of Missouri, 18 Wall. 409, 413, 21 L.Ed. 862 (1874). "National banks," it was said in Tiffany, "have been National favorites."26 The policy of competitive equality between state and national banks, however, is not truly at the core of this case. Instead, we are confronted by the inequalities that occur when a national bank applies the interest rates of its home State in its dealing with residents of a foreign State. These inequalities affect both national and state banks in the foreign State. Indeed, in the instant case Marquette is a national bank claiming to be injured by the unequal interest rates charged by another national bank.27 Whether the inequalities which thus occur when the interest rates of one State are "exported" into another violate the intent of Congress in enacting § 30 in part depends on whether Congress in 1864 was aware of the existence of a system of interstate banking in which such inequalities would seem a necessary part. 19 Close examination of the National Bank Act of 1864, its legislative history, and its historical context makes clear that, contrary to the suggestion of petitioners, Congress intended to facilitate what Representative Hooper28 termed a "national banking system." Cong.Globe, 38th Cong., 1st Sess., 1451 (1864). See also Report of the Comptroller of the Currency 4 (1864). Section 31 of the Act, for example, fully recognized the interstate nature of American banking by providing that three-fifths of the 15% of the aggregate amount of their notes in circulation that national banks were required to "have on hand, in lawful money" could 20 "consist of balances due to an association available for the redemption of its circulating notes from associations approved by the comptroller of the currency, organized under this act, in the cities of Saint Louis, Louisville, Chicago, Detroit, Milwaukie [sic ], New Orleans, Cincinnati, Cleveland, Pittsburg, Baltimore, Philadelphia, Boston, New York, Albany, Leavenworth, San Francisco, and Washington City." 13 Stat. 108, 109.29 21 The debates surrounding the enactment of this section portray a banking system of great regional interdependence. Senator Chandler of Michigan, for example, noted: 22 "[T]he banking business of the Northwest is done upon bills of exchange. The wool clip of Michigan, the wheat crop of Michigan, the hog crop of Iowa, are all purchased with drafts drawn chiefly upon [New York, Philadelphia, and Boston]. The wool clip is chiefly bought by drafts upon Boston. I put in the three cities because it is convenient to the customer, to the broker, to the merchant, to be enabled to purchase a draft upon either one of these three places." Cong.Globe, 38th Cong., 1st Sess., 2144 (1864).30 23 See also id., at 1343, 1376, 2143-2145, 2152, 2181-2182. Similarly, the debates surrounding the enactment of § 41 of the Act, which provided that the shares of a national bank could be taxed as personal property "in the assessment of taxes imposed by or under state authority at the place where such bank is located, and not elsewhere," 13 Stat. 112, demonstrated a sensitive awareness of the possibilities of interstate ownership and control of national banks. See, e. g., Cong.Globe, 38th Cong., 1st Sess., 1271, 1898-1899 (1864). 24 Although in the debates surrounding the enactment of § 30 there is no specific discussion of the impact of interstate loans, these debates occurred in the context of a developed interstate loan market. As early as 1839 this Court had occasion to note: "Money is frequently borrowed in one state, by a corporation created in another. The numerous banks established by different states are in the constant habit of contracting and dealing with one another. . . . These usages of commerce and trade have been so general and public, and have been practiced for so long a period of time, and so generally acquiesced in by the states, that the Court cannot overlook them . . . ." Bank of Augusta v. Earle, 13 Pet. 519, 590-591, 10 L.Ed. 274 (1839). Examples of this interstate loan market have been noted by historians of American banking. See, e. g., 1 F. Redlich, The Molding of American Banking 49 (1968); 1 F. James, The Growth of Chicago Banks 546 (1938); Breckenridge, Discount Rates in the United States, 13 Pol.Sci.Q. 119, 136-138 (1898). Evidence of this market is to be found in the numerous judicial decisions in cases arising out of interstate loan transactions. See, e. g., Woodcock v. Campbell, 2 Port. 456 (Ala.1835); Clarke v. Bank of Mississippi, 10 Ark. 516 (1850); Planters Bank v. Bass, 2 La.Ann. 430 (1847); Knox v. Bank of United States, 27 Miss. 65 (1854); Bard v. Poole, 12 N.Y. 495 (1855); Curtis v. Leavitt, 15 N.Y. 9 (1857). After passage of the National Bank Act of 1864, cases involving interstate loans begin to appear with some frequency in federal courts. See, e. g., In re Wild, 28 Fed.Cas. page 1211, No.17,645 (S.D.N.Y.1873); Cadle v. Tracy, 4 Fed.Cas. page 967, No.2,279 (S.D.N.Y.1873); Farmers' Nat. Bank v. McElhinney, 42 F. 801 (S.D.Iowa 1890); Second Nat. Bank of Leavenworth v. Smoot, 9 D.C. 371 (1876). 25 We cannot assume that Congress was oblivious to the existence of such common commercial transactions. We find it implausible to conclude, therefore, that Congress meant through its silence to exempt interstate loans from the reach of § 30. We would certainly be exceedingly reluctant to read such a hiatus into the regulatory scheme of § 30 in the absence of evidence of specific congressional intent. Petitioners have adduced no such evidence. 26 Petitioners' final argument is that the "exportation" of interest rates, such as occurred in this case, will significantly impair the ability of States to enact effective usury laws. This impairment, however, has always been implicit in the structure of the National Bank Act, since citizens of one State were free to visit a neighboring State to receive credit at foreign interest rates.31 Cf. Cong.Globe, 38th Cong., 1st Sess., 2123 (1864). This impairment may in fact be accentuated by the ease with which interstate credit is available by mail through the use of modern credit cards. But the protection of state usury laws is an issue of legislative policy, and any plea to alter § 85 to further that end is better addressed to the wisdom of Congress than to the judgment of this Court. 27 Affirmed. 1 Section 85 states in pertinent part: "Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, or at a rate of 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal reserve bank in the Federal Reserve district where the bank is located, or in the case of business or agricultural loans in the amount of $25,000 or more, at a rate of 5 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal Reserve bank in the Federal Reserve district where the bank is located, whichever may be the greater, and no more, except that where by the laws of any State a different rate is limited for banks organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State under this chapter." See §§ 201, 206 of Pub.L. 93-501, 88 Stat. 1558, 1560. 2 The National Bank Act, Rev.Stat. § 5134, 12 U.S.C. § 22, provides that a national bank must create an "organization certificate" which specifically states "[t]he place where its operations of discount and deposit are to be carried on, designating the State, Territory, or District, and the particular county and city, town, or village." 3 See Neb.Rev.Stat. §§ 8-815 to 8-823, 8-825 to 8-829 (1974). Omaha Bank assesses a finance charge on the daily outstanding balance of cash advances and on the entire previous balance of purchases of goods or services before deducting any payments made during the billing cycle. No finance charges are imposed, however, on the purchases portion of the account balance when the previous month's total balance is paid in full on or before the due date shown on the monthly statement. See Stipulation of Facts, App. 93a-94a. 4 Minnesota Stat. § 48.185 (1978) provides in pertinent part: "Subdivision 1. Any bank organized under the laws of this state, any national banking association doing business in this state, and any savings bank organized and operated pursuant to Chapter 50, may extend credit through an open end loan account arrangement with a debtor, pursuant to which the debtor may obtain loans from time to time by cash advances, purchase or satisfaction of the obligations of the debtor incurred pursuant to a credit card plan, or otherwise under a credit card or overdraft checking plan. * * * * * "Subd. 3. A bank or savings bank may collect a periodic rate of finance charge in connection with extensions of credit pursuant to this section, which rate does not exceed one percent per month computed on an amount no greater than the average daily balance of the account during each monthly billing cycle. If the billing cycle is other than monthly, the maximum finance charge for that billing cycle shall be that percentage which bears the same relation to one percent as the number of days in the billing cycle bears to 30. "Subd. 4. No charges other than those provided for in subdivision 3 shall be made directly or indirectly for any credit extended under the authority of this section, except that there may be charged to the debtor: "(a) Annual charges, not to exceed $15 per annum, payable in advance, for the privilege of using a bank credit card which entitled the debtor to purchase goods or services from merchants, under an arrangement pursuant to which the debts resulting from the purchases are paid or satisfied by the bank or savings bank and charged to the debtor's open end loan account with the bank or savings bank . . . . "Subd. 5. If the balance in a revolving loan account under a credit card plan is attributable solely to purchases of goods or services charged to the account during one billing cycle, and the account is paid in full before the due date of the first statement issued after the end of that billing cycle, no finance charge shall be charged on that balance. "Subd. 6. This section shall apply to all open end credit transactions of a bank or savings bank in extending credit under an open end loan account or other open end credit arrangement to persons who are residents of this state, if the bank or savings bank induces such persons to enter into such arrangements by a continuous and systematic solicitation either personally or by an agent or by mail, and retail merchants and banks or savings banks within this state are contractually bound to honor credit cards issued by the bank or savings bank, and the goods, services and loans are delivered or furnished in this state and payment is made from this state. A term of a writing or credit card device executed or signed by a person to evidence an open end credit arrangement specifying: "(a) that the law of another state shall apply; "(b) that the person consents to the jurisdiction of another state; and "(c) which fixes venue; "is invalid with respect to open end credit transactions to which this section applies. An open end credit arrangement made in another state with a person who was a resident of that state when the open end credit arrangement was made is valid and enforceable in this state according to 5 See Minn.Stat. § 48.185(4)(a), supra (1978), n. 4. its terms to the extent that it is valid and enforceable under the laws of the state applicable to the transaction. "Subd. 7. Any bank or savings bank extending credit in compliance with the provisions of this section, which is injured competitively by violations of this section by another bank or savings bank, may institute a civil action in the district court of this state against that bank or savings bank for an injunction prohibiting any violation of this section. The court, upon proper proof that the defendant has engaged in any practice in violation of this section, may enjoin the future commission of that practice. Proof of monetary damage or loss of profits shall not be required. . . . The relief provided in this subdivision is in addition to remedies otherwise available against the same conduct under the common law or statutes of this state." 6 Marquette is petitioner in No. 77-1265. 7 The principal banking offices of Marquette are located in the County of Hennepin in the State of Minnesota. See n. 2, supra. 8 Marquette also asked for compensatory and punitive damages. App., at 16a. 9 The principal offices of Omaha Service Corp. are located in Omaha, Neb. 10 Omaha Service Corp. does, however, accept assignments of delinquent accounts from Omaha Bank and, as an incident to collecting these accounts, does collect interest. Id., at 94a. 11 The venue provision of the National Bank Act, Rev.Stat. § 5198, 12 U.S.C. § 94, states: "Suits, actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases." 12 See n. 4, supra. 13 See n. 1, supra. 14 The State of Minnesota is petitioner in No. 77-1258. 15 Defendant Credit Bureau of St. Paul, Inc., was not named as an addressee of the injunction, and it is not before this Court. 16 In its opinion the Eighth Circuit relied upon the decision of the Court of Appeals for the Seventh Circuit in Fisher v. First Nat. Bank of Chicago, 538 F.2d 1284 (1976). 17 The Supreme Court of Iowa has since reached a contrary conclusion. See Iowa ex rel. Turner v. First of Omaha Service Corp., 269 N.W.2d 409 (1978), appeal docketed, No. 78-846. 18 We reject respondent's argument that the petitions are untimely. The opinion of the Minnesota Supreme Court was filed on November 10, 1977. Petitioners filed a timely petition for rehearing, which, under Minnesota law, defers the entry of judgment until after the disposition of the petition. See Minn.Rules Civ.App.Proc. 136.02, 140. The petition for rehearing was denied on December 8, 1977; judgment was entered on December 14, 1977, by way of a separate document stating that "the order and judgment of the Court below, herein appealed from, . . . be and the same hereby is in all things reversed." App. H to Pet. for Cert. in No. 77-1265. Petitions for certiorari were filed in this Court on March 13, 1978, within the 90 days "after the entry of such judgment or decree" allotted by 28 U.S.C. § 2101(c). See Puget Sound Power & Light Co. v. King County, 264 U.S. 22, 24-25, 44 S.Ct. 261, 262, 68 L.Ed. 541 (1924); Commissioner v. Estate of Bedford, 325 U.S. 283, 284-288, 65 S.Ct. 1157, 1158-1159, 89 L.Ed. 1611 (1945). 19 We have no occasion in this case to parse the meaning of the phrase in § 85 "associations organized or existing in any such State . . . ." (Emphasis added.) This phrase occurs in the "except" clause of § 85, which, at least since Tiffany v. National Bank of Missouri, 18 Wall. 409, 21 L.Ed. 862 (1874), has been interpreted as an "enabling" clause. "If there is a rate of interest fixed by State laws for lenders generally, the banks are allowed to charge that rate, but no more, except that if State banks of issue are allowed to reserve more, the same privilege is allowed to National banking associations." Id., at 411. Since there is in this case no allegation or proof that Minnesota state banks are "allowed to reserve more" than the rate of interest "for lenders generally," we need not determine the relationship of the phrase "organized or existing" to the term "located." 20 There is no contention that Omaha Bank could qualify to operate a branch bank in Minnesota under the grandfather provisions of 12 U.S.C. § 36(a). Although Nebraska law prohibits branch banking, it permits the establishment of not more than two "detached auxiliary teller offices" which must be maintained "within the corporate limits of the city in which such bank is located." Neb.Rev.Stat. §§ 8-157(1) and (2) (1977). Nebraska also permits banks to operate manned or unmanned "electronic satellite facilities." § 8-157(3). There is no contention in this case that Omaha Bank operates such facilities in the State of Minnesota. 21 Last Term Citizens & Southern Nat. Bank v. Bougas, 434 U.S. 35, 98 S.Ct. 88, 54 L.Ed.2d 218 (1977), held that, with respect to the venue provision of the National Bank Act, 12 U.S.C. § 94, supra, n. 11, a national bank is "located" either in the place designated in its "organization certificate," 12 U.S.C. § 22, supra, n. 2, or in the places in which it has established authorized branches. Omaha Bank is thus also "located" in Nebraska for purposes of 12 U.S.C. § 94. 22 Although the Act of June 3, 1864, ch. 106, 13 Stat. 99, was originally entitled "An Act to Provide a National Currency . . .," its title was altered by Congress in 1874 to "the national-bank act." Ch. 343, 18 Stat. 123. 23 Section 30 was, in its pertinent parts, virtually identical with the current § 85. Section 30 stated: "[E]very association may take, receive, reserve, and charge on any loan or discount made, or upon any note, bill of exchange, or other evidences of debt, interest at the rate allowed by the laws of the state or territory where the bank is located, and no more, except that where by the laws of any state a different rate is limited for banks of issue organized under state laws, the rate so limited shall be allowed for associations organized in any such state under this act." Section 30 was preceded by § 46 of the National Currency Act of 1863, 12 Stat. 678, which provided: "[E]very association may take, reserve, receive, and charge on any loan, or discount made, or upon any note, bill of exchange, or other evidence of debt, such rate of interest or discount as is for the time the established rate of interest for delay in the payment of money, in the absence of contract between the parties, by the laws of the several States in which the associations are respectively located, and no more . . . ." 24 Once again, there is no allegation in these cases that either Omaha Service Corporation or any of the Minnesota merchants or banks participating in Omaha Bank's BankAmericard program are themselves extending credit in violation of Minn.Stat. § 48.185 (1978). In their stipulation of facts, the parties describe the operation of the BankAmericard program as follows: * * * * * "III * * * * * "While participating Minnesota banks will not have the authority to issue cards or extend credit directly in connection with BankAmericard transactions, they will advertise the BankAmericard plan and solicit applications for BankAmericards from Minnesota residents which are then forwarded to First National Bank of Omaha for acceptance or rejection, and they will serve as a depository for BankAmericard sales drafts deposited by participating merchants with whom defendant First of Omaha Service Corporation has member agreements. * * * * * "V "Minnesota cardholders wishing to purchase goods and services or obtain cash advances with a BankAmericard issued by the First National Bank of Omaha, sign a BankAmericard form evidencing the transaction which is authenticated by the cardholder's BankAmericard credit card, and exchange the signed form for goods or services or cash from a participating Minnesota merchant or bank, respectively. The sales draft forms are then deposited by the participating Minnesota merchant in his account with a participating Minnesota bank for credit, which will then forward them and cash advance drafts drawn on such bank to the First National Bank of Omaha for credit. "VI "The First National Bank of Omaha renders periodic statements to its Minnesota cardholders and charges finance charges on the unpaid balance of the cardholder's account. . . . Payments of account balances are remitted by Minnesota residents directly to the First National Bank of Omaha. "VII "The defendant First of Omaha Service Corporation and participating Minnesota banks are or will be paid a fee for their services rendered to the First National Bank of Omaha. Defendant First of Omaha Service Corporation and the participating Minnesota banks do not directly receive interest. However, the First of Omaha Service Corporation does accept assignments of delinquent accounts from the First National Bank of Omaha, and as an incident to collecting these accounts, does collect interest." App. 92a-94a. 25 Similarly, the mere fact that a national bank "transacts business" or even violates the Securities Exchange Act of 1934 in a State other than that of its "organization certificate," see n. 2, supra, does not suffice to locate the bank in the foreign State for purposes of venue under the National Bank Act, 12 U.S.C. § 94, supra, n. 11. Radzanower v. Touche Ross & Co., 426 U.S. 148, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976). See Bank of America v. Whitney Central Nat. Bank, 261 U.S. 171, 43 S.Ct. 311, 67 L.Ed. 594 (1923); cf. Cope v. Anderson, 331 U.S. 461, 467, 67 S.Ct. 1340, 1343, 91 L.Ed. 1602 (1947). 26 The "most favored lender" status for national banks under Tiffany has since been incorporated into the regulations of the Comptroller of the Currency. See 12 CFR § 7.7310(a) (1978). 27 We accept for purposes of argument Marquette's premise that it is injured competitively because Omaha Bank can charge higher prices for the use of its money. 28 Representative Hooper reported the bill that was to become the National Bank Act of 1864 to the House from the Ways and Means Committee. See Million, The Debate on the National Bank Act of 1863, 2 J.Pol.Econ. 251, 279 (1894). 29 Section 31 also provided: "[T]he cities of Charleston and Richmond may be added to the list of cities in the national associations of which other associations may keep three fifths of their lawful money, whenever, in the opinion of the comptroller of the currency, the condition of the southern states will warrant it." 13 Stat. 109. See also § 32 of the National Bank Act of 1864, 13 Stat. 109. Senator Sherman, sponsor of the Act in the Senate, described in the following terms the purpose of § 31: "The first important provision of this bill is, that it provides centers of redemption. Under the old bill, a bank was not bound to redeem its issues except at its own counter. If it failed to redeem there, then provision was made for winding it up. Under the present bill, certain cities of the United States are designated where the banks are required to redeem their issues. Each bank is to redeem its issue at its center of redemption as prescribed by the Comptroller of the Currency. The cities named are the principal cities along the Atlantic coast, Cincinnati, Louisville, Chicago, Detroit, and two or three other places. That will strengthen the system very much by relieving the noteholder from the trouble of going from any part of the United States to a remote village or city, and there demanding redemption at the counter of the bank." Cong.Globe, 38th Cong., 1st Sess., 1865 (1864). 30 Senator Chandler was proposing an amendment to the provision of § 31 which required every national bank located in the enumerated cities to "have on hand, in lawful money of the United States, an amount equal to at least twenty-five per centum of the aggregate amount of its notes in circulation and its deposits." 13 Stat. 108. The amendment read: "And one half of said twenty-five per cent. in banks organized under this act in the cities of St. Louis, Louisville, Chicago, Detroit, Milwaukee, Cincinnati, Cleveland, Pittsburg, and Portland may consist of balances due to the association available for the redemption of its circulating notes, from an association in the cities of New York, Boston, or Philadelphia." Cong.Globe, 38th Cong., 1st Sess., 2143 (1864). 31 When the National Bank Act of 1864 originally passed the House, it imposed a uniform maximum rate of interest of 7% on all national banks. See Cong.Globe, 38th Cong., 1st Sess., 1866 (1864) (remarks of Sen. Sherman); J. Knox, A History of Banking in the United States 238-239, 248, 255-256 (1903, 1969 reprint). Such a provision, of course, would have eliminated interstate inequalities among national banks resulting from differing state usury rates. The present § 85 provides that national banks may charge interest "at the rate allowed by the laws of the State . . . where the bank is located, or at a rate of 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal reserve bank in the Federal reserve district where the bank is located, or in the case of business or agricultural loans in the amount of $25,000 or more, at a rate of 5 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal Reserve bank in the Federal Reserve district where the bank is located, whichever may be the greater, and no more . . . ." See §§ 201, 206 of Pub.L. 93-501, 88 Stat. 1558, 1560. To the extent the enumerated federal rates of interest are greater than permissible state rates, state usury laws must, of course, give way to the federal statute.

78

439 U.S. 282 99 S.Ct. 530 58 L.Ed.2d 521 State of MICHIGAN, Petitioner,v.Harold William DORAN. No. 77-1202. Argued Oct. 4, 1978. Decided Dec. 18, 1978. Syllabus After respondent had been arrested in Michigan and charged with receiving and concealing stolen property (a truck driven from Arizona) and Michigan had notified Arizona authorities, Arizona charged respondent with theft, and an Arizona Justice of the Peace issued an arrest warrant reciting, in accordance with Arizona law, that there was "reasonable cause" to believe that respondent had committed the offense. Thereafter, the Governor of Arizona issued a requisition for respondent's extradition accompanied by the arrest warrant, supporting affidavits, and the original complaint; the Governor of Michigan issued an arrest warrant and ordered extradition. Upon being arraigned on the Michigan warrant, respondent petitioned for a writ of habeas corpus, alleging that the extradition warrant was invalid because it did not comply with the Uniform Criminal Extradition Act in effect in Michigan, and the petition was denied. The Michigan Supreme Court reversed the denial of habeas relief and ordered respondent's release on the ground that Arizona had failed to show a factual basis for its finding of probable cause to support its charge, the Arizona judicial finding of "reasonable cause" and the other supporting documents being found deficient in this respect. Held: Once the Governor of the asylum State has acted on a requisition for extradition based on the demanding State's judicial determination that probable cause existed, no further judicial inquiry may be had on that issue in the asylum State. Pp. 286-290. (a) Interstate extradition was intended to be a summary and mandatory executive proceeding derived from the language of the Extradition Clause of the United States Constitution, which requires that a fugitive from justice found in another State be delivered to the State from which he fled on demand of that State's executive authority, and that Clause never contemplated that the asylum State was to conduct the kind of preliminary inquiry traditionally intervening between the initial arrest and trial. P. 288. (b) The courts of an asylum State are bound by the Extradition Clause, the implementing federal statute, 18 U.S.C. § 3182, and, where adopted, the Uniform Criminal Extradition Act. Once the asylum State's Governor has granted extradition, such grant being prima facie evidence that the constitutional and statutory requirements have been met, a court of that State considering release on habeas corpus can do no more than decide whether the extradition documents on their face are in order, whether the petitioner has been charged with a crime in the demanding State, whether he is the person named in the extradition request, and whether he is a fugitive. Pp. 288-289. (c) The Michigan Supreme Court's holding that the Arizona judicial finding of "reasonable cause" was deficient finds no support in the record read in the light of the Extradition Clause and Arizona law and overlooks the "conclusory language" in which criminal charges are ordinarily cast. Pp. 289-290. 401 Mich. 235, 258 N.W.2d 406, reversed and remanded. Robert A. Derengoski, Lansing, Mich., for petitioner. Kathleen M. Cummins, Detroit, Mich., for respondent. Mr. Chief Justice BURGER delivered the opinion of the Court. 1 We granted certiorari to determine whether the courts of an asylum state may nullify the executive grant of extradition on the ground that the demanding state failed to show a factual basis for its charge supported by probable cause. 435 U.S. 967, 98 S.Ct. 1604, 56 L.Ed.2d 58 (1978). 2 (1) 3 On December 18, 1975, Doran was arrested in Michigan and charged with receiving and concealing stolen property. Mich.Comp.Laws § 750.535 (1970). The charge rested on Doran's possession of a stolen truck bearing California license plates, which he had driven from Arizona. Michigan notified Arizona authorities of Doran's arrest and sent them a photograph of Doran taken on the day of his arrest. On January 7, 1976, a sworn complaint was filed with an Arizona Justice of the Peace, charging Doran with the theft of the described motor vehicle, Ariz.Rev.Stat.Ann. §§ 13-661 to 13-663, 13-672(A) (Supp.1957-1977), or, alternatively, with theft by embezzlement, § 13-682 (Supp.1957-1977). The Justice of the Peace issued an arrest warrant which stated that she had found "reasonable cause to believe that such offense(s) were committed and that [Doran] committed them . . . ." 4 While the Michigan charges were pending, Doran was arraigned in Michigan on January 12 as a fugitive. A magistrate extended Doran's detention as a fugitive to provide time to receive the expected request for extradition from Arizona.1 On February 11 the Governor of Arizona issued a requisition for extradition. Attached to the requisition were the arrest warrant, two supporting affidavits, and the original complaint on which the charge was based. The Governor of Michigan issued a warrant for Doran's arrest and his extradition was ordered. 5 Doran was arraigned on the Michigan warrant on March 29. He then petitioned the arraigning court for a writ of habeas corpus, contending that the extradition warrant was invalid because it did not comply with the Uniform Criminal Extradition Act. Mich.Comp.Laws §§ 780.1 to 780.31 (1970). Cf. Ariz.Rev.Stat.Ann. §§ 13-1301 to 13-1328 (Supp.1957-1977). The court twice denied a writ of habeas corpus; the Michigan Court of Appeals denied an application for leave to appeal and dismissed Doran's complaint for habeas corpus. People v. Doran, Nos. 28507 (May 4, 1976) and 30516 (Nov. 22, 1976). The Michigan Supreme Court, however, granted leave to appeal the denial of the first habeas corpus petition. People v. Doran, 397 Mich. 886 (1976). On review, the court reversed the trial court's order and mandated Doran's immediate release. In re Doran, 401 Mich. 235, 258 N.W.2d 406, rehearing denied, 402 Mich. 951 (1977).2 6 (2) 7 The Michigan Supreme Court reasoned that because a significant impairment of liberty occurred whenever a person was arrested in one state and extradited to another that impairment must be preceded by a showing of probable cause to believe that the fugitive had committed a crime. In addition to relying on Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975),3 the court found support for its conclusion in § 3 of the Uniform Criminal Extradition Act, Mich.Comp.Laws § 780.3 (1970), which requires that an affidavit must "substantially charge"4 the fugitive with having committed a crime under the law of the demanding state. That court construed "substantially charge" to mean there must be a showing of probable cause. 8 The essence of the holding of the Supreme Court of Michigan is that the courts of an asylum state may review the action of the governor and in that process re-examine the factual basis for the finding of probable cause which accompanies the requisition from the demanding state.5 The court concluded: 9 "In the case at bar, there is no indictment or document reflecting a prior judicial determination of probable cause. The Arizona complaint and arrest warrant are both phrased in conclusory language which simply mirrors the language of the pertinent Arizona statutes. More importantly, the two supporting affidavits fail to set out facts which could justify a Fourth Amendment finding of probable cause for charging [Doran] with a crime." 401 Mich., at 240-242, 258 N.W.2d, at 408-409 (footnotes omitted). 10 The Michigan court assumed that arrest warrants could be issued in Arizona without a preliminary showing of probable cause since this was said to happen often in Michigan. In that court's view, neither the complaint which generated the Arizona charge, the affidavits in support of the Arizona arrest warrant, nor the recitals of the Arizona judicial officer set out sufficient facts to show probable cause. We disagree and we reverse. 11 (3) 12 We turn to the question of the power of the courts of an asylum state to review the finding of probable cause made by a judicial officer in the demanding state. Article IV, § 2, cl. 2, of the United States Constitution on the subject of extradition is clear and explicit: 13 "A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime." 14 To implement this provision of the Constitution, see Innes v. Tobin, 240 U.S. 127, 131, 36 S.Ct. 290, 291, 60 L.Ed. 562 (1916); Prigg v. Pennsylvania, 16 Pet. 539, 617, 10 L.Ed. 1060 (1842), Congress has provided: 15 "Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear." 18 U.S.C. § 3182 (emphasis added).6 16 The Extradition Clause was intended to enable each state to bring offenders to trial as swiftly as possible in the state where the alleged offense was committed. Biddinger v. Commissioner of Police, 245 U.S. 128, 132-133, 38 S.Ct. 41, 42, 62 L.Ed. 193 (1917); Appleyard v. Massachusetts, 203 U.S. 222, 227, 27 S.Ct. 122, 123, 51 L.Ed. 161 (1906). The purpose of the Clause was to preclude any state from becoming a sanctuary for fugitives from justice of another state and thus "balkanize" the administration of criminal justice among the several states. It articulated, in mandatory language, the concepts of comity and full faith and credit, found in the immediately preceding clause of Art. IV. The Extradition Clause, like the Commerce Clause served important national objectives of a newly developing country striving to foster national unity. Compare Biddinger, supra, with McLeod v. Dilworth Co., 322 U.S. 327, 330, 64 S.Ct. 1023, 1025, 88 L.Ed. 1304 (1944). In the administration of justice, no less than in trade and commerce, national unity was thought to be served by de-emphasizing state lines for certain purposes, without impinging on essential state autonomy. 17 Interstate extradition was intended to be a summary and mandatory executive proceeding derived from the language of Art. IV, § 2, cl. 2, of the Constitution. Biddinger, supra, 245 U.S. at 132, 38 S.Ct. at 42; In re Strauss, 197 U.S. 324, 332, 25 S.Ct. 535, 537, 49 L.Ed. 774 (1905); R. Hurd, A Treatise on the Right of Personal Liberty and the Writ of Habeas Corpus 598 (1858). The Clause never contemplated that the asylum state was to conduct the kind of preliminary inquiry traditionally intervening between the initial arrest and trial. 18 Near the turn of the century this Court, after acknowledging the possibility that persons may give false information to the police or prosecutors and that a prosecuting attorney may act "either wantonly or ignorantly," concluded: 19 "While courts will always endeavor to see that no such attempted wrong is successful, on the other hand, care must be taken that the process of extradition be not so burdened as to make it practically valueless. It is but one step in securing the presence of the defendant in the court in which he may be tried, and in no manner determines the question of guilt." In re Strauss, supra, at 332-333, 25 S.Ct. at 537. 20 Whatever the scope of discretion vested in the governor of an asylum state, cf. Kentucky v. Dennison, 24 How. 66, 107, 16 L.Ed. 717 (1861), the courts of an asylum state are bound by Art. IV, § 2, cf. Compton v. Alabama, 214 U.S. 1, 8, 29 S.Ct. 605, 607, 53 L.Ed. 885 (1909), by § 3182, and, where adopted, by the Uniform Criminal Extradition Act. A governor's grant of extradition is prima facie evidence that the constitutional and statutory requirements have been met. Cf. Bassing v. Cady, 208 U.S. 386, 392, 28 S.Ct. 392, 393, 52 L.Ed. 540 (1908). Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable. 21 Under Arizona law, felony prosecutions may be commenced either by an indictment or by filing a complaint before a judicial officer. Ariz.Rule Crim.Proc. 2.2 (1973). The magistrate or justice of the peace before whom the criminal charge is filed must issue an arrest warrant if it is determined that there is reasonable cause to believe that an offense has been committed.7 The inquiry the judicial officer is required to make is directed at the traditional determination of reasonable grounds or probable cause. Erdman v. Superior Court, 102 Ariz. 524, 433 P.2d 972 (1967); State v. Currier, 86 Ariz. 394, 347 P.2d 29 (1959). Here the Justice of the Peace in Arizona, having the complaint at hand, issued the warrant for Doran's arrest after concluding that there was "reasonable cause to believe that such offense(s) were committed and that the accused committed them." 22 The Supreme Court of Michigan, however, held that the conclusion was deficient because it did not recite the factual basis for the determination made by the Arizona judicial officer. This holding finds no support in the record read in the light of the mandatory provisions of Art. IV, § 2, cl. 2, and Arizona law. Moreover it overlooks the "conclusory language" in which criminal charges are ordinarily cast whether by indictment or otherwise. Cf. Ex parte Reggel, 114 U.S. 642, 651, 5 S.Ct. 1148, 1153, 29 L.Ed. 250 (1885). 23 Under Art. IV, § 2, the courts of the asylum state are bound to accept the demanding state's judicial determination since the proceedings of the demanding state are clothed with the traditional presumption of regularity. In short, when a neutral judicial officer of the demanding state has determined that probable cause exists, the courts of the asylum state are without power to review the determination. Section 2, cl. 2, of Art. IV, its companion clause in § 1, and established principles of comity merge to support this conclusion. To allow plenary review in the asylum state of issues that can be fully litigated in the charging state would defeat the plain purposes of the summary and mandatory procedures authorized by Art. IV, § 2. See, e. g., Sweeney v. Woodall, 344 U.S. 86, 90, 73 S.Ct. 139, 140, 97 L.Ed. 114 (1952); Marbles v. Creecy, 215 U.S. 63, 69-70, 30 S.Ct. 32, 33-34, 54 L.Ed. 92 (1909); Pierce v. Creecy, 210 U.S. 387, 404-405, 28 S.Ct. 714, 719-720, 52 L.Ed. 1113 (1908). 24 We hold that once the governor of the asylum state has acted on a requisition for extradition based on the demanding state's judicial determination that probable cause existed, no further judicial inquiry may be had on that issue in the asylum state. 25 Accordingly, the judgment of the Michigan Supreme Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. 26 Reversed and remanded. 27 Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, concurring in the result. 28 I am not willing, as the Court appears to me to be, to bypass so readily, and almost to ignore, the presence and significance of the Fourth Amendment in the extradition context. That Amendment is not mentioned at all in the discussion portion (part (3)) of the Court's opinion. I therefore must assume that in the Court's view the Amendment is of little or no consequence in determining what type of habeas corpus review may be had in the asylum State. In contrast to the Court's apparent position, I feel that it is necessary to face the Fourth Amendment issue squarely in order to arrive at a principal result in this case. 29 * The petition for certiorari in this case presented one, and only one, issue: 30 "Did the Michigan Supreme Court misconstrue the Fourth Amendment and the Extradition clause of the United States Constitution when it held that a fugitive may challenge a demanding state's extradition documents on the basis of lack of probable cause under the Fourth Amendment, in a collateral proceeding in the asylum state's courts?" Pet. for Cert. 2.1 31 On this question the state and federal courts are deeply divided.2 Despite the obvious importance of the issue, the Court refuses the opportunity afforded by this case to clarify the requirements of the Fourth Amendment in interstate extradition. Instead, the Court avoids the question on which certiorari was granted by holding that, even if the Fourth Amendment does apply to interstate extradition, its requirements, in this case, were satisfied. Ante, at 285 n. 3. This convenient assumption, in my view, perpetuates confusion in an area where clarification and uniformity are urgently needed. 32 If, on the facts of this case, there could be no question whatsoever that the Fourth Amendment was satisfied, then one would have to agree that it would be unnecessary, strictly speaking, for the Court to decide whether the Amendment applies. But one really cannot know whether the Fourth Amendment was satisfied without examining and determining the procedural protections the Amendment provides and without considering the Fourth Amendment interests at stake, and then weighing those interests against the ones furthered by the Extradition Clause, Art. IV, § 2, cl. 2, of the Constitution.3 33 I would hold that the Fourth Amendment applies in the extradition context, and I would use the opportunity this case affords to articulate, for the guidance of state courts, the proper accommodation between the Fourth Amendment and the Extradition Clause. II 34 The Court's analysis, I fear, rests on cases that preceded the application of Fourth Amendment standards to state criminal proceedings. The basic assumption of these early cases—that the Constitution left the States with virtually complete control over their procedures4—has not been tenable since the Court in Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949), held that the Fourth Amendment applies to the States through the Fourteenth Amendment, and in subsequent cases held that state criminal procedures must conform to the same Fourth Amendment standards that apply to federal proceedings. See, e. g., Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Whatever may have been the law of extradition as propounded by this Court "[n]ear the turn of the century," ante, at 288, the Extradition Clause and its implementing statute, 18 U.S.C. § 3182, no longer may be considered in isolation from the Fourth Amendment.5 35 The Court also relies on what it describes as the "clear and explicit" language of the Extradition Clause. Ante, at 286. But the language of the Fourth Amendment is equally "clear and explicit": 36 "The right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing . . . the persons . . . to be seized." 37 The words of the Amendment provide no grounds for a distinction between "seizures" of persons for extradition and seizures of persons for any other purpose. Neither do they distinguish between an extradition warrant and the usual arrest warrant. Indeed, the "security of one's privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment," Wolf v. Colorado, 338 U.S., at 27, 69 S.Ct. at 1361, applies with undiminished force to the intrusion that occurs in the process of extradition. 38 The requirements of the Fourth Amendment in the context of pretrial arrest and detention were spelled out in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The Amendment, it was said, "requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest."6 Id., at 114, 95 S.Ct. at 863. The Court there stated that extended confinement before trial "may imperil the suspect's job, interrupt his source of income, and impair his family relationships. . . . When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty." Ibid. 39 The extradition process involves an "extended restraint of liberty following arrest" even more severe than that accompanying detention within a single State. Extradition involves, at a minimum, administrative processing in both the asylum State and the demanding State, and forced transportation in between. It surely is a "significant restraint on liberty." For me, therefore, the Amendment's language and the holding in Gerstein mean that, even in the extradition context, where the demanding State's "charge" rests upon something less than an indictment, there must be a determination of probable cause by a detached and neutral magistrate, and that the asylum State need not grant extradition unless that determination has been made. The demanding State, of course, has the burden of so demonstrating. 40 Having said this, however, I recognize that it is the purpose of the Extradition Clause to secure the prompt rendition of interstate fugitives with a minimum of friction between States. See Appleyard v. Massachusetts, 203 U.S. 222, 227-228, 27 S.Ct. 122, 123-124, 51 L.Ed. 161 (1906). The Constitution's concern for efficiency and comity in extradition could be seriously jeopardized if the courts of the asylum State could examine the factual basis for a probable-cause determination already made by a magistrate in the demanding State.7 I therefore would not go so far as to permit the asylum State to delve into the niceties of the underpinnings of the demanding State's probable-cause determination, as the demanding State will be obliged to do if probable cause is made an issue when the fugitive is returned to that State. It is enough if the papers submitted by the demanding State in support of its request for extradition facially show that a neutral magistrate has made a finding of probable cause. If they do, it is not the province of the courts of the asylum State, subject to extended appellate review, to probe the factual sufficiency of that finding. That probe may be conducted in due course in the demanding State.8 III 41 Here the Arizona papers were facially sufficient. An arrest warrant had been issued by an Arizona Justice of the Peace, and that warrant stated specifically: "I have found reasonable cause to believe that such offense(s) were committed and that the accused [Doran] committed them." App. 26a. I equate that recital of "reasonable cause" with the "probable cause" of Fourth Amendment parlance. To be sure, the phraseology is conclusory, but this still was a judicial determination of probable cause, and that, for me, is sufficient for Extradition Clause-Fourth Amendment purposes. The asylum State should be allowed to scrutinize the charging documents only to ascertain that a detached and neutral magistrate made a determination of probable cause. That was the case here. Any further review would create potential for frustration and obstruction of the process established by the Extradition Clause.9 42 I therefore concur only in the result. 1 Michigan dismissed its criminal charges against Doran on February 9 in deference to the extradition on charges pending in Arizona. 2 At the time of his release, Doran had been in custody for 18 months in Michigan pending the extradition proceedings and his challenge to them. Doran's counsel moved to dismiss certiorari in this Court on the ground of mootness due to her inability to locate him in Michigan. That motion is denied. Cf. Eagles v. United States ex rel. Samuels, 329 U.S. 304, 306-308, 67 S.Ct. 313, 314-316, 91 L.Ed. 308 (1946). 3 In Gerstein we held that "the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest." 420 U.S., at 114, 95 S.Ct. at 863. Because Arizona provided a judicial determination of probable cause for the arrest warrant, we need not decide whether the criminal charge on which extradition is requested must recite that it was based on a finding of probable cause. 4 These terms appear to derive from language in Munsey v. Clough, 196 U.S. 364, 373, 25 S.Ct. 282, 284, 49 L.Ed. 515 (1905): "If it appear that the indictment substantially charges an offense for which the person may be returned to the State for trial, it is enough for this [extradition] proceeding." See also Pearce v. Texas, 155 U.S. 311, 313, 15 S.Ct. 116, 117, 39 L.Ed. 164 (1894); Uniform Criminal Extradition Act § 3, 11 U.L.A. 93 (1974). 5 See, e. g., Kirkland v. Preston, 128 U.S.App.D.C. 148, 385 F.2d 670 (1967). 6 Section 3182 remains virtually unchanged from the original version enacted in 1793. 1 Stat. 302. See also Rev.Stat. § 5278; 18 U.S.C. § 662 (1940 ed.). 7 The Arizona justice of the peace may, if necessary, subpoena additional witnesses before issuing a warrant. Ariz.Rev.Stat.Ann. § 22-311 (1975); Ariz.Rules Crim.Proc. 2.4, 3.1, 3.2 (1973 and Supp.1978-1979). The Arizona Rules of Criminal Procedure require that on a finding of probable cause the judicial officer shall issue a warrant reciting the information on which it is based. Rules 3.1 and 3.2 (1973). 1 The question was rephrased, without change in substance, in petitioner's brief on the merits. Brief for Petitioner 2. The respondent submitted a counterstatement of the question: "The Michigan Supreme Court did not misconstrue the Fourth Amendment and the Extradition Clause by holding that the scope of a habeas corpus challenge to extradition legitimately encompasses a scrutiny by the asylum jurisdiction of the charging documents supporting the demanding State's requisition to determine whether such documents facially reflect probable cause and hence substantially charge the accused fugitive with crime." Brief for Respondent 1-2. See also Brief in Opposition 1. It is obvious that each side regards the Fourth Amendment to be of significance. 2 One of the leading cases to the effect that the Fourth Amendment requires the asylum State to determine whether a demand for extradition is supported by probable cause is Kirkland v. Preston, 128 U.S.App.D.C. 148, 385 F.2d 670 (1967). A number of other courts have followed the general line of analysis set out in Kirkland. See, e. g., United States ex rel. Grano v. Anderson, 446 F.2d 272 (CA3 1971); Montague v. Smedley, 557 P.2d 774 (Alaska 1976); Pippin v. Leach, 188 Colo. 385, 534 P.2d 1193 (1975); Brode v. Power, 31 Conn.Supp. 411, 332 A.2d 376 (Super.Ct.1974); Tucker v. Virginia, 308 A.2d 783 (D.C.App.1973); Clement v. Cox, 118 N.H. 246, 385 A.2d 841 (1978); People ex rel. Cooper v. Lombard, 45 A.D.2d 928, 357 N.Y.S.2d 323 (1974); Locke v. Burns, W.Va., 238 S.E.2d 536 (1977). On the other hand, some courts have rejected Kirkland § accommodation of the Fourth Amendment and the Extradition Clause. See, e. g., In re Golden, 65 Cal.App.3d 789, 135 Cal.Rptr. 512, app. dismissed and cert. denied sub nom. Golden v. California, 434 U.S. 805, 98 S.Ct. 35, 54 L.Ed.2d 63 (1977); People ex rel. Kubala v. Woods, 52 Ill.2d 48, 284 N.E.2d 286 (1972); McEwen v. State, 224 So.2d 206 (Miss.1969); Ault v. Purcell, 16 Or.App. 664, 519 P.2d 1285, cert. denied, 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974); Commonwealth ex rel. Marshall v. Gedney, 237 Pa.Super. 372, 352 A.2d 528 (1975); Salvail v. Sharkey, 108 R.I. 63, 271 A.2d 814 (1970). The cases on both sides exhibit a variety of theories and positions. Further, at least in Massachusetts and South Dakota, federal courts in habeas proceedings in effect have nullified decisions by state supreme courts that refused to apply the requirements of the Fourth Amendment to extradition. Compare Ierardi v. Gunter, 528 F.2d 929 (CA1 1976), with In re Ierardi, 366 Mass. 640, 321 N.E.2d 921 (1975), and Wellington v. South Dakota, 413 F.Supp. 151 (SD 1976), with Wellington v. State, S.D., 238 N.W.2d 499 (1976). 3 As I understand today's ruling, the Court does not decide whether and to what extent the Fourth Amendment applies in extradition proceedings. Instead, the Court for present purposes is willing to assume that the Amendment applies to proceedings governed by the Extradition Clause and that it requires, at a minimum, a judicial determination of probable cause prior to any significant restraint on liberty. The Court then holds that the Extradition Clause prohibits the courts of the asylum State from reviewing the adequacy of a properly certified judicial determination of probable cause made in the demanding State. Further, the Court holds that the Supreme Court of Michigan erred in finding that no such determination took place in this case. The documents certified by the Governor of Arizona and approved by the Governor of Michigan indicated on their face that such a finding had been made, and the Michigan court's conclusion to the contrary was based on its impression of procedures followed in Michigan and its own evaluation of the adequacy of the supporting affidavits. I nevertheless find the implications of certain passages in the Court's opinion to be troublesome. The Court says, ante, at 290, that "once the governor of the asylum state has acted on a requisition for extradition based on the demanding state's judicial determination that probable cause existed, no further judicial inquiry may be had on that issue in the asylum state." This seems to imply that it is only the governor who is to review the charging papers, and that the habeas court has no role whatsoever in the matter. A like implication appears in the Court's language, ibid., that "the courts of the asylum state are without power to review the determination." On the other hand, in an earlier passage, ante, at 289, the Court says that the grant of extradition by the governor of an asylum State "is prima facie evidence that the constitutional and statutory requirements have been met." This, for me, is a suggestion that the governor's review and determination effect only a rebuttable presumption that there has been a judicial determination in the demanding State. I also note that some passages in the Court's opinion seem to disregard the proposition that "the Full Faith and Credit Clause does not require that sister States enforce a foreign penal judgment." Nelson v. George, 399 U.S. 224, 229, 90 S.Ct. 1963, 1966, 26 L.Ed.2d 578 (1970). See ante, at 287-288, and 290. These seemingly inconsistent implications indicate that one cannot determine in a principled way what procedures are appropriate in the asylum State without first giving consideration to the Fourth Amendment values that are at stake. 4 The Court made this assumption explicit in In re Strauss, 197 U.S. 324, 331, 25 S.Ct. 535, 536, 49 L.Ed. 774 (1905), a case quoted by the Court, ante, at 288: "Under the Constitution each State was left with full control over its criminal procedure." 5 It is of interest to note that when a potential conflict between the Extradition Clause and some other constitutional provision has been recognized, this Court long ago suggested that the Clause be interpreted so as to avoid the conflict. In Kentucky v. Dennison, 24 How. 66, 65 U.S. 66, 16 L.Ed. 717 (1861), Mr. Chief Justice Taney, speaking for the Court, discussed the Extradition Clause's requirement that a person be "charged" with "Treason, Felony, or other Crime." He indicated that the general term "charged" should be construed in accord with accepted constitutional principles governing the roles of the judicial and executive departments. He concluded that the governor of the demanding State was not authorized by the Extradition Clause to demand the return of a fugitive unless the fugitive "was charged in the regular course of judicial proceedings." Id., at 104. 6 The Court noted that it has held that "an indictment, 'fair upon its face,' and returned by a 'properly constituted grand jury,' conclusively determines the existence of probable cause and requires issuance of an arrest warrant without further inquiry. Ex parte United States, 287 U.S. 241, 250, 53 S.Ct. 129, 131, 77 L.Ed. 283 (1932)." 420 U.S., at 117 n. 19, 95 S.Ct. at 865. 7 Other types of review in the asylum State's courts entail less potential for friction and delay. As the Court indicates, ante, at 289, 18 U.S.C. § 3182 itself contemplates that the courts of the asylum State may make inquiry into "historic facts readily verifiable," such as the identity of the fugitive and the existence of a "charge." There is nothing to indicate that this type of routine and basic inquiry has led to frustration of the extradition process. 8 This limitation on the scope of habeas review in the asylum State's courts could perhaps be said to be a limit on the alleged fugitive's Fourth Amendment rights, since habeas review to determine the existence of probable cause justifying detention is not usually so restricted. See Gerstein v. Pugh, 420 U.S., at 115, 95 S.Ct. at 864. Nevertheless, when the documents certified and approved by two governors indicate on their face that a judicial determination of probable cause has been made in the demanding State, this compromise, if it be one, limiting the scope of review in the courts of the asylum State, seems a proper accommodation of the constitutional provisions. The nature of habeas relief in the courts of the demanding State and in the federal courts is not at issue in this case. Nor does this case involve the scope of habeas relief in circumstances in which the terms of the Extradition Clause do not apply. 9 It seems obvious, of course, that Arizona's procedure is not to be measured by the fact—if it be a fact—that arrest warrants in Michigan often are issued without a preliminary showing of probable cause.

01

439 U.S. 410 99 S.Ct. 693 58 L.Ed.2d 619 Bessie B. GIVHAN, Petitioner,v.WESTERN LINE CONSOLIDATED SCHOOL DISTRICT et al. No. 77-1051. Argued Nov. 7, 1978. Decided Jan. 9, 1979. Syllabus After petitioner was dismissed from her employment as a teacher, she intervened in a desegregation action against respondent School District seeking reinstatement on the ground, inter alia, that her dismissal infringed her right of free speech under the First and Fourteenth Amendments. In an effort to justify the dismissal, the School District introduced evidence of, inter alia, a series of private encounters between petitioner and the school principal in which petitioner allegedly made "petty and unreasonable demands" in a manner variously described by the principal as "insulting," "hostile," "loud," and "arrogant." Concluding that the primary reason for the dismissal was petitioner's criticism of the School District's practices and policies, which she conceived to be racially discriminatory, the District Court held that the dismissal violated petitioner's First Amendment rights and ordered her reinstatement. The Court of Appeals reversed, holding that under Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811; Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570; and Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471, petitioner's complaints and opinions were not protected by the First Amendment because they were expressed privately to the principal, and because there is no constitutional right to "press even 'good' ideas on an unwilling recipient." Held : A public employee does not forfeit his First Amendment protection against governmental abridgment of freedom of speech when he arranges to communicate privately with his employer rather than to express his views publicly. Pp. 413-417. (a) Pickering, Perry, and Mt. Healthy do not support the Court of Appeals' conclusion that private expression is unprotected by the First Amendment. The fact that each of those cases involved public expression by the employee was not critical to the decision. Pp. 414-415. (b) Nor is the Court of Appeals' view supported by the "captive audience" rationale, since the principal, having opened his office door to petitioner, was hardly in a position to argue that he was the "unwilling recipient" of her views. P. 415. (c) Respondents' Mt. Healthy claim, rejected by the Court of Appeals, that the decision to terminate petitioner would have been made even if her encounters with the principal had never occurred called for a factual determination that could not, on the record, be resolved by that court, since it was not presented to the District Court, Mt Healthy having been decided after the trial in this case. Pp. 416-417. 555 F.2d 1309, vacated in part and remanded. David Rubin, Washington, D. C., for petitioner. J. Robertshaw, Greenville, Miss., for respondents. Mr. Justice REHNQUIST delivered the opinion of the Court. 1 Petitioner Bessie Givhan was dismissed from her employment as a junior high English teacher at the end of the 1970-1971 school year.1 At the time of petitioner's termination, respondent Western Line Consolidated School District was the subject of a desegregation order entered by the United States District Court for the Northern District of Mississippi. Petitioner filed a complaint in intervention in the desegregation action, seeking reinstatement on the dual grounds that nonrenewal of her contract violated the rule laid down by the Court of Appeals for the Fifth Circuit in Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (1969), rev'd and remanded sub nom. Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970), on remand, 425 F.2d 1211 (1970), and infringed her right of free speech secured by the First and Fourteenth Amendments of the United States Constitution. In an effort to show that its decision was justified, respondent School District introduced evidence of, among other things,2 a series of private encounters between petitioner and the school principal in which petitioner allegedly made "petty and unreasonable demands" in a manner variously described by the principal as "insulting," "hostile," "loud," and "arrogant." After a two-day bench trial, the District Court held that petitioner's termination had violated the First Amendment. Finding that petitioner had made "demands" on but two occasions and that those demands "were neither 'petty' nor 'unreasonable,' insomuch as all the complaints in question involved employment policies and practices at [the] school which [petitioner] conceived to be racially discriminatory in purpose or effect," the District Court concluded that "the primary reason for the school district's failure to renew [petitioner's] contract was her criticism of the policies and practices of the school district, especially the school to which she was assigned to teach." App. to Pet. for Cert. 35a. Accordingly, the District Court held that the dismissal violated petitioner's First Amendment rights, as enunciated in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), and Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and ordered her reinstatement. 2 The Court of Appeals for the Fifth Circuit reversed. Ayers v. Western Line Consol. School Dist., 555 F.2d 1309 (1977). Although it found the District Court's findings not clearly erroneous, the Court of Appeals concluded that because petitioner had privately expressed her complaints and opinions to the principal, her expression was not protected under the First Amendment. Support for this proposition was thought to be derived from Pickering, supra, Perry, supra, and Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), which were found to contain "[t]he strong implication . . . that private expression by a public employee is not constitutionally protected." 555 F.2d, at 1318. The Court of Appeals also concluded that there is no constitutional right to "press even 'good' ideas on an unwilling recipient," saying that to afford public employees the right to such private expression "would in effect force school principals to be ombudsmen, for damnable as well as laudable expressions." Id., at 1319. We are unable to agree that private expression of one's views is beyond constitutional protection, and therefore reverse the Court of Appeals' judgment and remand the case so that it may consider the contentions of the parties freed from this erroneous view of the First Amendment. 3 This Court's decisions in Pickering, Perry, and Mt. Healthy do not support the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly. While those cases each arose in the context of a public employee's public expression, the rule to be derived from them is not dependent on that largely coincidental fact. 4 In Pickering a teacher was discharged for publicly criticizing, in a letter published in a local newspaper, the school board's handling of prior bond issue proposals and its subsequent allocation of financial resources between the schools' educational and athletic programs. Noting that the free speech rights of public employees are not absolute, the Court held that in determining whether a government employee's speech is constitutionally protected, "the interests of the [employee], as a citizen, in commenting upon matters of public concern" must be balanced against "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." 391 U.S., at 568, 88 S.Ct., at 1734. The Court concluded that under the circumstances of that case "the interest of the school administration in limiting teachers' opportunities to contribute to public debate [was] not significantly greater than its interest in limiting a similar contribution by any member of the general public." Id., at 573, 88 S.Ct., at 1737. Here the opinion of the Court of Appeals may be read to turn in part on its view that the working relationship between principal and teacher is significantly different from the relationship between the parties in Pickering,3 as is evidenced by its reference to its own opinion in Abbott v. Thetford, 534 F.2d 1101 (1976) (en banc), cert. denied, 430 U.S. 954, 97 S.Ct. 1598, 51 L.Ed.2d 804 (1977). But we do not feel confident that the Court of Appeals' decision would have been placed on that ground notwithstanding its view that the First Amendment does not require the same sort of Pickering balancing for the private expression of a public employee as it does for public expression.4 5 Perry and Mt. Healthy arose out of similar disputes between teachers and their public employers. As we have noted, however, the fact that each of these cases involved public expression by the employee was not critical to the decision. Nor is the Court of Appeals' view supported by the "captive audience" rationale. Having opened his office door to petitioner, the principal was hardly in a position to argue that he was the "unwilling recipient" of her views. 6 The First Amendment forbids abridgment of the "freedom of speech." Neither the Amendment itself nor our decisions indicate that this freedom is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public. We decline to adopt such a view of the First Amendment. 7 While this case was pending on appeal to the Court of Appeals, Mt. Healthy City Bd. of Ed. v. Doyle, supra, was decided. In that case this Court rejected the view that a public employee must be reinstated whenever constitutionally protected conduct plays a "substantial" part in the employer's decision to terminate. Such a rule would require reinstatement of employees that the public employer would have dismissed even if the constitutionally protected conduct had not occurred and, consequently, "could place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing." 429 U.S., at 285, 97 S.Ct., at 575. Thus, the Court held that once the employee has shown that his constitutionally protected conduct played a "substantial" role in the employer's decision not to rehire him, the employer is entitled to show "by a preponderance of the evidence that it would have reached the same decision as to [the employee's] reemployment even in the absence of the protected conduct." Id., at 287, 97 S.Ct., at 576. 8 The Court of Appeals in the instant case rejected respondents' Mt. Healthy claim that the decision to terminate petitioner would have been made even if her encounters with the principal had never occurred: 9 "The [trial] court did not make an express finding as to whether the same decision would have been made, but on this record the [respondents] do not, and seriously cannot, argue that the same decision would have been made without regard to the 'demands.' Appellants seem to argue that the preponderance of the evidence shows that the same decision would have been justified, but that is not the same as proving that the same decision would have been made. . . . Therefore [respondents] failed to make a successful 'same decision anyway' defense." 555 F.2d, at 1315. 10 Since this case was tried before Mt. Healthy was decided, it is not surprising that respondents did not attempt to prove in the District Court that the decision not to rehire petitioner would have been made even absent consideration of her "demands." Thus, the case came to the Court of Appeals in very much the same posture as Mt. Healthy was presented in this Court. And while the District Court found that petitioner's "criticism" was the "primary" reason for the School District's failure to rehire her, it did not find that she would have been rehired but for her criticism. Respondents' Mt. Healthy claim called for a factual determination which could not, on this record, be resolved by the Court of Appeals.5 11 Accordingly, the judgment of the Court of Appeals is vacated insofar as it relates to petitioner, and the case is remanded for further proceedings consistent with this opinion. 12 So ordered. 13 Mr. Justice STEVENS, concurring. 14 Because this Court's opinion in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471, had not been announced when the District Court decided this case, it did not expressly find that respondents would have rehired petitioner if she had not engaged in constitutionally protected conduct. The District Court did find, however, that petitioner's protected conduct was the "primary" reason for respondents' decision.* The Court of Appeals regarded that finding as foreclosing respondents'Mt. Healthy claim. In essence, the Court of Appeals concluded that the District Court would have made an appropriate finding on the issue if it had had access to our Mt. Healthy opinion. 15 My understanding of the District Court's finding is the same as the Court of Appeals'. Nevertheless, I agree that the District Court should have the opportunity to decide whether there is any need for further proceedings on the issue. If that court regards the present record as adequate to enable it to supplement its original findings without taking additional evidence, it is free to do so. On that understanding, I join the Court's opinion. 1 In a letter to petitioner, dated July 28, 1971, District Superintendent C. L. Morris gave the following reasons for the decision not to renew her contract: "(1)[A] flat refusal to administer standardized national tests to the pupils in your charge; (2) an announced intention not to co-operate with the administration of the Glen Allan Attendance Center; (3) and an antagonistic and hostile attitude to the administration of the Glen Allan Attendance Center demonstrated throughout the school year." 2 In addition to the reasons set out in the District Superintendent's termination letter to petitioner, n. 1, supra, the School District advanced several other justifications for its decision not to rehire petitioner. The Court of Appeals dealt with these allegations in a footnote: "Appellants also sought to establish these other bases for the decision not to rehire: (1) that Givhan 'downgraded' the papers of white students; (2) that she was one of a number of teachers who walked out of a meeting about desegregation in the fall of 1969 and attempted to disrupt it by blowing automobile horns outside the gymnasium; (3) that the school district had received a threat by Givhan and other teachers not to return to work when schools reopened on a unitary basis in February, 1970; and (4) that Givhan had protected a student during a weapons shakedown at Riverside in March, 1970, by concealing a student's knife until completion of a search. The evidence on the first three of these points was inconclusive and the district judge did not clearly err in rejecting or ignoring it. Givhan admitted the fourth incident, but the district judge properly rejected that as a justification for her not being rehired, as there was no evidence that [the principal] relied on it in making his recommendation." Ayers v. Western Line Consol. School Dist., 555 F.2d 1309, 1313 n. 7 (CA5 1977). 3 The Pickering Court's decision upholding a teacher's First Amendment claim was influenced by the fact that the teacher's public statements had not adversely affected his working relationship with the objects of his criticism: "The statements [were] in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellant's employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning." 391 U.S., at 569-570, 88 S.Ct. at 1735. 4 Although the First Amendment's protection of government employees extends to private as well as public expression, striking the Pickering balance in each context may involve different considerations. When a teacher speaks publicly, it is generally the content of his statements that must be assessed to determine whether they "in any way either impeded the teacher's proper performance of his daily duties in the classroom or . . . interfered with the regular operation of the schools generally." Id., at 572-573, 88 S.Ct., at 1737. Private expression, however, may in some situations bring additional factors to the Pickering calculus. When a government employee personally confronts his immediate superior, the employing agency's institutional efficiency may be threatened not only by the content of the employee's message but also by the manner, time, and place in which it is delivered. 5 We cannot agree with the Court of Appeals that the record in this case does not admit of the argument that petitioner would have been terminated regardless of her "demands." Even absent consideration of petitioner's private encounters with the principal, a decision to terminate based on the reasons detailed at nn. 1 and 2, supra, would hardly strike us as surprising. Additionally, in his letter to petitioner setting forth the reasons for her termination, District Superintendent Morris makes no mention of petitioner's "demands" and "criticism." See n. 1, supra. * App. to Pet. for Cert. 35a. See also id., at 36a, where the District Court stated that petitioner's protected activity was "almost entirely" responsible for her termination.

23

439 U.S. 320 99 S.Ct. 644 58 L.Ed.2d 549 MOBAY CHEMICAL CORPORATIONv.Douglas COSTLE, Administrator, United States Environmental Protection Agency. No. 78-308. Jan. 8, 1979. Rehearing Denied Feb. 26, 1979. See 440 U.S. 940, 99 S.Ct. 1291. PER CURIAM. 1 Appellant contends that the use of one submitter's data, filed prior to 1970, in the consideration of another person's application for registration of pesticides under § 3 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as added by the Federal Environmental Pesticide Control Act of 1972, 86 Stat. 979, and as amended, 89 Stat. 755, 7 U.S.C. § 136a, effects a taking for private use and without compensation in violation of the Fifth Amendment to the Constitution and that the Act is to that extent invalid. A three-judge court was convened under former 28 U.S.C. § 2282 (1970 ed.) and proceeded to reject these contentions. Appellant seeks to appeal directly to this Court. Having examined the Act and the papers before us, however, we are convinced that whatever may be true with respect to data submitted after January 1, 1970, the FIFRA, as amended, does not at all address the issues of the conditions under which pre-1970 data may be used in considering another application. It neither authorizes, forbids, nor requires the existing agency practice with respect to pre-1970 data. As a legal matter, then, appellant's attack is on agency practice, not on the statute. The three-judge court was thus improperly convened, William Jameson & Co. v. Morgenthau, 307 U.S. 171, 173-174, 59 S.Ct. 804, 805, 83 L.Ed. 1189 (1939), and this Court does not have jurisdiction to entertain a direct appeal from the judgment in such case. See 28 U.S.C. § 1253; Norton v. Mathews, 427 U.S. 524, 528-530, 96 S.Ct. 2771, 2773-2775, 49 L.Ed.2d 672 (1976). The appeal is accordingly dismissed for want of jurisdiction. 2 So ordered. 3 Mr. Justice BLACKMUN, dissenting. 4 I am of the view that the 1975 amendments to FIFRA specifically address the practices of the EPA and permit and ratify them. The constitutionality of the statute is therefore necessarily drawn into question in this lawsuit. See Flast v. Cohen, 392 U.S. 83, 88-91, and n. 3, 88 S.Ct. 1942, 1946-1948, and n. 3, 20 L.Ed.2d 947 (1968). I therefore conclude that the three-judge District Court was properly convened. On the merits, I would affirm the judgment of the District Court.

89

439 U.S. 419 99 S.Ct. 995 58 L.Ed.2d 627 State of ARIZONA, Plaintiff,v.State of CALIFORNIA et al. No. 8, Orig. Supreme Court of the United States January 9, 1979. 1 PER CURIAM and SUPPLEMENTAL DECREE. 2 The United States of America, Intervenor, State of Arizona, Complainant, the California Defendants (State of California, Palo Verde Irrigation District, Imperial Irrigation District, Coachella Valley County Water District, The Metropolitan Water District of Southern California, City of Los Angeles, City of San Diego, County of San Diego), and State of Nevada, Intervenor, pursuant to Art. VI of the Decree entered in the case on March 9, 1964, at 376 U.S. 340, 84 S.Ct. 755, 11 L.Ed.2d 757, and amended on February 28, 1966, at 383 U.S. 268, 86 S.Ct. 924, 15 L.Ed.2d 743, have agreed to the present perfected rights to the use of mainstream water in each State and their priority dates as set forth herein. Therefore, it is hereby ORDERED, ADJUDGED, AND DECREED that the joint motion of the United States, the State of Arizona, the California Defendants, and the State of Nevada to enter a supplement decree is granted and that said present perfected rights in each State and their priority dates are determined to be as set forth below, subject to the following: 3 (1) The following listed present perfected rights relate to the quantity of water which may be used by each claimant and the list is not intended to limit or redefine the type of use otherwise set forth in said Decree. 4 (2) This determination shall in no way affect future adjustments resulting from determinations relating to settlement of Indian reservation boundaries referred to in Art. II(D)(5) of said Decree. 5 (3) Article IX of said Decree is not affected by this 6 list of present perfected rights. 7 (4) Any water right listed herein may be exercised only for beneficial uses. 8 (5) In the event of a determination of insufficient mainstream water to satisfy present perfected rights pursuant to Art. II(B)(3) of said Decree, the Secretary of the Interior shall, before providing for the satisfaction of any of the other present perfected rights except for those listed herein as "MISCELLANEOUS PRESENT PERFECTED RIGHTS" (rights numbered 7-21 and 29-80 below) in the order of their priority dates without regard to State lines, first provide for the satisfaction in full of all rights of the Chemehuevi Indian Reservation, Cocopah Indian Reservation, Fort Yuma Indian Reservation, Colorado River Indian Reservation, and the Fort Mojave Indian Reservation as set forth in Art. II(D)(1)-(5) of said Decree, provided that the quantities fixed in paragraphs (1) through (5) of Art. II(D) of said Decree shall continue to be subject to appropriate adjustment by agreement or decree of this Court in the event that the boundaries of the respective reservations are finally determined. Additional present perfected rights so adjudicated by such adjustment shall be in annual quantities not to exceed the quantities of mainstream water necessary to supply the consumptive use required for irrigation of the practicably irrigable acres which are included within any area determined to be within a reservation by such final determination of a boundary and for the satisfaction of related uses. The quantities of diversions are to be computed by determining net practicably irrigable acres within each additional area using the methods set forth by the Special Master in this case in his Report to this Court dated December 5, 1960, and by applying the unit diversion quantities thereto, as listed below: Unit Diversion Quantity Acre-Feet 9 Indian Reservation Per Irrigable Acre Cocopah 6.37 Colorado River 6.67 Chemehuevi 5.97 Ft. Mojave 6.46 Ft. Yuma 6.67 10 The foregoing reference to a quantity of water necessary to supply consumptive use required for irrigation, and as that provision is included within paragraphs (1) through (5) of Art. II(D) of said Decree, shall constitute the means of determining quantity of adjudicated water rights but shall not constitute a restriction of the usage of them to irrigation or other agricultural application. If all or part of the adjudicated water rights of any of the five Indian Reservations is used other than for irrigation or other agricultural application, the total consumptive use, as that term is defined in Art. I(A) of said Decree, for said Reservation shall not exceed the consumptive use that would have resulted if the diversions listed in subparagraph (i) of paragraphs (1) through (5) of Art. II(D) of said Decree and the equivalent portions of any supplement thereto had been used for irrigation of the number of acres specified for that Reservation in said paragraphs and supplement and for the satisfaction of related uses. Effect shall be given to this paragraph notwithstanding the priority dates of the present perfected rights as listed below. However, nothing in this paragraph (5) shall affect the order in which such rights listed below as "MISCELLANEOUS PRESENT PERFECTED RIGHTS" (numbered 7-21 and 29-80 below) shall be satisfied. Furthermore, nothing in this paragraph shall be construed to determine the order of satisfying any other Indian water rights claims not herein specified. Table 11 * ARIZONA 12 A. Federal Establishments' Present Perfected Rights 13 The Federal establishments named in Art. II, subdivision (D), paragraphs (2), (4), and (5) of the Decree entered March 9, 1964, in this case, such rights having been decreed in Art. II: Annual Diversions Net Priority 14 Defined Area of Land (acre-feet)5 Acres5 Date 15 1) Cocopah Indian Reservation 2744 431 Sept. 27, 1917 16 2) Colorado River Indian 358,400 53,768 Mar. 3, 1865 Reservation 17 252,016 37308 Nov. 22, 1873 18 51,986 7,79 Nov. 16, 1874 19 3) Fort Mojave Indian Reservation 68,447 10,589 Feb. 2, 1911 B. Water Projects' Present Perfected Rights 20 (4) The Valley Division, Yuma Project in annual quantities not to exceed (i) 254,200 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 43,562 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of 1901. 21 (5) The Yuma Auxiliary Project, Unit B in annual quantities not to exceed (i) 6,800 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 1,225 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of July 8, 1905. 22 (6) The North Gila Valley Unit, Yuma Mesa Division, Gila Project in annual quantities not to exceed (i) 24,500 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 4,030 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of July 8, 1905. C. Miscellaneous Present Perfected Rights 23 1. The following miscellaneous present perfected rights in Arizona in annual quantities of water not to exceed the listed acre-feet of diversion from the mainstream to supply the consumptive use required for irrigation and the satisfaction of related uses within the boundaries of the land described and with the priority dates listed: Annual Diversions Priority 24 Defined Area of Land (acre-feet) Date 25 ----------------- ----------- 26 7) 27 160 acres in Lots 21, 24, 25, Sec. 29 and 960 1915 28 Lots 15, 16, 17 and 18, and the SW1/4 of the 29 SE1/4, Sec. 30, T.16S., R22E., San Bernardino 30 Base and Meridian, Yuma County, Arizona.(Powers)2 31 8) 32 Lots 11, 12, 13 19, 20, 22, and S1/2 of SW1/4, 1,140 1915 Sec. 30, T.16S., R22E., San Berardino Base 33 and Meridian, Yuma County, Arizona. (United States)3 34 NOTE: Footnotes to table items 7 through 25 are on p. 428 Annual Diversions Priority 35 Defined Area of Land (acre-feet) Date 36 ---------------- ----------- 37 9) 38 60 acres within Lot2, Sec. 15 and Lots 1 and 2, 360 1902 Sec. 22 T.10N., R.19W, G&SRBM. (Graham)2 10) 39 180 acres within the N1/2 of the S1/2 and the 40 S1/2 of the N1/2 of Sec. 13 and the SW1/4 of the 1,080 1902 41 NE1/4 of Sec. 14, T.18., R.22W., G&SRBM.(Hulet)2 11) 42 45 acres within the NE1/4 of the SW1/14, the SW1/4 of theSW1/4 and the SE1/4 of the 43 SW1/4 of sec. 11, T.18N., R.22W., G&SRBM. 44 80 acres within the n1/2 of the SE1/4 of Sec. 1,050 1902 45 11.T.18N.,r22W.,G&SRBM. 10 acres within the NW1/4 of the NE1/4 of 46 Sec. 15, T.18N., R.22W., G & SRBM. 47 40 acres within the SE1/4 of the SE1/4 of Sec. 15, T.18N., R.22W., G & SRBM. (Hurschler)2 48 12) 40 acres within Sec. 13, T.17N., R.22W., G & SRBM. 240 1902 49 (Miller)2 50 13) 120 acres within Sec. 27, T.18N., R.21W., G & SRBM. 51 15 acres within the NW1/4 of the NW1/4, Sec. 23, 810 1902 52 T.18N., R.22W., G & SRBM. (McKellips and Granite Reef Farms)4 53 14) 180 acres within the NW1/4 of the NE1/4, the 1,080 1902 54 SW1/4 of the NE1/4, the NE1/4 of the SW1/4, the 55 NW1/4 of the SE1/4, the NE1/4 of the SE1/4, and 56 the SW1/4 of the SE1/4, and the 57 SE1/4 of the SE1/4, Sec. 31, T.18N., R.21W., G & SRBM. 58 (Sherrill & Lafollette)4 Annual Diversions Priority 59 Defined Area of Land (acre-feet) Date 60 --------------- ----------- 61 15) 53.89 acres as follows: 318 1928 62 Beginning at a point 995.1 feet easterly of the 63 NW corner of the NE1/4 of Sec. 10, T.8S., 64 R.22W., Gila and Salt River Base and Meridian; 65 on the northerly boundary of the said NE1/4, 66 which is the true point of beginning, then 67 in a southerly direction to a point on the 68 southerly boundary of the said NE1/4 which is 991.2 feet E. of the SW corner of said NE1/4 69 thence easterly along the S. line of the NE1/4, 70 a distance of 807.3 feet to a point, thence N. 71 0x7' W., 768.8 feet to a point, thence E. 124.0 feet to a point, thence northerly 0x 72 14' W., 1,067.6 feet to a point, thence E. 73 130 feet to a point, thence northerly 0x20' 74 W., 405.2 feet to a point, thence northerly 63x 75 10' W., 506.0 feet to a point, thence northerly 90x 15' W., 562.9 feet to a point on the 76 northerly boundary of the said NE1/4, thence 77 easterly along the said northerly boundary of 78 the said NE1/4, 116.6 feet to the true point of 79 the beginning containing 53.89 acres. All as 80 more particularly described and set forth in 81 that survey executed by Thomas A. Yowell, Land Surveyor on June 24, 1969. (Molina)4 82 16) 60 acres within the NW1/4 of the NW1/4 83 and the north half of the SW1/4 of the NW1/4 of 84 Sec. 14, T.8S., R.22W., G & SRBM. 85 70 acres within the S1/2 of the SW1/4 of the SW1/4 780 1925 86 and the W1/2 of the SW1/4, Sec. 14, T.8S., R.22W., G & SRBM. (Sturges)4 87 17)120 acres within the N1/2 NE1/4, NE1/4 NW1/4, 88 Section 23, T.18N., R.22W., G & SRBM. (Zozaya)4 720 1912 Annual Diversions Priority 89 Defined Area of Land (acre-feet) Date 90 --------------- ------------- 18) 91 40 acres in the W1/2 of the NE1/4 of Section 30, 92 and 60 acres in the W1/2 of the SE1/4 of Section 93 30, and 60 acres in the E1/2 of the NW1/4 of 94 Section 31, comprising a total of 160 acres all in 95 Township 18 North, Range 21 West of the G & SRBM. (Swan)4 960 1902 19) 96 7 acres in the East 300 feet of the W1/2 of Lot 1 97 (Lot 1, being the SE1/4 SE1/4, 40 acres more or less), 98 Section 28, Township 16 South, Range 22 East, 99 San Bernardino Meridian, lying North of U.S. Bureau 100 of Reclamation levee right of way. EXCEPT that 101 portion conveyed to the United States of America 102 by instrument recorded in Docket 417, page 150 EXCEPTING any portion of the East 300 feet of W1/2 of Lot 1 within the natural bed of the 103 Colorado River below the line of ordinary high 104 water and also EXCEPTING any artificial accretions 105 waterward of said line of ordinary high water, 106 all of which comprises approximately seven (7) acres. 107 (Milton and Jean Phillips)4 42 1900 108 2. The following miscellaneous present perfected rights in Arizona in annual quantities of water not to exceed the listed number of acre-feet of (i) diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use, whichever of (i) or (ii) is less, for domestic, municipal, and industrial purposes within the boundaries of the land described and with the priority dates listed: Annual Annual Consumptive Diversions Use Priority 109 Defined Area of Land (acre-feet) (acre-feet) Date 110 20) City of Parker2 630 400 1905 21) City of Yuma2 2,333 1,478 1893 II CALIFORNIA 111 A. Federal Establishments' Present Perfected Rights 112 The federal establishments named in Art. II, subdivision (D), paragraphs (1), (3), (4), and (5) of the Decree entered March 9, 1964, in this case such rights having been decreed by Art. II: Annual Diversions Net Priority 113 Defined Area of Land (acre-feet)5 Acres5 Date 22) 114 Chemehuevi Indian Reservation 11,340 1,900 Feb. 2, 1907 23) 115 Yuma Indian Reservation 51,616 7,743 Jan. 9,1884 24) 116 Colorado River Indian Reservation 10,745 1,612 Nov. 22, 1873 40,241 6,037 Nov. 16, 1874 3,760 564 May 15, 1876 25) 117 Fort Mojave Indian Reservation 13,698 2,119 Sept. 18, 1890 118 B. Water Districts' and Projects' Present Perfected Rights 26) 119 The Palo Verde Irrigation District in annual quantities not to exceed (i) 219,780 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 33,604 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of 1877. 27) 120 The Imperial Irrigation District in annual quantities not to exceed (i) 2,600,000 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 424,145 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of 1901. 28) 121 The Reservation Division, Yuma Project, California (non-Indian portion) in annual quantities not to exceed (i) 38,270 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 6,294 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of July 8, 1905. C. Miscellaneous Present Perfected Rights 122 1. The following miscellaneous present perfected rights in California in annual quantities of water not to exceed the listed number of acre-feet of diversions from the mainstream to supply the consumptive use required for irrigation and the satisfaction of related uses within the boundaries of the land described and with the priority dates listed: Annual 123 Diversions Priority 124 Defined Area of Land (acre feet) Date 29) 125 130 acres within Lots 1, 2, and 3, 126 SE1/4 of NE1/4 of Section 27, T.16S., R.22E., S.B.B. & M (Wavers) 6780 1856 NOTE:Footnotes to table items 29 through are on p. 435 Annual Diversions Priority Defined Area of Land (acre feet) Date 30) 40 acres within W1/2, W1/2 of E1/2 of Section 1, T.9N., R.22E., S.B.B. & M. (Stephenson)6 240 1923 31) 20 acres within Lots 1 and 2, Sec. 19, T.13S., R.23E., and Lots 2, 3, and 4 of Sec. 24, T.13S., R.22E., S.B.B. & M. (Mendivil)6 120 1893 32) 30 acres within NW1/4 of SE1/4, S1/2 of SE1/4, Sec. 24, and NW1/4 of NE1/4, Sec. 25, all in T.9S., R.21E., S.B.B. & M. (Grannis)6 180 1928 33) 25 acres within Lot 6, Sec. 5; and Lots 1 and 2, SW1/4 of NE 1/4, and NE1/4 of SE1/4 of Sec. 8, and Lots 1 & 2 of Sec. 9, all in T.13S., R.22E., S.B.B. & M. (Morgan)6 150 1913 34) 18 acres within E1/2 of NW1/4 and W1/2 of NE1/4 of Sec. 14, T.10S., R.21E., S.B.B. & M. (Milpitas)6 108 1918 35) 10 acres within N1/2 of NE1/4, SE1/4 of NE1/4, and NE1/4 of SE1/4 Sec. 30, T. 9 N., R. 23 E., S.B.B. & M. (Simons)6 60 1889 36) 16 acres within E1/2 of NW1/4 and N1/2 of SW1/4, Sec. 12, T.9N., R.22E., S.B.B. & M. (Colo.R. Sportsmen's League)6 96 1921 37) 11 5 acres within E1/2 of NW1/4, Sec. 1, T.10S., R.21E., S.B.B. & M. (Milpitas)6 69 1914 38) 11 acres within S1/2 of SW1/4, Sec. 12, T.9N., R.22E., S.B.B. & M. (Andrade)6 66 1921 39) 6 acres within Lots 2, 3, and 7 and NE1/4 of SW1/4, Sec. 19, T.9N., R.23E., S.B.B. & M. (Reynolds)6 36 1904 Annual Diversions Priority Defined Area of Land (acre feet) Date 40) 10 acres within N1/2 of NE1/4, SE1/4 of NE1/4 and NE1/4 of SE1/4 Sec. 24, T.9N., R.22E., S.B.B. & M. (Cooper)6 60 1905 41) 20 acres within SW1/4 of SW1/4 (Lot 8), Sec. 19, T.9N., R.23E., S.B.B. & M. (Chagnon)7 120 1925 42) 20 acres within NE1/4 of SW1/4, N1/2 of SE1/4, SE1/4 of SE1/4, Sec. 14, T.9S., R.21E., S.B.B. & M. (Lawrence)7 120 1915 2 The following miscellaneous present perfected rights in California in annual quantities of water not to exceed the listed number of acre-feet of (i) diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use, whichever of (i) or (ii) is less, for domestic, municipal, and industrial purposes within the boundaries of the land described and with the priority dates listed: Annual Annual Consumptive Diversions Use Priority Defined Area of Land (acre-feet) (acre-feet) Date ----------------- --------------- Annual Annual Consumptive Diversions Use Priority Defined Area of Land (acre-feet) (acre-feet) Date ----------------- --------------- Annual Annual Consumptive Diversions Use Priority Defined Area of Land (acre-feet) (acre-feet) Date ----------------- --------------- Annual Annual Consumptive Diversions Use Priority Defined Area of Land (acre-feet) (acre-feet) Date ----------------- --------------- Annual Annual Consumptive Diversions Use Priority Defined Area of Land (acre-feet) (acre-feet) Date ----------------- --------------- March 9, 1964, in this case, such rights having been decreed by Art. II: Annual Diversions Net Priority Defined Area of Land (acre-feet) Acres Date 81) Fort Mojave Indian Reservation 12,5348 1,9398 Sept. 18, 1890 82) Lake Mead National Recreation Area 500 3009 May 3, 192910 (The Overton Area of Lake Mead N.R.A. provided in Executive Order 5105) It is ordered that Judge Elbert P. Tuttle be appointed Special Master in this case with authority to fix the time and conditions for the filing of additional A. Federal Establishments' Present Perfected Rights—Continued pleadings and to direct subsequent proceedings, and with authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem necessary to call for. The Master is directed to submit such reports as he may deem appropriate. The Master shall be allowed his actual expenses. The allowances to him, the compensation paid to his technical, stenographic, and clerical assistants, the cost of printing his report, and all other proper expenses shall be charged against and borne by the parties in such proportion as the Court may hereafter direct. It is further ordered that if the position of Special Master in this case becomes vacant during a recess of the Court, THE CHIEF JUSTICE shall have authority to make a new designation which shall have the same effect as if originally made by the Court. It is further ordered that the motion of Fort Mojave Indian Tribe et al. for leave to intervene, insofar as it seeks intervention to oppose entry of the supplemental decree, is denied. In all other respects, this motion and the motion of Colorado River Indian Tribes et al. for leave to intervene are referred to the Special Master. Mr. Justice MARSHALL took no part in the consideration or decision of this case. 1 The quantity of water in each instance is measured by (i) diversions or (ii) consumptive use required for irrigation of the respective acreage and for the satisfaction of related uses, whichever of (i) or (ii) is less. 2 The names in parentheses following the description of the "Defined Area of Land" are used for identification of present perfected rights only; the name used is the first name appearing as the Claimants identified with a parcel in Arizona's 1967 list submitted to this Court. 3 Included as a part of the Powers' claim in Arizona's 1967 list submitted to this Court. Subsequently, the United States and Powers agreed to a Stipulation of Settlement on land ownership whereby title to this property was quieted in favor of the United States. 4 The names in parentheses following the description of the "Defined Area of Land" are the names of claimants, added since the 1967 list, upon whose water use these present perfected rights are predicated. 5 The quantity of water in each instance is measured by (i) diversions or (ii) consumptive use required for irrigation of the respective acreage and for satisfaction of related uses, whichever of (i) or (ii) is less. 43) City of Needles 6 1,500 950 1885 44) Portions of: Secs. 5, 6, 7 & 8, T.7N., R.24E.; Sec. 1, T.7N., R.23E.;Secs. 4, 5, 9, 10, 15, 22, 23, 25, 26, 35, & 36, T.8N., R.23E.; Secs. 19, 29, 30, 32 & 33, T.9N., R.23E., S.B.B. & M. (Atchison, Topeka and Santa Fe Railway Co.)6 1,260 273 1896 45) Lots 1, 2, 3, 4, 5, & SW1/4 NW1/4 of Sec. 5, T.13S., R.22E., S.B.B. & M. (Conger) 7 1.0 0.6 1921 46) Lots 1, 2, 3, 4 of Sec. 32, T.11S., R.22E., S.B.B. & M. (G. Draper)7 1.0 0.6 1923 47) Lots 1, 2, 3, 4, and SE1/4 SW1/4 of Sec. 20, T.11s., R.22E., S.B.B. & M. (McDonough)7 1.0 0.6 1919 48) SW1/4 of Sec. 25, T.8S., R.22E., S.B.B. & M. (Faubion) 7 1.0 0.6 1925 49) W1/2 NW1/4 of Sec. 12, T.9N., R.22E., S.B.B. & M. (Dudley) 7 1.0 0.6 1922 50) N1/2 SE1/4 and Lots 1 and 2 of Sec. 13, T.8S., R.22E., S.B.B. & M. (Douglas)7 1.0 0.6 1916 51) N1/2 SW1/4, NW1/4 SE1/4, Lots 6 and 7, Sec. 5, T.9S., R22E., S.B.B. & M. (Beauchamp)7 1.0 0.6 1924 52) NE1/4 SE1/4, SE1/4 NE1/4, and Lot 1, Sec. 26, T.8S., R.22E., S.B.B. & M. (Clark)7 1.0 0.6 1916 53) N1/2 SW1/4, NW1/4 SE1/4, SW1/4 NE1/4, Sec. 13, T.9S., R.21E., S.B.B. & M. (Lawrence)7 1.0 0.6 1915 54) N1/2 NE1/4, E1/2 NW1/4, Sec. 13, T.9S., R.21E., S.B.B. & M. (J. Graham)7 1.0 0.6 1914 55) SE1/4, Sec. 1, T.9S., R.21E., S.B.B. & M. (Geiger) 7 1.0 0.6 1910 56) Fractional W1/2 of SW1/4 (Lot 6) Sec. 6, T.9S., R.22E., S.B.B. & M. (Schneider)7 1.0 0.6 1917 57) Lot 1, Sec. 15; Lots 1 & 2, Sec. 14; Lots 1 & 2, Sec. 23; all in T.13S., R.22E., S.B.B. & M. (Martinez)7 1.0 0.6 1895 58) NE1/4, Sec. 22, T.9S., R.21E., S.B.B. & M. (Earle) 7 1.0 0.6 1925 59) NE1/4 SE1/4, Sec. 22, T.9S., R.21E., S.B.B. & M. (Diehl)7 1.0 0.6 1928 60) N1/2 NW1/4, N1/2 NE1/4, Sec. 23, T.9S., R.21E., S.B.B. & M. (Reid)7 1.0 0.6 1912 61) W1/2 SW1/4, Sec. 23, T.9S., R.21E., S.B.B. & M. (Graham)7 1.0 0.6 1916 62) S1/2 NW1/4, NE1/4 SW1/4, SW1/4 NE1/4, Sec. 23, T.9S., R.21E., S.B.B. & M. (Cate) 7 1.0 0.6 1919 63) SE1/4 NE1/4, N1/2 SE1/4, SE1/4 SE1/4, Sec. 23, T.9S., R.21E., S.B.B. & M. (McGee)71.0 0.6 1924 64) SW1/4 SE1/4, SE1/4 SW1/4, Sec. 23, NE1/4 NW1/4, NW1/4 NE1/4, Sec. 26; all in T.9S., R.21E., S.B.B. & M. (Stallard) 7 1.0 0.6 1924 65) W1/2 SE1/4, SE1/4 SE1/4, Sec. 26, T.9S., R.21E., S.B.B. & M. (Randolph)7 1.0 0.6 1926 66) E1/2 NE1/4, SW1/4 NE1/4, SE1/4 NW1/4, Sec. 26, T.9S., R.21E., S.B.B. & M. (Stallard)7 1.0 0.6 1928 67) S1/2 SW1/4, Sec. 13, N1/2 NW1/4, Sec. 24; all in T.9S., R.21E., S.B.B. & M. (Keefe)7 1.0 0.6 1926 68) SE1/4 NW1/4, NW1/4 SE1/4, Lots 2, 3 & 4, Sec. 25, T.13S., R.23E., S.B.B. & M. (C. Ferguson)7 1.0 0.6 1903 69) Lots 4 & 7, Sec. 6; Lots 1 & 2, Sec. 7; all in T.14S., R.24E., S.B.B. & M. (W. Ferguson)7 1.0 0.6 1903 70) SW1/4 SE1/4, Lots 2, 3, and 4, Sec. 24, T.12S., R.21E., Lot 2, Sec. 19, T.12S., R.22E., S.B.B. & M. (Vaulin)7 1.0 0.6 1920 71) Lots 1, 2, 3 and 4, Sec. 25, T.12S., R.21E., S.B.B. & M. (Salisbury)7 1.0 0.6 1920 72) Lots 2, 3, SE1/4 SE1/4, Sec. 15, NE1/4 NE1/4, Sec. 22; all in T.13S., R.22E., S.B.B. & M. (Hadlock)71.0 0.6 1924 73) SW1/4 NE1/4, SE1/4 NW1/4, and Lots 7 & 8, Sec. 6, T.9S., R.22E., S.B.B. & M. (Streeter)7 1.0 0.6 1903 74) Lot 4, Sec. 5; Lots 1 & 2, Sec. 7; Lots 1 & 2, Sec. 8; Lot 1, Sec. 18; all in T.12S., R.22E., S.B.B. & M. (J. Draper) 7 1.0 0.6 1903 75) SW1/4 NW1/4, Sec. 5; SE1/4 NE1/4 and Lot 9, Sec. 6; all in T.9S., R.22E., S.B.B. & M. (Fitz) 71.0 0.6 1912 76) NW1/4 NE1/4, Sec. 26; Lots 2 & 3, W1/2 SE1/4, Sec. 23; all in T.8S., R.22E., S.B.B. & M. (Williams)71.0 0.6 1909 77) Lots 1, 2, 3, 4, & 5, Sec. 25, T.8S., R.22E., S.B.B. & M. (Estrada)7 1.0 0.6 1928 78) S1/2 NW1/4, Lot 1, frac. NE1/4 SW1/4 Sec. 25, T.9S., R.21E., S.B.B. & M. (Whittle)71.0 0.6 1925 79) N1/2 NW1/4, Sec. 25; S1/2 SW1/4, Sec. 24; all in T.9S., R.21E., S.B.B. & M. (Corington) 7 1.0 0.6 1928 80) S1/2 NW1/4, N1/2 SW1/4, Sec. 24, T.9S., R.21E., S.B.B. & M. (Tolliver)7 1.0 0.6 1928 III NEVADA A. Federal Establishments' Present Perfected Rights The federal establishments named in Art. II, subdivision (D), paragraphs (5) and (6) of the Decree entered on ---------- 6 The names in parentheses following the description of the "Defined Area of Land" are used for identification of present perfected rights only; the name used is the first name appearing as the claimant identified with a parcel in California's 1967 list submitted to this Court. 7 The names in parenthesis following the description of the "Defined Area of Land" are the names of the homesteaders upon whose water use these present perfected rights, added since the 1967 list submitted to this Court, are predicated. 8 The quantity of water in each instance is measured by (i) diversions or (ii) consumptive use required for irrigation of the respective acreage and for satisfaction of related uses, whichever of (i) or (ii) is less. 9 Refers to acre-feet of annual consumptive use, not to net acres. 10 Article II (D)(6) of said Decree specifies a priority date of March 3, 1929. Executive Order 5105 is dated May 3, 1929 (see. C.F.R.1964 Cumulative Pocket Supplement, p. 276, and the Findings of Fact and Conclusions of Law of the Special Master's Report in this case, pp. 294-295).

1011

439 U.S. 357 99 S.Ct. 664 58 L.Ed.2d 579 Billy DUREN, Petitioner,v.State of MISSOURI. No. 77-6067. Argued Nov. 1, 1978. Decided Jan. 9, 1979. Syllabus Petitioner was convicted of crimes in a Missouri State court notwithstanding his contention that his right to trial by a jury chosen from a fair cross section of his community was denied by provisions of Missouri law granting women who so request an automatic exemption from jury service. Under the challenged jury-selection system, before the jury wheel is filled women may claim exemption in response to a prominent notice on a jury-selection questionnaire, and, prior to the appearance of jurors for service, women are afforded an additional opportunity to decline service by returning the summons or by simply not reporting for jury duty. Petitioner established that 54% of the adults in the forum county were women; that during 8 of the 10 months immediately prior to his trial only 26.7% of those summoned from the jury wheel were women; and that only 14.5% of the persons on the postsummons weekly venires during this period were women. For the month in which petitioner's jury was chosen, the weekly venires averaged 15.5% women. Petitioner's all-male jury was selected from a panel of 53, of whom 5 were women. The Missouri Supreme Court questioned aspects of petitioner's statistics but held that the underrepresentation of women on jury venires in the forum county did not violate the fair-cross-section requirement set forth in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690, under which a defendant in order to establish a prima facie violation of that requirement must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the group's representation in the source from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation results from systematic exclusion of the group in the jury-selection process. Held: The exemption on request of women from jury service under Missouri law, resulting in an average of less than 15% women on jury venires in the forum county, violates the "fair-cross-section" requirement of the Sixth Amendment as made applicable to the States by the Fourteenth. Pp. 363-370. (a) If women, who "are sufficiently numerous and distinct from men," are systematically excluded from venires, the fair-cross-section requirement cannot be satisfied. Taylor, supra, at 531. p. 364. (b) There is no evidence to show that the 1970 census data on which petitioner relied distorted the percentage of women in the forum county at the time of trial, and the court below erred in concluding that jury venires with approximately 15% women are "reasonably representative" of the relevant community. Pp. 364-366. (c) Petitioner's proof showed that the underrepresentation of women, generally and on his venire, was attributable to their systematic exclusion in the jury-selection process at both the jury wheel and summons stages, resulting in the low percentage (14.5%) at the final, venire, stage. Pp. 366-367. (d) Respondent did not satisfy its burden of showing any significant state interest justifying the infringement of petitioner's constitutional right to a jury drawn from a fair cross section of the community. It did not show that exemptions other than that for women caused the underrepresentation of women. Nor does exempting all women because of preclusive domestic responsibilities of some women constitute sufficient justification for the disproportionate exclusion of women on jury venires permitted in Missouri. Pp. 367-370. 556 S.W.2d 11, reversed and remanded. Lee M. Nation, Kansas City, Mo., and Ruth B. Ginsburg, New York City, for petitioner. Nanette Laughrey, Jefferson City, Mo., for respondent. Mr. Justice WHITE delivered the opinion of the Court. 1 In Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), this Court held that systematic exclusion of women during the jury-selection process, resulting in jury pools not "reasonably representative" of the community, denies a criminal defendant his right, under the Sixth and Fourteenth Amendments, to a petit jury selected from a fair cross section of the community.1 Under the system invalidated in Taylor, a woman could not serve on a jury unless she filed a written declaration of her willingness to do so.2 As a result, although 53% of the persons eligible for jury service were women, less than 1% of the 1,800 persons whose names were drawn from the jury wheel during the year in which appellant Taylor's jury was chosen were female. Id., at 524. 2 At the time of our decision in Taylor no other State provided that women could not serve on a jury unless they volunteered to serve.3 However, five States, including Missouri, provided an automatic exemption from jury service for any women requesting not to serve.4 Subsequent to Taylor, three of these States eliminated this exemption.5 Only Missouri, respondent in this case, and Tennessee6 continue to exempt women from jury service upon request.7 Today we hold that such systematic exclusion of women that results in jury venires averaging less than 15% female violates the Constitution's fair-cross-section requirement. 3 * Petitioner Duren was indicted in 1975 in the Circuit Court of Jackson County, Mo., for first-degree murder and first-degree robbery. In a pretrial motion to quash his petit jury panel and again in a post-conviction motion for a new trial, he contended that his right to trial by a jury chosen from a fair cross section of his community was denied by provisions of Missouri law granting women who so request an automatic exemption from jury service.8 Both motions were denied. 4 At hearings on these motions, petitioner established that the jury-selection process in Jackson County begins with the annual mailing of a questionnaire to persons randomly selected from the Jackson County voter registration list. Approximately 70,000 questionnaires were mailed in 1975. The questionnaire contains a list of occupations and other categories which are the basis under Missouri law for either disqualification9 or exemption10 from jury service.11 Included on the questionnaire is a paragraph prominently addressed "TO WOMEN" that states in part: 5 "Any woman who elects not to serve will fill out this paragraph and mail this questionnaire to the jury commissioner at once."12 6 A similar paragraph is addressed "TO MEN OVER 65 YEARS OF AGE," who are also statutorily exempt upon request.13 7 The names of those sent questionnaires are placed in the master jury wheel for Jackson County, except for those returning the questionnaire who indicate disqualification or claim an applicable exemption. Summonses are mailed on a weekly basis to prospective jurors randomly drawn from the jury wheel. The summons, like the questionnaire, contains special directions to men over 65 and to women, this time advising them to return the summons by mail if they desire not to serve. The practice also is that even those women who do not return the summons are treated as having claimed exemption if they fail to appear for jury service on the appointed day.14 Other persons seeking to claim an exemption at this stage must make written or personal application to the court. 8 Petitioner established that according to the 1970 census, 54% of the adult inhabitants of Jackson County were women. He also showed that for the periods June-October 1975 and January-March 1976,15 11,197 persons were summoned and that 2,992 of these or 26.7%, were women. Of those summoned, 741 women and 4,378 men appeared for service. Thus, 14.5% (741 of 5,119) of the persons on the postsummons weekly venires during the period in which petitioner's jury was chosen were female.16 In March 1976, when petitioner's trial began, 15.5% of those on the weekly venires were women (110 of 707).17 Petitioner's jury was selected from a 53-person panel on which there were 5 women; all 12 jurors chosen were men.18 None of the foregoing statistical evidence was disputed. 9 In affirming petitioner's conviction, the Missouri Supreme Court questioned two aspects of his statistical presentation. First, it considered the census figures inadequate because they were six years old and might not precisely mirror the percentage of women registered to vote. Second, petitioner had not unequivocally demonstrated the extent to which the low percentage of women appearing for jury service was due to the automatic exemption for women, rather than to sex-neutral exemptions such as that for persons over age 65. 10 The court went on to hold, however, that even accepting petitioner's statistical proof, "the number of female names in the wheel, those summoned and those appearing were well above acceptable constitutional standards." 556 S.W.2d 11, 15-17 (1977).19 We granted certiorari, 435 U.S. 1006, 98 S.Ct. 1875, 56 L.Ed.2d 387 (1978), because of concern that the decision below is not consistent with our decision in Taylor. II 11 We think that in certain crucial respects the Missouri Supreme Court misconceived the nature of the fair-cross-section inquiry set forth in Taylor. In holding that "petit juries must be drawn from a source fairly representative of the community," 419 U.S., at 538, 95 S.Ct., at 702, we explained that 12 "jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." Ibid.20 13 In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. A. 14 With respect to the first part of the prima facie test, Taylor without doubt established that women "are sufficiently numerous and distinct from men" so that "if they are systematically eliminated from jury panels, the Sixth Amendment's fair-cross-section requirement cannot be satisfied." Id., at 531, 95 S.Ct., at 698. B 15 The second prong of the prima facie case was established by petitioner's statistical presentation. Initially, the defendant must demonstrate the percentage of the community made up of the group alleged to be underrepresented, for this is the conceptual benchmark for the Sixth Amendment fair-cross-section requirement. In Taylor, the State had stipulated that 53% of the population eligible for jury service21 was female, while petitioner Duren has relied upon a census measurement of the actual percentage of women in the community (54%). In the trial court, the State of Missouri never challenged these data. Although the Missouri Supreme Court speculated that changing population patterns between 1970 and 1976 and unequal voter registration by men and women22 rendered the census figures a questionable frame of reference,23 there is no evidence whatsoever in the record to suggest that the 1970 census data significantly distorted the percentage of women in Jackson County at the time of trial. Petitioner's presentation was clearly adequate prima facie evidence of population characteristics for the purpose of making a fair-cross-section violation.24 16 Given petitioner's proof that in the relevant community slightly over half of the adults are women, we must disagree with the conclusion of the court below that jury venires containing approximately 15% women are "reasonably rep resentative""S § S § S of this community. If the percentage of women appearing on jury pools in Jackson County had precisely mirrored the percentage of women in the population, more than one of every two prospective jurors would have been female. In fact, less than one of every six prospective jurors was female; 85% of the average jury was male. Such a gross discrepancy between the percentage of women in jury venires and the percentage of women in the community requires the conclusion that women were not fairly represented in the source from which petit juries were drawn in Jackson County. C 17 Finally, in order to establish a prima facie case, it was necessary for petitioner to show that the underrepresentation of women, generally and on his venire, was due to their systematic exclusion in the jury-selection process. Petitioner's proof met this requirement. His undisputed demonstration that a large discrepancy occurred not just occasionally but in every weekly venire for a period of nearly a year manifestly indicates that the cause of the underrepresentation was systematic—that is, inherent in the particular jury-selection process utilized. 18 Petitioner Duren's statistics and other evidence also established when in the selection process the systematic exclusion took place. There was no indication that underrepresentation of women occurred at the first stage of the selection process—the questionnaire canvass of persons randomly selected from the relevant voter registration list. The first sign of a systematic discrepancy is at the next stage—the construction of the jury wheel from which persons are randomly summoned for service. Less than 30% of those summoned were female, demonstrating that a substantially larger number of women answering the questionnaire claimed either ineligibility or exemption from jury service. Moreover, at the summons stage women were not only given another opportunity to claim exemption, but also were presumed to have claimed exemption when they did not respond to the summons. Thus, the percentage of women at the final, venire, stage (14.5%) was much lower than the percentage of women who were summoned for service (26.7%). 19 The resulting disproportionate and consistent exclusion of women from the jury wheel and at the venire stage was quite obviously due to the system by which juries were selected. Petitioner demonstrated that the underrepresentation of women in the final pool of prospective jurors was due to the operation of Missouri's exemption criteria—whether the automatic exemption for women or other statutory exemptions—as implemented in Jackson County. Women were therefore systematically underrepresented within the meaning of Taylor.25 III 20 The demonstration of a prima facie fair-cross-section violation by the defendant is not the end of the inquiry into whether a constitutional violation has occurred. We have explained that "States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury lists or panels are representative of the community." Taylor, 419 U.S., at 538, 95 S.Ct., at 701. However, we cautioned that "[t]he right to a proper jury cannot be overcome on merely rational grounds," id., at 534, 95 S.Ct., at 699, 700. Rather, it requires that a significant state interest be manifestly and primarily advanced by those aspects of the jury-selection process, such as exemption criteria, that result in the disproportionate exclusion of a distinctive group.26 21 The Supreme Court of Missouri suggested that the low percentage of women on jury venires in Jackson County may have been due to a greater number of women than of men qualifying for or claiming permissible exemptions, such as those for persons over 65, teachers, and government workers. 556 S.W.2d, at 16. Respondent further argues that petitioner has not proved that the exemption for woman had "any effect" on or was responsible for the underrepresentation of women on venires. Brief for Respondent 15. 22 However, once the defendant has made a prima facie showing of an infringement of his constitutional right to a jury drawn from a fair cross section of the community, it is the State that bears the burden of justifying this infringement by showing attainment of a fair cross section to be incompatible with a significant state interest. See Taylor, 419 U.S., at 533-535, 95 S.Ct., at 699-700. Assuming, arguendo, that the exemptions mentioned by the court below would justify failure to achieve a fair community cross section on jury venires, the State must demonstrate that these exemptions caused the underrepresentation complained of. The record contains no such proof, and mere suggestions or assertions to that effect are insufficient. 23 The other possible cause of the disproportionate exclusion of women on Jackson County jury venires is, of course, the automatic exemption for women. Neither the Missouri Supreme Court nor respondent in its brief has offered any substantial justification for this exemption. In response to questioning at oral argument, counsel for respondent ventured that the only state interest advanced by the exemption is safeguarding the important role played by women in home and family life.27 But exempting all women because of the preclusive domestic responsibilities of some women is insufficient justification for their disproportionate exclusion on jury venires. What we stated in Taylor with respect to the system there challenged under which women could "opt in" for jury service is equally applicable to Missouri's "opt out" exemption: 24 "It is untenable to suggest these days that it would be a special hardship for each and every woman to perform jury service or that society cannot spare any women from their present duties. This may be the case with many, and it may be burdensome to sort out those who should be exempted from those who should serve. But that task is performed in the case of men and the administrative convenience in dealing with women as a class is insufficient justification for diluting the quality of community judgment represented by the jury in criminal trials. 25 * * * * * 26 "If it was ever the case that women were unqualified to sit on juries or were so situated that none of them should be required to perform jury service, that time has long since passed." 419 U.S., at 534-535, 537, 95 S.Ct., at 700, 701 (footnote omitted). 27 We recognize that a State may have an important interest in assuring that those members of the family responsible for the care of children are available to do so. An exemption appropriately tailored to this interest would, we think, survive a fair-cross-section challenge. We stress, however, that the constitutional guarantee to a jury drawn from a fair cross section of the community requires that States exercise proper caution in exempting broad categories of persons from jury service. Although most occupational and other reasonable exemptions may inevitably involve some degree of overinclusiveness or underinclusiveness, any category expressly limited to a group in the community of sufficient magnitude and distinctiveness so as to be within the fair-cross-section requirement—such as women—runs the danger of resulting in underrepresentation sufficient to constitute a prima facie violation of that constitutional requirement. We also repeat the observation made in Taylor that it is unlikely that reasonable exemptions, such as those based on special hardship, incapacity, or community needs, "would pose substantial threats that the remaining pool of jurors would not be representative of the community." Id., at 534, 95 S.Ct., at 700. 28 The judgment of the Missouri Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. 29 So ordered. 30 Mr. Justice REHNQUIST, dissenting. 31 The Court steadfastly maintained in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), when it "distinguished" Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961), that its holding rested on the jury trial requirement of the Sixth and Fourteenth Amendments and not on the Equal Protection Clause of the Fourteenth Amendment. Today's decision makes a halfhearted effort to continue that fiction in footnotes 1 and 26, declaring that cases based on the Equal Protection Clause, such as Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972), are not "entirely analogous" to the case at hand. The difference apparently lies in the fact, among others, that under equal protection analysis prima facie challenges are rebuttable by proof of absence of intent to discriminate, while under Sixth Amendment analysis intent is irrelevant, but the State may show "adequate justification" for the disproportionate representation of the classes being compared. We are reminded, however, that disproportionality may not be justified "on merely rational grounds" and that justification requires that "a significant state interest be manifestly and primarily advanced" by the exemption criteria resulting in the disproportionate representation. Ante, at 367 (emphasis supplied). That this language has strong overtones of equal protection is demonstrated in this Court's most recent application of the Equal Protection Clause to distinctions between men and women: " '[C]lassifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives.' " Califano v. Goldfarb, 430 U.S. 199, 210-211, 97 S.Ct. 1021, 1029, 51 L.Ed.2d 270 (1977) (plurality opinion), quoting Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976) (emphasis supplied). The Constitution does not require, and our jurisprudence is ill served, by a hybrid doctrine such as that developed in Taylor, and in this case.* 32 Even if I were able to reconcile the Court's agile amalgamation of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment in deciding this case and Taylor, I have no little concern about where the road upon which the Court has embarked will ultimately lead. In Taylor, the Court relied upon cases dealing with outright exclusion of racial groups,Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940), and of women,Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946), from jury service. Although in Smith, the exclusion had been covert, in Ballard the exclusion had been overt. The Court in Taylor concluded, I assume on the basis of these cases, that "women cannot be systematically excluded from jury panels from which petit juries are drawn." 419 U.S., at 533, 95 S.Ct., at 699. 33 In Taylor, as in Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961), women had not been actually prohibited or excluded from serving on juries. But requirements, inapplicable to men, that they affirmatively make known to the jury commissioner their desire to serve had for all practical purposes had that effect. Indeed, in Taylor not one woman appeared on a venire of 175 persons drawn for jury service in the parish in question. 419 U.S., at 524, 95 S.Ct., at 694. Taylor, by its language and on its facts, was an "exclusion" case. 34 Here, on the other hand, the Court in one sentence both asserts that it can, and admits that it cannot, treat the system used in Jackson County, Mo., as one which "excludes" women, saying: "Today we hold that such systematic exclusion of women that results in jury venires averaging less than 15% female violates the Constitution's fair-cross-section requirement." Ante, at 360. If there are indeed 15% women on the jury panels in Jackson County, the Court uses the word "exclusion" contrary to any use of the word with which I am familiar. Women are undoubtedly underrepresented as compared to men on Jackson County juries, but therein lies the difference between this case and Taylor. 35 Eventually the Court either will insist that women be treated identically to men for purposes of jury selection (which is intimated in dicta, ante, at 365-366, 370), or in some later sequel to this line of cases will discover some peculiar magic in the number 15 that will enable it to distinguish between such a percentage and higher percentages less than 50. But whichever of these routes the Court chooses to travel when the question is actually presented, its decision today puts state legislators and local jury commissioners at a serious disadvantage wholly unwarranted by the constitutional provisions upon which it relies. If the Court ultimately concludes that men and women must be treated exactly alike for purposes of jury service, it will have imposed substantial burdens upon many women, particularly in less populated areas, without necessarily producing any corresponding increase in the representative character of jury panels. If it ultimately concludes that a percentage of women on jury panels greater than 15 but substantially less than 50 is permissible even though the State's jury selection system permits women but not men to "opt out" of jury service, it is simply playing a constitutional numbers game. 36 The attorneys general and prosecuting attorneys in the various States, sensibly concluding that a 15% representation of women on jury venires cannot in any rational legal system be materially different from a 20% representation, will press legislators and jury commissioners to abolish all distinctions between men and women for purposes of jury service. Understandably unhappy with the prospect of having still more convictions for armed robbery or murder set aside at the behest of male defendants claiming that women were insufficiently represented on their jury panel, these state attorneys will make their informed but inevitably parochial views known in the halls of their respective legislatures. These views will presumably be in harmony with those of the organized women's groups that have appeared as amici curiae in similar cases, asserting that the Constitution prohibits women from being given a choice as to whether they will serve on juries when men are required to serve. 37 Nor are distinctions between men and women in jury selections likely to be the only casualties to result from today's opinion. Apparently realizing the desirability of some predictability if otherwise fairly tried defendants are to be freed on the basis of such a constitutional numbers game, the Court ventures the view that an "exemption appropriately tailored" to the State's interest in ensuring that those members of the family responsible for the care of children are available to perform such care would "survive a fair-cross-section challenge." Ante, p. 370. It also repeats the "observation" made in Taylor that it is "unlikely that reasonable exemptions, such as those based on special hardship, incapacity, or community needs, 'would pose substantial threats that the remaining pool of jurors would not be representative of the community.' " Ibid. But the States are warned that the Constitution requires them to "exercise proper caution in exempting broad categories of persons from jury service," even though "most occupational and other reasonable exemptions may inevitably involve some degree of overinclusiveness or underinclusiveness . . . ." Ibid. 38 The lot of a legislator or judge attempting to conform a State's jury selection process to the dictates of today's opinion, and yet recognize what may be very valid state interests in excusing some individuals or classes of individuals from jury service, is surely not a happy one. Will the Court's above-quoted dicta soon meet the same fate that the decision in Hoyt v. Florida, supra, met in Taylor, or will they survive longer? 39 There is more than adequate documentation for the proposition that jury service is not a pleasant experience in many jurisdictions and that it tends to be time consuming and often seemingly useless from the point of view of the prospective juror. To the extent that States may engage in the process of jury selection by broad classifications, and by a system of exemptions which require a minimum of administrative effort, the frustrations of jury service will be at least in part alleviated, and perhaps the Court's stated goal of a "fair cross section" actually advanced. On the other hand, to the extent that such forms of selection are deemed constitutionally impermissible, and case-by-case "opting out" required with respect to each prospective juror, the ordeal of the prospective juror becomes more burdensome, and the State's administrative task more time consuming. Since most States will undoubtedly wish to immunize otherwise valid criminal convictions against reversal on the basis of the Court's most recent exegesis of the Fourteenth Amendment's requirements on the jury selection process, their natural tendency will be to impose these burdens on citizen jurors and judicial administrators in order to avoid any possibility of a successful constitutional attack on the composition of the jury. 40 The probability, then, is that today's decision will cause States to abandon not only gender-based but also occupation-based classifications for purposes of jury service. Doctors and nurses, though virtually irreplaceable in smaller communities, may ultimately be held by the Court to bring their own "flavor" or "indefinable something" to a jury venire. See supra, at 372 n. If so, they could then be exempted from jury service only on a case-by-case basis, and would join others with skills much less in demand whiling away their time in jury rooms of countless courthouses. 41 No one but a lawyer could think that this was a managerially sound solution to an important problem of judicial administration, and no one but a lawyer thoroughly steeped in the teachings of cases such as Taylor, Goldfarb, and Craig could think that such a solution was mandated by the United States Constitution. No large group of people can be conscripted to serve on juries nationwide, any more than in armies, without the use of broad general classifications which may not fit in every case the purpose for which the classification was designed. The alternative is case-by-case treatment which entails administrative burdens out of all proportion to the end sought to be achieved. 42 The short of it is that the only winners in today's decision are those in the category of petitioner, now freed of his conviction of first-degree murder. They are freed not because of any demonstrable unfairness at any stage of their trials, but because of the Court's obsession that criminal venires represent a "fair cross section" of the community, whatever that may be. The losers are the remaining members of that community—men and women seeking to do their duty as jurors and yet minimize the inconvenience that such service entails, judicial administrators striving to make the criminal justice system function, and the citizenry in general seeking the incarceration of those convicted of serious crimes after a fair trial. I do not believe that the Fourteenth Amendment was intended or should be interpreted to produce such a quixotic result. 1 See Taylor v. Louisiana, 419 U.S., at 526-531, 538, 95 S.Ct., at 695-698, 701; Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). A criminal defendant has standing to challenge exclusion resulting in a violation of the fair-cross-section requirement, whether or not he is a member of the excluded class. See Taylor, supra, 419 U.S., at 526, 95 S.Ct., at 695. 2 See La.Const., Art. VII, § 41 (1921), and La.Code Crim.Proc., Art. 402 (West 1967), reproduced in 419 U.S., at 523 nn. 1 and 2, 95 S.Ct., at 694 nn. 1 and 2. 3 Two other States, New Hampshire and Florida, had recently abolished similar provisions requiring otherwise qualified women to volunteer for jury service. See N.H.Rev.Stat.Ann. § 500:1 (1955), repealed by 1967 N.H.Laws, ch. 100, § 1; Fla.Stat. § 40.01(1) (1961), repealed by 1967 Fla.Laws, ch. 67-154, § 1. The current provisions are at N.H.Rev.Stat.Ann. § 500-A:2 (Supp.1977) (providing exemption for women caring for children under age 12); Fla.Stat. § 40.01(1) (1977) (providing exemption for pregnant women and women with children under age 15). 4 Ga.Code § 59-124 (1965); Mo.Const., Art. 1, § 22(b), Mo.Rev.Stat. § 494.031(2) (Supp.1978); N.Y.Jud.Law §§ 507(7), 599(7), 665(7) (McKinney 1964); R.I.Gen.Laws § 9-9-11 (1969); Tenn.Code Ann. § 22-101 (Supp.1978), § 22-108 (1955). In addition, Alabama did not allow women to serve on juries until 1966, see Ala.Code, Tit. 30, § 21 (1958), in which year they were provided an exemption "for good cause shown." 1966 Ala.Acts, p. 429, § 4; Ala.Code, Tit. 30, § 21 (Supp.1973). 5 1975 Ga.Laws, pp. 779-780; 1975 N.Y.Laws, chs. 4, 21; 1975 R.I.Pub.Laws, ch. 233, § 1. The current provisions relating to qualification for jury service are at Ga.Code Ann. § 59-112 (Supp.1978); N.Y.Jud.Law § 512 (McKinney Supp.1978); R.I.Gen.Laws §§ 9-9-1, 9-9-11 (Supp.1977). Alabama has replaced its exemption of women for cause, see n. 4, supra, with a general provision setting out qualifications for jury service. Ala.Code § 12-16-43 (1975). 6 The Tennessee Supreme Court has stated that the constitutionality of the exemption for women is "highly suspect" but has declined to test the exemption "pursuant to the principles announced in Taylor until a record is presented that reflects the consequences of [its] operation," Scharff v. State, 551 S.W.2d 671, 676 (1977). On at least one occasion, the Tennessee House of Representatives has passed a bill that would repeal that State's exemption for women, see H.R. 105, 89th Assembly, 1st Sess. (1975). See generally Daughtrey, Cross Sectionalism in Jury-Selection Procedures after Taylor v. Louisiana, 43 Tenn.L.Rev. 1, 49-50 (1975). 7 In Massachusetts, the court may excuse any woman requesting not to serve in a case involving sex crimes. Mass.Gen.Laws Ann., ch. 234, § 1A (West 1959). 8 Missouri Const., Art. 1, § 22(b), provides: "No citizen shall be disqualified from jury service because of sex, but the court shall excuse any woman who requests exemption therefrom before being sworn as a juror." This constitutional mandate is implemented by Mo.Rev.Stat. § 494.031(2) (Supp.1978), providing: "The following persons, shall, upon their timely application to the court, be excused from service as a juror, either grand or petit: * * * * * "(2) Any woman who requests exemption before being sworn as a juror." See also § 497.030 (Supp.1978) and n. 11, infra. 9 Felons, illiterates, attorneys, judges, members of the Armed Forces, and certain others are ineligible for jury service. Mo.Rev.Stat. § 494.020 (Supp.1978). 10 In addition to women, the following are exempted from jury service upon request: persons over age 65, medical doctors, clergy, teachers, persons who performed jury service within the preceding year, "[a]ny person whose absence from his regular place of employment would, in the judgment of the court, tend materially and adversely to affect the public safety, health, welfare or interest," and "any person upon whom service as a juror would in the judgment of the court impose an undue hardship." § 494.031 (Supp.1978). 11 The use and form of this questionnaire are prescribed by a state statute applicable only to Jackson County. § 497.130 (Supp.1978). 12 Ibid.; App. 43. 13 See n. 10, supra. 14 This practice in Jackson County with respect to women not appearing for service is not authorized by statute, and persons failing to report for jury service are subject to contempt of court, Mo.Rev.Stat. § 494.080 (1952). However, Mo.Const., Art. 1, § 22(b), allows a woman to claim exemption at any time "before being sworn as a juror," n. 8, supra. 15 The record does not reveal whether any summonses were mailed in November or December 1975. 16 The smallest percentage of women appearing on a jury venue, 7.3%, occurred the first week in January 1976 (12 women of 164 appearing), and the largest percentage of women appearing, 21.8%, occurred in March 1976 (32 women of 147 appearing). App. 8, 45. 17 556 S.W.2d 11, 16 (Mo.1977). 18 Brief for Respondent 5. 19 The decision below also rejected petitioner's challenge under the Equal Protection Clause of the Fourteenth Amendment. This challenge has not been renewed before this Court. 20 We further explained that this requirement does not mean "that petit juries actually chosen must mirror the community," 419 U.S., at 538, 95 S.Ct., at 702. 21 Under Louisiana law at the time of appellant Taylor's trial, all persons not indicted for or convicted of a felony, who were 21 years of age or older, and who were literate in English and physically and mentally capable were eligible for jury duty. La.Code Crim.Proc., Art. 401 (West 1967). 22 This speculation is belied by the U. S. Dept. of Commerce, Bureau of the Census, Current Population Reports: Voting and Registration in the Election of November 1976, Table 5 (1978), showing that 69.9% of the women and 71.1% of the men in Missouri are registered to vote. 23 The opinion below found additional fault with the census data in that voter registration lists include persons aged 18 to 21, while the census data included only persons 21 years of age and older. See 556 S.W.2d, at 16. However, the 1970 census data not only included a summary row showing that 54% of persons 21 years of age and older were women, but also included data showing that an even greater percentage of persons between the ages of 18 and 21 were women. App. 39. In any event, the fair-cross-section requirement involves a comparison of the makeup of jury venires or other sources from which jurors are drawn with the makeup of the community, not of voter registration lists. 24 We have previously accepted 6-year-old census data as adequate proof of the percentage of eligible jurors who are black. Alexander v. Louisiana, 405 U.S. 625, 627, 92 S.Ct. 1221, 1223, 31 L.Ed.2d 536 (1972). That case involved an equal protection challenge to a jury-selection process. Although proof of such a claim is in certain respects not analogous to proof of a cross-section violation, see n. 26, infra, Alexander, like the case at hand, involved establishing as a benchmark the percentage of the excluded group in the relevant population. 25 The Federal District Court encompassing Jackson County does not have an automatic exemption for women, but does provide occupational exemptions similar to those provided by the State of Missouri, and also has a childcare exemption—albeit, one limited to women. See Amended Plans of the United States District Court for the Western District of Missouri for Random Selection and Service of Grand and Petit Jurors § 14 (1972). Fifty-three percent of the persons on the master jury wheel and 39.8% of actual jurors are women. See 556 S.W.2d at 24, and nn. 3, 4 (Seiler, J., dissenting). 26 In arguing that the reduction in the number of women available as jurors from approximately 54% of the community to 14.5% of jury venires is prima facie proof of "unconstitutional underrepresentation," petitioner and the United States, as amicus curiae, cite Castaneda v. Partida, 430 U.S. 482, 496, 97 S.Ct. 1272, 1281, 51 L.Ed.2d 498 (1977); Alexander v. Louisiana, supra, 405 U.S., at 629, 92 S.Ct., at 1224; Turner v. Fouche, 396 U.S. 346, 359, 90 S.Ct. 532, 539, 24 L.Ed.2d 567 (1970); and Whitus v. Georgia, 385 U.S. 545, 552, 87 S.Ct. 643, 647, 17 L.Ed.2d 599 (1967). Those equal protection challenges to jury selection and composition are not entirely analogous to the case at hand. In the cited cases, the significant discrepancy shown by the statistics not only indicated discriminatory effect but also was one form of evidence of another essential element of the constitutional violation—discriminatory purpose. Such evidence is subject to rebuttal evidence either that discriminatory purpose was not involved or that such purpose did not have a determinative effect. See Castaneda, supra, 430 U.S., at 493-495, 97 S.Ct., at 1279-1280; Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). In contrast, in Sixth Amendment fair-cross-section cases, systematic disproportion itself demonstrates an infringement of the defendant's interest in a jury chosen from a fair community cross section. The only remaining question is whether there is adequate justification for this infringement. 27 Tr. of Oral Arg. 28. * That the majority is in truth concerned with the equal protection rights of women to participate in the judicial process rather than with the Sixth Amendment right of a criminal defendant to be tried by an "impartial jury" is vividly demonstrated by the Court's crablike movement from the equal protection analysis of its early jury composition cases to the internally inconsistent "fair-cross-section" rationale of today's due process decision. As early as 1880, this Court recognized that blacks as a class are no less qualified to sit on juries than whites and that a State cannot, consistent with the Equal Protection Clause, compel a criminal defendant "to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects . . .." Strauder v. West Virginia, 100 U.S. 303, 309, 25 L.Ed. 664 (emphasis added). Likewise, as the majority recognizes, ante, at 369-370, women as a class are every bit as qualified as men to serve as jurors. If, then, men and women are essentially fungible for purposes of jury duty, the question arises how underrepresentation of either sex on the jury or the venire infringes on a defendant's right to have his fate decided by an impartial tribunal. Counsel for petitioner, when asked at oral argument to explain the difference, from the defendant's point of view, between men and women jurors, offered: "It is that indefinable something—. . . I think that we perhaps all understand it when we see it and when we feel it, but it is not that easy to describe; yes, there is a difference." Tr. of Oral Arg. 15. This Court resorted to similar mystical incantations in Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). Because the white defendant lacked standing to raise an equal protection challenge to the systematic exclusion of blacks from jury duty, the Court was forced to turn to the Due Process Clause of the Fourteenth Amendment. Noting that the effect of excluding any large and identifiable segment of the community from jury service "is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable," the Court held that a criminal defendant, whatever his race, has standing to raise a due process challenge to the systematic exclusion of any race from jury service. Id., at 503, 92 S.Ct., at 2168. Similarly, in Taylor v. Louisiana, 419 U.S. 522, 532, 95 S.Ct. 692, 698, 42 L.Ed.2d 690 (1975), the Court based its reversal of a male defendant's conviction largely on the transcendental notion that "a flavor, a distinct quality" was absent from his jury panel due to the underrepresentation of women. Lacking the Court's omniscience, I would be willing to accept its assurances as to the existence of "unknowable" qualities of human nature, "flavor[s]," and "indefinable something[s]." But close analysis of the fair-cross-section doctrine demonstrates that the Court itself does not really believe in such mysticism. For if "that indefinable something" were truly an essential element of the due process right to trial by an impartial jury, a defendant would be entitled to a jury composed of men and women in perfect proportion to their numbers in the community. Yet in Taylor, supra, at 538, 95 S.Ct., at 702, the majority stressed: "Defendants are not entitled to a jury of any particular composition, . . . but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." Thus, a defendant's constitutional right to an impartial jury is protected so long as "that indefinable something" supposedly crucial to impartiality is adequately represented on the jury venire; that the petit jury ultimately struck is composed of one sex is irrelevant. Indeed, under the majority's fair-cross-section analysis, the underrepresentation of women on jury venires in Jackson County, Mo., would entitle petitioner Duren to reversal of his conviction even if the jury chosen in his case had been composed of all women. The Sixth and Fourteenth Amendments guarantee a criminal defendant the right to be tried by an impartial jury. If impartiality is not lost because a particular class or group represented in the community is unrepresented on the petit jury, it is certainly not lost because the class or group is underrepresented on the jury venire. It is therefore clear that the majority's fair-cross-section rationale is not concerned with the defendant's due process right to an impartial jury at all. Instead, the requirement that distinct segments of the community be represented on jury venires is concerned with the equal protection right of the excluded class to participate in the judicial process through jury service. The reversal of concededly fair convictions returned by concededly impartial juries is, to say the least, an irrational means of vindicating the equal protection rights of those unconstitutionally excluded from jury service. Nor is it a necessary means to achieve that end, for in Carter v. Jury Comm'n, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970), this Court recognized that injunctive relief is available to members of a class unconstitutionally excluded from jury service.

12

439 U.S. 322 99 S.Ct. 645 58 L.Ed.2d 552 PARKLANE HOSIERY COMPANY, INC., et al., Petitioners,v.Leo M. SHORE. No. 77-1305. Argued Oct. 30, 1978. Decided Jan. 9, 1979. Syllabus Respondent brought this stockholder's class action in the District Court for damages and other relief against petitioners, a corporation, its officers, directors, and stockholders, who allegedly had issued a materially false and misleading proxy statement in violation of the federal securities laws and Securities and Exchange Commission (SEC) regulations. Before the action came to trial the SEC sued the same defendants in the District Court alleging that the proxy statement was materially false and misleading in essentially the same respects as respondent had claimed. The District Court after a nonjury trial entered a declaratory judgment for the SEC, and the Court of Appeals affirmed. Respondent in this case then moved for partial summary judgment against petitioners, asserting that they were collaterally estopped from relitigating the issues that had been resolved against them in the SEC suit. The District Court denied the motion on the ground that such an application of collateral estoppel would deny petitioners their Seventh Amendment right to a jury trial. The Court of Appeals reversed. Held : 1. Petitioners, who had a "full and fair" opportunity to litigate their claims in the SEC action, are collaterally estopped from relitigating the question of whether the proxy statement was materially false and misleading. Pp. 648-652. (a) The mutuality doctrine, under which neither party could use a prior judgment against the other unless both parties were bound by the same judgment, no longer applies. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788. Pp. 648-650. (b) The offensive use of collateral estoppel (when, as here, the plaintiff seeks to foreclose the defendant from litigating an issue that the defendant has previously litigated unsuccessfully in an action with another party) does not promote judicial economy in the same manner that is promoted by defensive use (when a defendant seeks to prevent a plaintiff from asserting a claim that the plaintiff has previously litigated and lost against another defendant), and such offensive use may also be unfair to a defendant in various ways. Therefore, the general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where the application of offensive estoppel would be unfair to a defendant, a trial judge in the exercise of his discretion should not allow the use of offensive collateral estoppel. Pp. 650-652. (c) In this case, however, the application of offensive collateral estoppel will not reward a private plaintiff who could have joined in the previous action, since the respondent probably could not have joined in the injunctive action brought by the SEC. Nor is there any unfairness to petitioners in such application here, since petitioners had every incentive fully and vigorously to litigate the SEC suit; the judgment in the SEC action was not inconsistent with any prior decision; and in the respondent's action there will be no procedural opportunities available to the petitioners that were unavailable in the SEC action of a kind that might be likely to cause a different result. Pp. 651-652. 2. The use of collateral estoppel in this case would not violate petitioners' Seventh Amendment right to a jury trial. Pp. 652-655. (a) An equitable determination can have collateral-estoppel effect in a subsequent legal action without violating the Seventh Amendment. Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391. Pp. 652-653. (b) Petitioners' contention that since the scope of the Seventh Amendment must be determined by reference to the common law as it existed in 1791, at which time collateral estoppel was permitted only where there was mutuality of parties, is without merit, for many procedural devices developed since 1791 that have diminished the civil jury's historic domain have been found not to violate the Seventh Amendment. See, e. g., Galloway v. United States, 319 U.S. 372, 388-393, 63 S.Ct. 1077, 87 L.Ed. 1458. Pp. 653-654. 565 F.2d 815, affirmed. Jack B. Levitt, New York City, for petitioners. Samuel K. Rosen, New York City, for respondent. Mr. Justice STEWART delivered the opinion of the Court. 1 This case presents the question whether a party who has had issues of fact adjudicated adversely to it in an equitable action may be collaterally estopped from relitigating the same issues before a jury in a subsequent legal action brought against it by a new party. 2 The respondent brought this stockholder's class action against the petitioners in a Federal District Court. The complaint alleged that the petitioners, Parklane Hosiery Co., Inc. (Parklane), and 13 of its officers, directors, and stockholders, had issued a materially false and misleading proxy statement in connection with a merger.1 The proxy statement, according to the complaint, had violated §§ 14(a), 10(b), and 20(a) of the Securities Exchange Act of 1934, 48 Stat. 895, 891, 899, as amended, 15 U.S.C. §§ 78n(a), 78j(b), and 78t(a), as well as various rules and regulations promulgated by the Securities and Exchange Commission (SEC). The complaint sought damages, rescission of the merger, and recovery of costs. 3 Before this action came to trial, the SEC filed suit against the same defendants in the Federal District Court, alleging that the proxy statement that had been issued by Parklane was materially false and misleading in essentially the same respects as those that had been alleged in the respondent's complaint. Injunctive relief was requested. After a 4-day trial, the District Court found that the proxy statement was materially false and misleading in the respects alleged, and entered a declaratory judgment to that effect. SEC v. Parklane Hosiery Co., 422 F.Supp. 477. The Court of Appeals for the Second Circuit affirmed this judgment. 558 F.2d 1083. 4 The respondent in the present case then moved for partial summary judgment against the petitioners, asserting that the petitioners were collaterally estopped from relitigating the issues that had been resolved against them in the action brought by the SEC.2 The District Court denied the motion on the ground that such an application of collateral estoppel would deny the petitioners their Seventh Amendment right to a jury trial. The Court of Appeals for the Second Circuit reversed, holding that a party who has had issues of fact determined against him after a full and fair opportunity to litigate in a nonjury trial is collaterally estopped from obtaining a subsequent jury trial of these same issues of fact. 565 F.2d 815. The appellate court concluded that "the Seventh Amendment preserves the right to jury trial only with respect to issues of fact, [and] once those issues have been fully and fairly adjudicated in a prior proceeding, nothing remains for trial, either with or without a jury." Id., at 819. Because of an inter-circuit conflict,3 we granted certiorari. 435 U.S. 1006, 98 S.Ct. 1875, 56 L.Ed.2d 387. 5 * The threshold question to be considered is whether, quite apart from the right to a jury trial under the Seventh Amendment, the petitioners can be precluded from relitigating facts resolved adversely to them in a prior equitable proceeding with another party under the general law of collateral estoppel. Specifically, we must determine whether a litigant who was not a party to a prior judgment may nevertheless use that judgment "offensively" to prevent a defendant from relitigating issues resolved in the earlier proceeding.4 6 Collateral estoppel, like the related doctrine of res judicata,5 has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328-329, 91 S.Ct. 1434, 1442-1443, 28 L.Ed.2d 788. Until relatively recently, however, the scope of collateral estoppel was limited by the doctrine of mutuality of parties. Under this mutuality doctrine, neither party could use a prior judg ment as an estoppel against the other unless both parties were bound by the judgment.6 Based on the premise that it is somehow unfair to allow a party to use a prior judgment when he himself would not be so bound,7 the mutuality requirement provided a party who had litigated and lost in a previous action an opportunity to relitigate identical issues with new parties. 7 By failing to recognize the obvious difference in position between a party who has never litigated an issue and one who has fully litigated and lost, the mutuality requirement was criticized almost from its inception.8 Recognizing the validity of this criticism, the Court in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, supra, abandoned the mutuality requirement, at least in cases where a patentee seeks to relitigate the validity of a patent after a federal court in a previous lawsuit has already declared it invalid.9 The "broader question" before the Court, however, was "whether it is any longer tenable to afford a litigant more than one full and fair opportunity for judicial resolution of the same issue." 402 U.S., at 328, 91 S.Ct., at 1442. The Court strongly suggested a negative answer to that question: 8 "In any lawsuit where a defendant, because of the mutuality principle, is forced to present a complete defense on the merits to a claim which the plaintiff has fully litigated and lost in a prior action, there is an arguable misallocation of resources. To the extent the defendant in the second suit may not win by asserting, without contradiction, that the plaintiff had fully and fairly, but unsuccessfully, litigated the same claim in the prior suit, the defendant's time and money are diverted from alternative uses—productive or otherwise—to relitigation of a decided issue. And, still assuming that the issue was resolved correctly in the first suit, there is reason to be concerned about the plaintiff's allocation of resources. Permitting repeated litigation of the same issue as long as the supply of unrelated defendants holds out reflects either the aura of the gaming table or 'a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure.' Kerotest Mfg. Co. v. C-O-Two Co., 342 U.S. 180, 185, 72 S.Ct. 219, 222, 96 L.Ed. 200 (1952). Although neither judges, the parties, nor the adversary system performs perfectly in all cases, the requirement of determining whether the party against whom an estoppel is asserted had a full and fair opportunity to litigate is a most significant safeguard." Id., at 329, 91 S.Ct., at 1443.10 B 9 The Blonder-Tongue case involved defensive use of collateral estoppel—a plaintiff was estopped from asserting a claim that the plaintiff had previously litigated and lost against another defendant. The present case, by contrast, involves offensive use of collateral estoppel—a plaintiff is seeking to estop a defendant from relitigating the issues which the defendant previously litigated and lost against another plaintiff. In both the offensive and defensive use situations, the party against whom estoppel is asserted has litigated and lost in an earlier action. Nevertheless, several reasons have been advanced why the two situations should be treated differently.11 10 First, offensive use of collateral estoppel does not promote judicial economy in the same manner as defensive use does. Defensive use of collateral estoppel precludes a plaintiff from relitigating identical issues by merely "switching adversaries." Bernhard v. Bank of America Nat. Trust & Savings Assn., 19 Cal.2d, at 813, 122 P.2d, at 895.12 Thus defensive collateral estoppel gives a plaintiff a strong incentive to join all potential defendants in the first action if possible. Offensive use of collateral estoppel, on the other hand, creates precisely the opposite incentive. Since a plaintiff will be able to rely on a previous judgment against a defendant but will not be bound by that judgment if the defendant wins, the plaintiff has every incentive to adopt a "wait and see" attitude, in the hope that the first action by another plaintiff will result in a favorable judgment. E. g., Nevarov v. Caldwell, 161 Cal.App.2d 762, 767-768, 327 P.2d 111, 115; Reardon v. Allen, 88 N.J.Super. 560, 571-572, 213 A.2d 26, 32. Thus offensive use of collateral estoppel will likely increase rather than decrease the total amount of litigation, since potential plaintiffs will have everything to gain and nothing to lose by not intervening in the first action.13 11 A second argument against offensive use of collateral estoppel is that it may be unfair to a defendant. If a defendant in the first action is sued for small or nominal damages, he may have little incentive to defend vigorously, particularly if future suits are not foreseeable. The Evergreens v. Nunan, 141 F.2d 927, 929 (CA2); cf. Berner v. British Commonwealth Pac. Airlines, 346 F.2d 532 (CA2) (application of offensive collateral estoppel denied where defendant did not appeal an adverse judgment awarding damages of $35,000 and defendant was later sued for over $7 million). Allowing offensive collateral estoppel may also be unfair to a defendant if the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant.14 Still another situation where it might be unfair to apply offensive estoppel is where the second action affords the defendant procedural opportunities unavailable in the first action that could readily cause a different result.15 C 12 We have concluded that the preferable approach for dealing with these problems in the federal courts is not to preclude the use of offensive collateral estoppel, but to grant trial courts broad discretion to determine when it should be applied.16 The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel. 13 In the present case, however, none of the circumstances that might justify reluctance to allow the offensive use of collateral estoppel is present. The application of offensive collateralestoppel will not here reward a private plaintiff who could have joined in the previous action, since the respondent probably could not have joined in the injunctive action brought by the SEC even had he so desired.17 Similarly, there is no unfairness to the petitioners in applying offensive collateral estoppel in this case. First, in light of the serious allegations made in the SEC's complaint against the petitioners, as well as the foreseeability of subsequent private suits that typically follow a successful Government judgment, the petitioners had every incentive to litigate the SEC lawsuit fully and vigorously.18 Second, the judgment in the SEC action was not inconsistent with any previous decision. Finally, there will in the respondent's action be no procedural opportunities available to the petitioners that were unavailable in the first action of a kind that might be likely to cause a different result.19 14 We conclude, therefore, that none of the considerations that would justify a refusal to allow the use of offensive collateral estoppel is present in this case. Since the petitioners received a "full and fair" opportunity to litigate their claims in the SEC action, the contemporary law of collateral estoppel leads inescapably to the conclusion that the petitioners are collaterally estopped from relitigating the question of whether the proxy statement was materially false and misleading. II 15 The question that remains is whether, notwithstanding the law of collateral estoppel, the use of offensive collateral estoppel in this case would violate the petitioners' Seventh Amendment right to a jury trial.20 16 "[T]he thrust of the [Seventh] Amendment was to preserve the right to jury trial as it existed in 1791." Curtis v. Loether, 415 U.S. 189, 193, 94 S.Ct. 1005, 1007, 39 L.Ed.2d 260. At common law, a litigant was not entitled to have a jury determine issues that had been previously adjudicated by a chancellor in equity. Hopkins v. Lee, 6 Wheat. 109; Smith v. Kernochen, 7 How. 198, 217-218, 12 L.Ed. 666; Brady v. Daly, 175 U.S. 148, 158-159, 20 S.Ct. 62, 66, 44 L.Ed. 109; Shapiro & Coquillette, The Fetish of Jury Trial in Civil Cases: A Comment on Rachal v. Hill, 85 Harv.L.Rev. 442, 448-458 (1971).21 17 Recognition that an equitable determination could have collateral-estoppel effect in a subsequent legal action was the major premise of this Court's decision in Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988. In that case the plaintiff sought a declaratory judgment that certain arrangements between it and the defendant were not in violation of the antitrust laws, and asked for an injunction to prevent the defendant from instituting an antitrust action to challenge the arrangements. The defendant denied the allegations and counterclaimed for treble damages under the antitrust laws, requesting a trial by jury of the issues common to both the legal and equitable claims. The Court of Appeals upheld denial of the request, but this Court reversed, stating: 18 "[T]he effect of the action of the District Court could be, as the Court of Appeals believed, 'to limit the petitioner's opportunity fully to try to a jury every issue which has a bearing upon its treble damage suit,' for determination of the issue of clearances by the judge might 'operate either by way of res judicata or collateral estoppel so as to conclude both parties with respect thereto at the subsequent trial of the treble damage claim.' " Id., at 504, 79 S.Ct., at 953. 19 It is thus clear that the Court in the Beacon Theatres case thought that if an issue common to both legal and equitable claims was first determined by a judge, relitigation of the issue before a jury might be foreclosed by res judicata or collateral estoppel. To avoid this result, the Court held that when legal and equitable claims are joined in the same action, the trial judge has only limited discretion in determining the sequence of trial and "that discretion . . . must, wherever possible, be exercised to preserve jury trial." Id., at 510, 79 S.Ct., at 956.22 20 Both the premise of Beacon Theatres, and the fact that it enunciated no more than a general prudential rule were confirmed by this Court's decision in Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391. In that case the Court held that a bankruptcy court, sitting as a statutory court of equity, is empowered to adjudicate equitable claims prior to legal claims, even though the factual issues decided in the equity action would have been triable by a jury under the Seventh Amendment if the legal claims had been adjudicated first. The Court stated: 21 "Both Beacon Theatres and Dairy Queen recognize that there might be situations in which the Court could proceed to resolve the equitable claim first even though the results might be dispositive of the issues involved in the legal claim." Id., at 339, 86 S.Ct., at 478. 22 Thus the Court in Katchen v. Landy recognized that an equitable determination can have collateral-estoppel effect in a subsequent legal action and that this estoppel does not violate the Seventh Amendment. B 23 Despite the strong support to be found both in history and in the recent decisional law of this Court for the proposition that an equitable determination can have collateral-estoppel effect in a subsequent legal action, the petitioners argue that application of collateral estoppel in this case would nevertheless violate their Seventh Amendment right to a jury trial. The petitioners contend that since the scope of the Amendment must be determined by reference to the common law as it existed in 1791, and since the common law permitted collateral estoppel only where there was mutuality of parties, collateral estoppel cannot constitutionally be applied when such mutuality is absent. 24 The petitioners have advanced no persuasive reason, however, why the meaning of the Seventh Amendment should depend on whether or not mutuality of parties is present. A litigant who has lost because of adverse factual findings in an equity action is equally deprived of a jury trial whether he is estopped from relitigating the factual issues against the same party or a new party. In either case, the party against whom estoppel is asserted has litigated questions of fact, and has had the facts determined against him in an earlier proceeding. In either case there is no further factfinding function for the jury to perform, since the common factual issues have been resolved in the previous action. Cf. Ex parte Peterson, 253 U.S. 300, 310, 40 S.Ct. 543, 547, 64 L.Ed. 919 ("No one is entitled in a civil case to trial by jury, unless and except so far as there are issues of fact to be determined"). 25 The Seventh Amendment has never been interpreted in the rigid manner advocated by the petitioners. On the contrary, many procedural devices developed since 1791 that have diminished the civil jury's historic domain have been found not to be inconsistent with the Seventh Amendment. See Galloway v. United States, 319 U.S. 372, 388-393, 63 S.Ct. 1077, 1086-1088, 87 L.Ed. 1458 (directed verdict does not violate the Seventh Amendment); Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 497-498, 51 S.Ct. 513-514, 75 L.Ed. 1188 (retrial limited to question of damages does not violate the Seventh Amendment even though there was no practice at common law for setting aside a verdict in part); Fidelity & Deposit Co. v. United States, 187 U.S. 315, 319-321, 23 S.Ct. 120, 121-122, 47 L.Ed. 194 (summary judgment does not violate the Seventh Amendment).23 26 The Galloway case is particularly instructive. There the party against whom a directed verdict had been entered argued that the procedure was unconstitutional under the Seventh Amendment. In rejecting this claim, the Court said: 27 "The Amendment did not bind the federal courts to the exact procedural incidents or details of jury trial according to the common law in 1791, any more than it tied them to the common-law system of pleading or the specific rules of evidence then prevailing. Nor were 'the rules of the common law' then prevalent, including those relating to the procedure by which the judge regulated the jury's role on questions of fact, crystalized in a fixed and immutable system. . . . 28 "The more logical conclusion, we think, and the one which both history and the previous decisions here support, is that the Amendment was designed to preserve the basic institution of jury trial in only its most fundamental elements, not the great mass of procedural forms and details, varying even then so widely among common-law jurisdictions." 319 U.S., at 390, 392, 63 S.Ct., at 1087 (footnote omitted). 29 The law of collateral estoppel, like the law in other procedural areas defining the scope of the jury's function, has evolved since 1791. Under the rationale of the Galloway case, these developments are not repugnant to the Seventh Amendment simply for the reason that they did not exist in 1791. Thus if, as we have held, the law of collateral estoppel forecloses the petitioners from relitigating the factual issues determined against them in the SEC action, nothing in the Seventh Amendment dictates a different result, even though because of lack of mutuality there would have been no collateral estoppel in 1791.24 The judgment of the Court of Appeals is 30 Affirmed. 31 Mr. Justice REHNQUIST, dissenting. 32 It is admittedly difficult to be outraged about the treatment accorded by the federal judiciary to petitioners' demand for a jury trial in this lawsuit. Outrage is an emotion all but impossible to generate with respect to a corporate defendant in a securities fraud action, and this case is no exception. But the nagging sense of unfairness as to the way petitioners have been treated, engendered by the imprimatur placed by the Court of Appeals on respondent's "heads I win, tails you lose" theory of this litigation, is not dispelled by this Court's antiseptic analysis of the issues in the case. It may be that if this Nation were to adopt a new Constitution today, the Seventh Amendment guaranteeing the right of jury trial in civil cases in federal courts would not be included among its provisions. But any present sentiment to that effect cannot obscure or dilute our obligation to enforce the Seventh Amendment, which was included in the Bill of Rights in 1791 and which has not since been repealed in the only manner provided by the Constitution for repeal of its provisions. 33 The right of trial by jury in civil cases at common law is fundamental to our history and jurisprudence. Today, however, the Court reduces this valued right, which Blackstone praised as "the glory of the English law," to a mere "neutral" factor and in the name of procedural reform denies the right of jury trial to defendants in a vast number of cases in which defendants, heretofore, have enjoyed jury trials. Over 35 years ago, Mr. Justice Black lamented the "gradual process of judicial erosion which in one hundred fifty years has slowly worn away a major portion of the essential guarantee of the Seventh Amendment." Galloway v. United States, 319 U.S. 372, 397, 63 S.Ct. 1077, 1090, 87 L.Ed. 1458 (1943) (dissenting opinion). Regrettably, the erosive process continues apace with today's decision.1 34 * The Seventh Amendment provides: 35 "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." 36 The history of the Seventh Amendment has been amply documented by this Court and by legal scholars,2 and it would serve no useful purpose to attempt here to repeat all that has been written on the subject. Nonetheless, the decision of this case turns on the scope and effect of the Seventh Amendment, which, perhaps more than with any other provision of the Constitution, are determined by reference to the historical setting in which the Amendment was adopted. See Colgrove v. Battin, 413 U.S. 149, 152, 93 S.Ct. 2448, 2450, 37 L.Ed.2d 522 (1973). It therefore is appropriate to pause to review, albeit briefly, the circumstances preceding and attending the adoption of the Seventh Amendment as a guide in ascertaining its application to the case at hand. 37 It is perhaps easy to forget, now more than 200 years removed from the events, that the right of trial by jury was held in such esteem by the colonists that its deprivation at the hands of the English was one of the important grievances leading to the break with England. See Sources and Documents Illustrating the American Revolution 1764-1788 and the Formation of the Federal Constitution 94 (S. Morison 2d ed. 1929); R. Pound, The Development of Constitutional Guarantees of Liberty 69-72 (1957); C. Ubbelohde, The Vice-Admiralty Courts and the American Revolution 208-211 (1960). The extensive use of vice-admiralty courts by colonial administrators to eliminate the colonists' right of jury trial was listed among the specific offensive English acts denounced in the Declaration of Independence.3 And after war had broken out, all of the 13 newly formed States restored the institution of civil jury trial to its prior prominence; 10 expressly guaranteed the right in their state constitutions and the 3 others recognized it by statute or by common practice.4 Indeed, "[t]he right to trial by jury was probably the only one universally secured by the first American state constitutions . . . ." L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 281 (1960).5 38 One might justly wonder then why no mention of the right of jury trial in civil cases should have found its way into the Constitution that emerged from the Philadelphia Convention in 1787. Article III, § 2, cl. 3, merely provides that "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." The omission of a clause protective of the civil jury right was not for lack of trying, however. Messrs. Pinckney and Gerry proposed to provide a clause securing the right of jury trial in civil cases, but their efforts failed.6 Several reasons have been advanced for this failure. The Federalists argued that the practice of civil juries among the several States varied so much that it was too difficult to draft constitutional language to accommodate the different state practices. See Colgrove v. Battin, supra, at 153, 93 S.Ct., at 2450.7 Whatever the reason for the omission, however, it is clear that even before the delegates had left Philadelphia, plans were under way to attack the proposed Constitution on the ground that it failed to contain a guarantee of civil jury trial in the new federal courts. See R. Rutland, George Mason 91 (1961); Wolfram 662. 39 The virtually complete absence of a bill of rights in the proposed Constitution was the principal focus of the Anti-Federalists' attack on the Constitution, and the lack of a provision for civil juries featured prominently in their arguments. See Parsons v. Bedford, 3 Pet. 433, 445, 7 L.Ed. 732 (1830). Their pleas struck a responsive chord in the populace, and the price exacted in many States for approval of the Constitution was the appending of a list of recommended amendments, chief among them a clause securing the right of jury trial in civil cases.8 Responding to the pressures for a civil jury guarantee generated during the ratification debates, the first Congress under the new Constitution at its first session in 1789 proposed to amend the Constitution by adding the following language: "In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate." 1 Annals of Cong. 435 (1789). That provision, altered in language to what became the Seventh Amendment, was proposed by the Congress in 1789 to the legislatures of the several States and became effective with its ratification by Virginia on December 15, 1791.9 40 The foregoing sketch is meant to suggest what many of those who oppose the use of juries in civil trials seem to ignore. The founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.10 Those who passionately advocated the right to a civil jury trial did not do so because they considered the jury a familiar procedural device that should be continued; the concerns for the institution of jury trial that led to the passages of the Declaration of Independence and to the Seventh Amendment were not animated by a belief that use of juries would lead to more efficient judicial administration. Trial by a jury of laymen rather than by the sovereign's judges was important to the founders because juries represent the layman's common sense, the "passional elements in our nature," and thus keep the administration of law in accord with the wishes and feelings of the community. O. Holmes, Collected Legal Papers 237 (1920). Those who favored juries believed that a jury would reach a result that a judge either could not or would not reach.11 It is with these values that underlie the Seventh Amendment in mind that the Court should, but obviously does not, approach the decision of this case. B 41 The Seventh Amendment requires that the right of trial by jury be "preserved." Because the Seventh Amendment demands preservation of the jury trial right, our cases have uniformly held that the content of the right must be judged by historical standards. E. g., Curtis v. Loether, 415 U.S. 189, 193, 94 S.Ct. 1005, 1007, 39 L.Ed.2d 260 (1974); Colgrove v. Battin, 413 U.S., at 155-156, 93 S.Ct., at 2451-2452; Ross v. Bernhard, 396 U.S. 531, 533, 90 S.Ct. 733, 735, 24 L.Ed.2d 729 (1970); Capital Traction Co. v. Hof, 174 U.S. 1, 8-9, 19 S.Ct. 580, 583, 43 L.Ed. 873 (1899); Parsons v. Bedford, supra, 3 Pet., at 446. Thus, in Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657, 55 S.Ct. 890, 891, 79 L.Ed. 1636 (1935), the Court stated that "[t]he right of trial by jury thus preserved is the right which existed under the English common law when the amendment was adopted." And in Dimick v. Schiedt, 293 U.S. 474, 476, 55 S.Ct. 296, 297, 79 L.Ed. 603 (1935), the Court held: "In order to ascertain the scope and meaning of the Seventh Amendment, resort must be had to the appropriate rules of the common law established at the time of the adoption of that constitutional provision in 1791."12 If a jury would have been impaneled in a particular kind of case in 1791, then the Seventh Amendment requires a jury trial today, if either party so desires. 42 To be sure, it is the substance of the right of jury trial that is preserved, not the incidental or collateral effects of common-law practice in 1791. Walker v. New Mexico & S. P. R. Co., 165 U.S. 593, 596, 17 S.Ct. 421, 422, 41 L.Ed. 837 (1897). "The aim of the amendment, as this Court has held, is to preserve the substance of the common-law right of trial by jury, as distinguished from mere matters of form or procedure, and particularly to retain the common-law distinction between the province of the court and that of the jury . . . ." Baltimore & Carolina Line v. Redman, supra, 295 U.S., at 657, 55 S.Ct., at 891. Accord, Colgrove v. Battin, supra, 413 U.S., at 156-157, 93 S.Ct. at, 2452-2453; Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 498, 51 S.Ct. 513, 514, 75 L.Ed. 1188 (1931); Ex parte Peterson, 253 U.S. 300, 309, 40 S.Ct. 543, 546, 64 L.Ed. 919 (1920). "The Amendment did not bind the federal courts to the exact procedural incidents or details of jury trial according to the common law of 1791, any more than it tied them to the common-law system of pleading or the specific rules of evidence then prevailing." Galloway v. United States, 319 U.S., at 390, 63 S.Ct., at 1087. 43 To say that the Seventh Amendment does not tie federal courts to the exact procedure of the common law in 1791 does not imply, however, that any nominally "procedural" change can be implemented, regardless of its impact on the functions of the jury. For to sanction creation of procedural devices which limit the province of the jury to a greater degree than permitted at common law in 1791 is in direct contravention of the Seventh Amendment. See Neely v. Martin K. Eby Constr. Co., 386 U.S. 317, 322, 87 S.Ct. 1072, 1076, 18 L.Ed.2d 75 (1967); Galloway v. United States, supra, 319 U.S., at 395, 63 S.Ct., at 1089; Dimick v. Schiedt, supra, 293 U.S., at 487, 55 S.Ct., at 301; Ex parte Peterson, supra, 253 U.S., at 309-310, 40 S.Ct., at 546. And since we deal here not with the common law qua common law but with the Constitution, no amount of argument that the device provides for more efficiency or more accuracy or is fairer will save it if the degree of invasion of the jury's province is greater than allowed in 1791. To rule otherwise would effectively permit judicial repeal of the Seventh Amendment because nearly any change in the province of the jury, no matter how drastic the diminution of its functions, can always be denominated "procedural reform." 44 The guarantees of the Seventh Amendment will prove burdensome in some instances; the civil jury surely was a burden to the English governors who, in its stead, substituted the vice-admiralty court. But, as with other provisions of the Bill of Rights, the onerous nature of the protection is no license for contracting the rights secured by the Amendment. Because " '[m]aintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence . . . any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.' " Dimick v. Schiedt, supra, 293 U.S., at 486, 55 S.Ct., at 301, quoted in Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 501, 79 S.Ct. 948, 951, 3 L.Ed.2d 988 (1959). C 45 Judged by the foregoing principles, I think it is clear that petitioners were denied their Seventh Amendment right to a jury trial in this case. Neither respondent nor the Court doubts that at common law as it existed in 1791, petitioners would have been entitled in the private action to have a jury determine whether the proxy statement was false and misleading in the respects alleged. The reason is that at common law in 1791, collateral estoppel was permitted only where the parties in the first action were identical to, or in privity with, the parties to the subsequent action.13 It was not until 1971 that the doctrine of mutuality was abrogated by this Court in certain limited circumstances. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788.14 But developments in the judge-made doctrine of collateral estoppel, however salutary, cannot, consistent with the Seventh Amendment, contract in any material fashion the right to a jury trial that a defendant would have enjoyed in 1791. In the instant case, resort to the doctrine of collateral estoppel does more than merely contract the right to a jury trial: It eliminates the right entirely and therefore contravenes the Seventh Amendment. 46 The Court responds, however, that at common law "a litigant was not entitled to have a jury [in a subsequent action at law between the same parties] determine issues that had been previously adjudicated by a chancellor in equity," and that "petitioners have advanced no persuasive reason . . . why the meaning of the Seventh Amendment should depend on whether or not mutuality of parties is present." Ante, at 652, 654. But that is tantamount to saying that since a party would not be entitled to a jury trial if he brought an equitable action, there is no persuasive reason why he should receive a jury trial on virtually the same issues if instead he chooses to bring his lawsuit in the nature of a legal action. The persuasive reason is that the Seventh Amendment requires that a party's right to jury trial which existed at common law be "preserved" from incursions by the government or the judiciary. Whether this Court believes that use of a jury trial in a particular instance is necessary, or fair or repetitive is simply irrelevant. If that view is "rigid," it is the Constitution which commands that rigidity. To hold otherwise is to rewrite the Seventh Amendment so that a party is guaranteed a jury trial in civil cases unless this Court thinks that a jury trial would be inappropriate. 47 No doubt parallel "procedural reforms" could be instituted in the area of criminal jurisprudence, which would accomplish much the same sort of expedition of court calendars and conservation of judicial resources as would the extension of collateral estoppel in civil litigation. Government motions for summary judgment, or for a directed verdict in favor of the prosecution at the close of the evidence, would presumably save countless hours of judges' and jurors' time. It can scarcely be doubted, though, that such "procedural reforms" would not survive constitutional scrutiny under the jury trial guarantee of the Sixth Amendment. Just as the principle of separation of powers was not incorporated by the Framers into the Constitution in order to promote efficiency or dispatch in the business of government, the right to a jury trial was not guaranteed in order to facilitate prompt and accurate decision of lawsuits. The essence of that right lies in its insistence that a body of laymen not permanently attached to the sovereign participate along with the judge in the factfinding necessitated by a lawsuit. And that essence is as much a part of the Seventh Amendment's guarantee in civil cases as it is of the Sixth Amendment's guarantee in criminal prosecutions. Cf. Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 90 L.Ed. 1181 (1946). 48 Relying on Galloway v. United States, Gasoline Products Co. v. Champlin Refining Co., and Fidelity & Deposit Co. v. United States, 187 U.S. 315, 23 S.Ct. 120, 47 L.Ed. 194 (1902), the Court seems to suggest that the offensive use of collateral estoppel in this case is permissible under the limited principle set forth above that a mere procedural change that does not invade the province of the jury and a defendant's right thereto to a greater extent than authorized by the common law is permissible. But the Court's actions today constitute a far greater infringement of the defendant's rights than it ever before has sanctioned. In Galloway, the Court upheld the modern form of directed verdict against a Seventh Amendment challenge, but it is clear that a similar form of directed verdict existed at common law in 1791. E. g., Beauchamp v. Borret, Peake 148, 170 Eng.Rep. 110 (N.P.1792); Coupey v. Henley, 2 Esp. 540, 542, 170 Eng.Rep. 448, 449 (C.P.1797).15 The modern form did not materially alter the function of the jury. Similarly, the modern device of summary judgment was found not to violate the Seventh Amendment because in 1791 a demurrer to the evidence, a procedural device substantially similar to summary judgment, was a common practice. E. g., Pawling v. United States, 4 Cranch 219, 221-222, 2 L.Ed. 601 (1808).16 The procedural devices of summary judgment and directed verdict are direct descendants of their common-law antecedents. They accomplish nothing more than could have been done at common law, albeit by a more cumbersome procedure. See also Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 250, 61 S.Ct. 189, 193, 85 L.Ed. 147 (1940). And while at common law there apparently was no practice of setting aside a verdict in part,17 the Court in Gasoline Products permitted a partial retrial of "distinct and separable" issues because the change in procedure would not impair the substance of the right to jury trial. 283 U.S., at 498, 51 S.Ct., at 514. The parties in Gasoline Products still enjoyed the right to have a jury determine all issues of fact. 49 By contrast, the development of nonmutual estoppel is a substantial departure from the common law and its use in this case completely deprives petitioners of their right to have a jury determine contested issues of fact. I am simply unwilling to accept the Court's presumption that the complete extinguishment of petitioners' right to trial by jury can be justified as a mere change in "procedural incident or detail." Over 40 years ago, Mr. Justice Sutherland observed in a not dissimilar case: "[T]his court in a very special sense is charged with the duty of construing and upholding the Constitution; and in the discharge of that important duty, it ever must be alert to see that a doubtful precedent be not extended by mere analogy to a different case if the result will be to weaken or subvert what it conceives to be a principle of the fundamental law of the land." Dimick v. Schiedt, 293 U.S., at 485, 55 S.Ct., at 300. II 50 Even accepting, arguendo, the majority's position that there is no violation of the Seventh Amendment here, I nonetheless would not sanction the use of collateral estoppel in this case. The Court today holds: 51 "The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel." Ante, at 651. 52 In my view, it is "unfair" to apply offensive collateral estoppel where the party who is sought to be estopped has not had an opportunity to have the facts of his case determined by a jury. Since in this case petitioners were not entitled to a jury trial in the Securities and Exchange Commission (SEC) lawsuit.18 I would not estop them from relitigating the issues determined in the SEC suit before a jury in the private action. I believe that several factors militate in favor of this result. 53 First, the use of offensive collateral estoppel in this case runs counter to the strong federal policy favoring jury trials, even if it does not, as the majority holds, violate the Seventh Amendment. The Court's decision in Beacon Threatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), exemplifies that policy. In Beacon Theatres the Court held that where both equitable and legal claims or defenses are presented in a single case, "only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims." Id., at 510-511, 79 S.Ct., at 957.19 And in Jacob v. New York, 315 U.S. 752, 752-753, 62 S.Ct. 854, 86 L.Ed. 1166 (1942), the Court stated: "The right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts." Accord, Simler v. Conner, 372 U.S. 221, 222, 83 S.Ct. 609, 610, 9 L.Ed.2d 691 (1963); Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 537-539, 78 S.Ct. 893, 900-901, 2 L.Ed.2d 953 (1958) (strong federal policy in favor of juries requires jury trials in diversity cases, regardless of state practice). Today's decision will mean that in a large number of private cases defendants will no longer enjoy the right to jury trial.20 Neither the Court nor respondent has adverted or cited to any unmanageable problems that have resulted from according defendants jury trials in such cases. I simply see no "imperative circumstances" requiring this wholesale abrogation of jury trials.21 54 Second, I believe that the opportunity for a jury trial in the second action could easily lead to a different result from that obtained in the first action before the court and therefore that it is unfair to estop petitioners from relitigating the issues before a jury. This is the position adopted in the Restatement (Second) of Judgments, which disapproves of the application of offensive collateral estoppel where the defendant has an opportunity for a jury trial in the second lawsuit that was not available in the first action.22 The Court accepts the proposition that it is unfair to apply offensive collateral estoppel "where the second action affords the defendant procedural opportunities unavailable in the first action that could readily cause a different result." Ante, at 651. Differences in discovery opportunities between the two actions are cited as examples of situations where it would be unfair to permit offensive collateral estoppel. Ante, at 651 n. 15. But in the Court's view, the fact that petitioners would have been entitled to a jury trial in the present action is not such a "procedural opportunit[y]" because "the presence or absence of a jury as factfinder is basically neutral, quite unlike, for example, the necessity of defending the first lawsuit in an inconvenient forum." Ante, at 652 n. 19 (emphasis added). 55 As is evident from the prior brief discussion of the development of the civil jury trial guarantee in this country, those who drafted the Declaration of Independence and debated so passionately the proposed Constitution during the ratification period, would indeed be astounded to learn that the presence or absence of a jury is merely "neutral," whereas the availability of discovery, a device unmentioned in the Constitution, may be controlling. It is precisely because the Framers believed that they might receive a different result at the hands of a jury of their peers than at the mercy of the sovereign's judges, that the Seventh Amendment was adopted. And I suspect that anyone who litigates cases before juries in the 1970's would be equally amazed to hear of the supposed lack of distinction between trial by court and trial by jury. The Court can cite no authority in support of this curious proposition. The merits of civil juries have been long debated, but I suspect that juries have never been accused of being merely "neutral" factors.23 56 Contrary to the majority's supposition, juries can make a difference, and our cases have, before today at least, recognized this obvious fact. Thus, in Colgrove v. Battin, 413 U.S., at 157, 93 S.Ct., at 2453, we stated that "the purpose of the jury trial in . . . civil cases [is] to assure a fair and equitable resolution of factual issues, Gasoline Products Co. v. Champlin Co., 283 U.S. 494, 498, 51 S.Ct. 513, 514, 75 L.Ed. 1188 (1931) . . . ." And in Byrd v. Blue Ridge Rural Electrical Cooperative, supra, 356 U.S., at 537, 78 S.Ct., at 900, the Court conceded that "the nature of the tribunal which tries issues may be important in the enforcement of the parcel of rights making up a cause of action or defense . . . . It may well be that in the instant personal-injury case the outcome would be substantially affected by whether the issue of immunity is decided by a judge or a jury." See Curtis v. Loether, 415 U.S., at 198, 94 S.Ct., at 1010; cf. Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968). Jurors bring to a case their common sense and community values; their "very inexperience is an asset because it secures a fresh perception of each trial, avoiding the stereotypes said to infect the judicial eye." H. Kalven & H. Zeisel, The American Jury 8 (1966). 57 The ultimate irony of today's decision is that its potential for significantly conserving the resources of either the litigants or the judiciary is doubtful at best. That being the case, I see absolutely no reason to frustrate so cavalierly the important federal policy favoring jury decisions of disputed fact questions. The instant case is an apt example of the minimal savings that will be accomplished by the Court's decision. As the Court admits, even if petitioners are collaterally estopped from relitigating whether the proxy was materially false and misleading, they are still entitled to have a jury determine whether respondent was injured by the alleged misstatements and the amount of damages, if any, sustained by respondent. Ante, at 648 n. 2. Thus, a jury must be impaneled in this case in any event. The time saved by not trying the issue of whether the proxy was materially false and misleading before the jury is likely to be insubstantial.24 It is just as probable that today's decision will have the result of coercing defendants to agree to consent orders or settlements in agency enforcement actions in order to preserve their right to jury trial in the private actions. In that event, the Court, for no compelling reason, will have simply added a powerful club to the administrative agencies' arsenals that even Congress was unwilling to provide them. 1 The amended complaint alleged that the proxy statement that had been issued to the stockholders was false and misleading because it failed to disclose: (1) that the president of Parklane would financially benefit as a result of the company's going private; (2) certain ongoing negotiations that could have resulted in financial benefit to Parklane; and (3) that the appraisal of the fair value of Parklane stock was based on insufficient information to be accurate. 2 A private plaintiff in an action under the proxy rules is not entitled to relief simply by demonstrating that the proxy solicitation was materially false and misleading. The plaintiff must also show that he was injured and prove damages. Mills v. Electric Auto-Lite Co., 396 U.S. 375, 386-390, 90 S.Ct. 616, 622-624, 24 L.Ed.2d 593. Since the SEC action was limited to a determination of whether the proxy statement contained materially false and misleading information, the respondent conceded that he would still have to prove these other elements of his prima facie case in the private action. The petitioners' right to a jury trial on those remaining issues is not contested. 3 The position of the Court of Appeals for the Second Circuit is in conflict with that taken by the Court of Appeals for the Fifth Circuit in Rachal v. Hill, 435 F.2d 59. 4 In this context, offensive use of collateral estoppel occurs when the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party. Defensive use occurs when a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has previously litigated and lost against another defendant. 5 Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action. 1B J. Moore, Federal Practice ¶ 0.405[1], pp. 622-624 (2d ed. 1974); e. g., Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 867, 99 L.Ed. 1122; Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898; Cromwell v. County of Sac, 94 U.S. 351, 352-353, 24 L.Ed. 681. 6 E. g., Bigelow v. Old Dominion Copper Co., 225 U.S. 111, 127, 32 S.Ct. 641, 642, 56 L.Ed. 1009 ("It is a principle of general elementary law that estoppel of a judgment must be mutual"); Buckeye Powder Co. v. E. I. DuPont de Nemours Powder Co., 248 U.S. 55, 63, 39 S.Ct. 38, 39, 63 L.Ed. 123; Restatement of Judgments § 93 (1942). 7 It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 329, 91 S.Ct. 1434, 1443, 28 L.Ed.2d 788; Hansberry v. Lee, 311 U. S. 32, 40, 61 S.Ct. 115, 117, 85 L.Ed. 22. 8 This criticism was summarized in the Court's opinion in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, supra, 402 U.S., at 322-327, 91 S.Ct., at 1439-1442. The opinion of Justice Traynor for a unanimous California Supreme Court in Bernhard v. Bank of America Nat. Trust & Savings Assn., 19 Cal.2d 807, 812, 122 P.2d 892, 895, made the point succinctly: "No satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend." 9 In Triplett v. Lowell, 297 U.S. 638, 56 S.Ct. 645, 80 L.Ed. 949, the Court had held that a determination of patent invalidity in a prior action did not bar a plaintiff from relitigating the validity of a patent in a subsequent action against a different defendant. This holding of the Triplett case was explicitly overruled in the Blonder-Tongue case. 10 The Court also emphasized that relitigation of issues previously adjudicated is particularly wasteful in patent cases because of their staggering expense and typical length. 402 U.S., at 334, 348, 91 S.Ct., at 1445, 1452. Under the doctrine of mutuality of parties an alleged infringer might find it cheaper to pay royalties than to challenge a patent that had been declared invalid in a prior suit, since the holder of the patent is entitled to a statutory presumption of validity. Id., at 338, 91 S.Ct., at 1447. 11 Various commentators have expressed reservations regarding the application of offensive collateral estoppel. Currie, Mutuality of Estoppel: Limits of the Bernhard Doctrine, 9 Stan.L.Rev. 281 (1957); Semmel, Collateral Estoppel, Mutuality and Joinder of Parties, 68 Colum.L.Rev. 1457 (1968); Note, The Impacts of Defensive and Offensive Assertion of Collateral Estoppel by a Nonparty, 35 Geo.Wash.L.Rev. 1010 (1967). Professor Currie later tempered his reservations. Civil Procedure: The Tempest Brews, 53 Calif.L.Rev. 25 (1965). 12 Under the mutuality requirement, a plaintiff could accomplish this result since he would not have been bound by the judgment had the original defendant won. 13 The Restatement (Second) of Judgments §§ 88(3) (Tent. Draft No. 2, Apr. 15, 1975) provides that application of collateral estoppel may be denied if the party asserting it "could have effected joinder in the first action between himself and his present adversary." 14 In Professor Currie's familiar example, a railroad collision injures 50 passengers all of whom bring separate actions against the railroad. After the railroad wins the first 25 suits, a plaintiff wins in suit 26. Professor Currie argues that offensive use of collateral estoppel should not be applied so as to allow plaintiffs 27 through 50 automatically to recover. Currie, supra, 9 Stan.L.Rev., at 304. See Restatement (Second) of Judgments § 88(4), supra. 15 If, for example, the defendant in the first action was forced to defend in an inconvenient forum and therefore was unable to engage in full scale discovery or call witnesses, application of offensive collateral estoppel may be unwarranted. Indeed, differences in available procedures may sometimes justify not allowing a prior judgment to have estoppel effect in a subsequent action even between the same parties, or where defensive estoppel is asserted against a plaintiff who has litigated and lost. The problem of unfairness is particularly acute in cases of offensive estoppel, however, because the defendant against whom estoppel is asserted typically will not have chosen the forum in the first action. See id., § 88(2) and Comment d. 16 This is essentially the approach of id., § 88, which recognizes that "the distinct trend if not the clear weight of recent authority is to the effect that there is no intrinsic difference between 'offensive' as distinct from 'defensive' issue preclusion, although a stronger showing that the prior opportunity to litigate was adequate may be required in the former situation than the latter." Id., Reporter's Note, at 99. 17 SEC v. Everest Management Corp., 475 F.2d 1236, 1240 (CA2) ("[T]he complicating effect of the additional issues and the additional parties outweighs any advantage of a single disposition of the common issues"). Moreover, consolidation of a private action with one brought by the SEC without its consent is prohibited by statute. 15 U.S.C. § 78u(g). 18 After a 4-day trial in which the petitioners had every opportunity to present evidence and call witnesses, the District Court held for the SEC. The petitioners then appealed to the Court of Appeals for the Second Circuit, which affirmed the judgment against them. Moreover, the petitioners were already aware of the action brought by the respondent, since it had commenced before the filing of the SEC action. 19 It is true, of course, that the petitioners in the present action would be entitled to a jury trial of the issues bearing on whether the proxy statement was materially false and misleading had the SEC action never been brought—a matter to be discussed in Part II of this opinion. But the presence or absence of a jury as factfinder is basically neutral, quite unlike, for example, the necessity of defending the first lawsuit in an inconvenient forum. 20 The Seventh Amendment provides: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right to jury trial shall be preserved . . . ." 21 The authors of this article conclude that the historical sources "indicates that in the late eighteenth and early nineteenth centuries, determinations in equity were thought to have as much force as determinations at law, and that the possible impact on jury trial rights was not viewed with concern. . . . If collateral estoppel is otherwise warranted, the jury trial question should not stand in the way." 85 Harv.L.Rev., at 455-456. This common-law rule is adopted in the Restatement of Judgments § 68, Comment j (1942). 22 Similarly, in both Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44, and Meeker v. Ambassador Oil Corp., 375 U.S. 160, 84 S.Ct. 273, 11 L.Ed.2d 261, the Court held that legal claims should ordinarily be tried before equitable claims to preserve the right to a jury trial. 23 The petitioners' reliance on Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603, is misplaced. In the Dimick case the Court held that an increase by the trial judge of the amount of money damages awarded by the jury violated the second clause of the Seventh Amendment, which provides that "no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." Collateral estoppel does not involve the "re-examination" of any fact decided by a jury. On the contrary, the whole premise of collateral estoppel is that once an issue has been resolved in a prior proceeding, there is no further factfinding function to be performed. 24 In reaching this conclusion, the Court of Appeals went on to state: "Were there any doubt about the [question whether the petitioners were entitled to a jury redetermination of the issues otherwise subject to collateral estoppel] it should in any event be resolved against the defendants in this case for the reason that, although they were fully aware of the pendency of the present suit throughout the non-jury trial of the SEC case, they made no effort to protect their right to a jury trial of the damage claims asserted by plaintiffs, either by seeking to expedite trial of the present action or by requesting Judge Duffy, in the exercise of his discretion pursuant to Rule 39(b), (c), F.R.Civ.P., to order that the issues in the SEC case be tried by a jury or before an advisory jury." 565 F.2d, at 821-822. (Footnote omitted.) The Court of Appeals was mistaken in these suggestions. The petitioners did not have a right to a jury trial in the equitable injunctive action brought by the SEC. Moreover, an advisory jury, which might have only delayed and complicated that proceeding, would not in any event have been a Seventh Amendment jury. And the petitioners were not in a position to expedite the private action and stay the SEC action. The Securities Exchange Act of 1934 provides for prompt enforcement actions by the SEC unhindered by parallel private actions. 15 U.S.C. § 78u(g). 1 Because I believe that the use of offensive collateral estoppel in this particular case was improper, it is not necessary for me to decide whether I would approve its use in circumstances where the defendant's right to a jury trial was not impaired. 2 See, e. g., Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973); Capital Traction Co. v. Hof, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873 (1899); Parsons v. Bedford, 3 Pet. 433, 7 L.Ed. 732 (1830); Henderson, The Background of the Seventh Amendment, 80 Harv.L.Rev. 289 (1966) (hereinafter Henderson); Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn.L.Rev. 639 (1973) (hereinafter Wolfram). See also United States v. Wonson, 28 Fed.Cas. 745 (No. 16,750) (CC Mass.1812) (Story, C.J.). 3 The Declaration of Independence states: "For depriving us in many cases, of the benefits of Trial by Jury." Just two years earlier, in the Declaration of Rights adopted October 14, 1774, the first Continental Congress had unanimously resolved that "the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law." 1 Journals of the Continental Congress 69 (1904). Holdsworth has written that of all the new methods adopted to strengthen the administration of the British laws, "the most effective, and therefore the most disliked, was the extension given to the jurisdiction of the reorganized courts of admiralty and vice-admiralty. It was the most effective, because it deprived the defendant of the right to be tried by a jury which was almost certain to acquit him." 11 W. Holdsworth, A History of English Law 110 (1966). While the vice-admiralty courts dealt chiefly with criminal offenses, their jurisdiction also was extended to many areas of the civil law. Wolfram 654 n. 47. 4 Ga.Const., Art. LXI (1777), in 2 The Federal and State Constitutions Colonial Charters, and Other Organic Laws 785 (F. Thorpe ed. 1909) (hereinafter Thorpe); Md.Const., Art. III (1776), in 3 Thorpe 1686-1687; Mass.Const., Art. XV (1780), in 3 Thorpe 1891-1892; N.H.Const., Art. XX (1784), in 4 Thorpe 2456; N.J.Const., Art. XXII (1776), in 5 Thorpe 2598; N.Y.Const., Art. XLI (1777), in 5 Thorpe 2637; N.C.Const., Declaration of Rights, Art. XIV (1776), in 5 Thorpe 2788; Pa.Const., Declaration of Rights, Art. XI (1776), in 5 Thorpe 3083; S.C.Const., Art. XLI (1778), in 6 Thorpe 3257; Va.Const., Bill of Rights, § 11 (1776), in 7 Thorpe 3814. See Wolfram 655. 5 When Congress in 1787 adopted the Northwest Ordinance for governance of the territories west of the Appalachians, it included a guarantee of trial by jury in civil cases. 2 Thorpe 960-961. 6 The proposal was to add the following language to Art. III: "And a trial by jury shall be preserved as usual in civil cases." 2 M. Farrand, The Records of the Federal Convention of 1787, p. 628 (1911). The debate regarding this proposal is quoted in Colgrove v. Battin, supra, at 153-155, n. 8, 93 S.Ct., at 2451 n. 8. 7 The objection of Mr. Gorham of Massachusetts was that "[t]he constitution of Juries is different in different States and the trial itself is usual in different cases in different States." 2 M. Farrand, supra, at 628. Commentators have suggested several additional reasons for the failure of the convention to include a civil jury guarantee. See Henderson 294-295; ("[T]he true reason for omitting a similar provision for civil juries was at least in part that the convention members simply wanted to go home."); Wolfram 660-666. 8 See Henderson 298; Wolfram 667-703. Virginia's recommended jury trial amendment is typical: "That, in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and [ought] to remain sacred and inviolable." 3 J. Elliot, Debates on the Federal Constitution 658 (2d ed. 1836). 9 The Judiciary Act of September 24, 1789, which was passed within six months of the organization of the new government and on the day before the first 10 Amendments were proposed to the legislatures of the States by the First Congress, provided for a civil jury trial right. 1 Stat. 77. 10 Thomas Jefferson stated: "I consider [trial by jury] as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution." 3 The Writings of Thomas Jefferson 71 (Washington ed. 1861). 11 Wolfram 671. Professor Wolfram has written: "[T]he antifederalists were not arguing for the institution of civil jury trial in the belief that jury trials were short, inexpensive, decorous and productive of the same decisions that judges sitting without juries would produce. The inconveniences of jury trial were accepted precisely because in important instances, through its ability to disregard substantive rules of law, the jury would reach a result that the judge either could not or would not reach. Those who favored the civil jury were not misguided tinkerers with procedural devices; they were, for the day, libertarians who avowed that important areas of protection for litigants in general, and for debtors in particular, would be placed in grave danger unless it were required that juries sit in civil cases." Id., at 671-672. 12 The majority suggests that Dimick v. Schiedt is not relevant to the decision in this case because it dealt with the second clause of the Seventh Amendment. Ante, at 654, n. 23. I disagree. There is no intimation in that opinion that the first clause should be treated any differently from the second. The Dimick Court's respect for the guarantees of the Seventh Amendment applies as much to the first clause as to the second. 13 See Smith v. Kernochen, 7 How. 198, 218, 12 L.Ed. 666 (1849); Hopkins v. Lee, 6 Wheat. 109, 113-114, 5 L.Ed. 218 (1821); F. Buller, An Introduction to the Law Relative to Trials at Nisi Prius *232 (7th ed. 1817); T. Peake, A Compendium of the Law of Evidence 38 (2d ed. 1806). 14 The Court's decision in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, is, on its facts, limited to the defensive use of collateral estoppel in patent cases. Abandonment of mutuality is a recent development. The case of Bernhard v. Bank of America Nat. Trust & Sav. Assn., 19 Cal.2d 807, 122 P.2d 892, generally considered the seminal case adopting the new approach, was not decided until 1942. 15 See Henderson 302-303 ("In the England of 1790 the phrase 'to direct a verdict' was common. Further, it was commonplace to instruct the jury 'that the plaintiff was entitled to recover,' or 'the plaintiff must have a verdict' "); Scott, Trial by Jury and the Reform of Civil Procedure, 31 Harv.L.Rev. 669, 686 (1918) (cases cited therein). 16 To demur, a party would admit the truth of all the facts adduced against him and every adverse inference that could be drawn therefrom, and the court would determine which party should receive judgment on the basis of these admitted facts and inferences. See Slocum v. New York Life Ins. Co., 228 U.S. 364, 388, 33 S.Ct. 523, 532, 57 L.Ed. 879 (1913); Gibson v. Hunter, 2 H.Bl. 187, 126 Eng.Rep. 499 (N.P.1793); Henderson 304-305; Scott, supra, n. 15, at 683-684. 17 The Court in Gasoline Products quoted Lord Mansfield, who stated that when a verdict is correct as to one issue but erroneous as to another " 'FOR FORM'S SAKE, WE MUST SET ASIDE THE WHOLE VERDICT. . . .' " EDIe v. East India Co., 1 W.Bl. 295, 298 (K.B.1761), quoted in 283 U.S., at 498, 51 S.Ct., at 514. 18 I agree with the Court that "petitioners did not have a right to a jury trial in the equitable injunctive action brought by the SEC." Ante, at 655 n. 24. 19 Meeker v. Ambassador Oil Corp., 375 U.S. 160, 84 S.Ct. 273, 11 L.Ed.2d 261 (1963) (per curiam ), is a case where the doctrine of collateral estoppel yielded to the right to a jury trial. In Meeker, plaintiffs asserted both equitable and legal claims, which presented common issues, and demanded a jury trial. The trial court tried the equitable claim first, and decided that claim, and the common issues, adversely to plaintiffs. As a result, it held that plaintiffs were precluded from relitigating those same issues before a jury on their legal claim. 308 F.2d 875, 884 (CA10 1962). Plaintiffs appealed, alleging a denial of their right to a jury trial, but the Tenth Circuit affirmed the trial court. This Court reversed the Court of Appeals on the basis of Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), and Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), even though, unlike those cases, the equitable action in Meeker already had been tried and the common issues determined by the court. Thus, even though the plaintiffs in Meeker had received a "full and fair" opportunity to try the common issues in the prior equitable action, they nonetheless were given the opportunity to retry those issues before a jury. Today's decision is totally inconsistent with Meeker and the Court fails to explain this inconsistency. 20 The Court's decision today may well extend to other areas, such as antitrust, labor, employment discrimination, consumer protection, and the like, where a private plaintiff may sue for damages based on the same or similar violations that are the subject of government actions. 21 This is not to say that Congress cannot commit enforcement of statutorily created rights to an "administrative process or specialized court of equity." Curtis v. Loether, 415 U.S. 189, 195, 94 S.Ct. 1005, 1009, 39 L.Ed.2d 260 (1974); see Atlas Roofing Co., Inc. v. Occupational Safety & Health Review Comm'n, 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977); Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937). 22 Restatement (Second) of Judgments § 88(2), Comment d (Tent. Draft No. 2, Apr. 15, 1975). Citing Rachal v. Hill, 435 F.2d 59 (CA5 1970), cert. denied, 403 U.S. 904, 91 S.Ct. 2203, 29 L.Ed.2d 680 (1971), the Reporter's Note states: "The differences between the procedures available in the first and second actions, while not sufficient to deny issue preclusion between the same parties, may warrant a refusal to carry over preclusion to an action involving another party." Restatement, supra, 100. 23 See, e. g., Hearings on Recording of Jury Deliberations before the Subcommittee to Investigate the Administration of the Internal Security Act and other Internal Security Laws of the Senate Committee on the Judiciary, 84th Cong., 1st Sess., 63-81 (1955) (thorough summary of arguments pro and con on jury trials and an extensive bibliography); H. Kalven & H. Zeisel, The American Jury 4 n. 2 (1966) (bibliography); Redish, Seventh Amendment Right to Jury Trial: A Study in the Irrationality of Rational Decision Making, 70 Nw.U.L.Rev. 486, 502-508 (1975) (discussion of arguments for and against juries). 24 Much of the delay in jury trials is attributed to the jury selection, voir dire, and the charge. See H. Zeisel, H. Kalven, & B. Buchholz, Delay in the Court 79 (1959). None of these delaying factors will be avoided by today's decision.

89

439 U.S. 379 99 S.Ct. 675 58 L.Ed.2d 596 Aldo COLAUTTI, Secretary of Welfare of Pennsylvania, et al., Petitioners,v.John FRANKLIN et al. No. 77-891. Argued Oct. 5, 1978. Decided Jan. 9, 1979. Syllabus Section 5(a) of the Pennsylvania Abortion Control Act requires every person who performs an abortion to make a determination, "based on his experience, judgment or professional competence," that the fetus is not viable. If such person determines that the fetus "is viable," or "if there is sufficient reason to believe that the fetus may be viable," then he must exercise the same care to preserve the fetus' life and health as would be required in the case of a fetus intended to be born alive, and must use the abortion technique providing the best opportunity for the fetus to be aborted alive, so long as a different technique is not necessary to preserve the mother's life or health. The Act, in § 5(d), also imposes a penal sanction for a violation of § 5(a). Appellees brought suit claiming, inter alia, that § 5(a) is unconstitutionally vague, and a three-judge District Court upheld their claim. Held : 1. The viability-determination requirement of § 5(a) is void for vagueness. Pp. 390-397. (a) Though apparently the determination of whether the fetus "is viable" is to rest upon the basis of the attending physician's "experience, judgment or professional competence," it is ambiguous whether that subjective language applies to the second condition that activates the duty to the fetus viz., "sufficient reason to believe that the fetus may be viable." Pp. 391-392. (b) The intended distinction between "is viable" and "may be viable" is elusive. Apparently those phrases refer to distinct conditions, one of which indeterminately differs from the definition of viability set forth in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, and Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788. Pp. 392-394. (c) The vagueness of the viability-determination requirement is compounded by the fact that § 5(d) subjects the physician to potential criminal liability without regard to fault. Because of the absence of a scienter requirement in the provision directing the physician to determine whether the fetus is or may be viable, the Act is little more than "a trap for those who act in good faith," United States v. Ragen, 314 U.S. 513, 524, 62 S.Ct. 374, 379, 86 L.Ed. 383, and the perils of strict criminal liability are particularly acute here because of the uncertainty of the viability determination itself. Pp. 394-397. 2. The standard-of-care provision is likewise impermissibly vague. It is uncertain whether the statute permits the physician to consider his duty to the patient to be paramount to his duty to the fetus, or whether it requires the physician to make a "trade-off" between the patient's health and increased chances of fetal survival. Where conflicting duties of such magnitude are involved, there must be greater statutory precision before a physician may be subjected to possible criminal sanctions. Pp. 397-401. 401 F.Supp. 554, affirmed. Carol Los Mansmann, Pittsburgh, Pa., for appellants. Roland Morris, Philadelphia, Pa., for appellees. Mr. Justice BLACKMUN delivered the opinion of the Court. 1 At issue here is the constitutionality of subsection (a) of § 51 of the Pennsylvania Abortion Control Act, 1974 Pa.Laws, Act No. 209, Pa.Stat.Ann., Tit. 35, § 6605(a) (Purdon 1977). This statute subjects a physician who performs an abortion to potential criminal liability if he fails to utilize a statutorily prescribed technique when the fetus "is viable" or when there is "sufficient reason to believe that the fetus may be viable." A three-judge Federal District Court2 declared § 5(a) unconstitutionally vague and overbroad and enjoined its enforcement. App. 239a-244a. Pursuant to 28 U.S.C. § 1253, we noted probable jurisdiction sub nom. Beal v. Franklin, 435 U.S. 913, 98 S.Ct. 1465, 55 L.Ed.2d 504 (1978). 2 * The Abortion Control Act was passed by the Pennsylvania Legislature, over the Governor's veto, in the year following this Court's decisions in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). It was a comprehensive statute. 3 Section 1 gave the Act its title. Section 2 defined, among other terms, "informed consent" and "viable." The latter was specified to mean "the capability of a fetus to live outside the mother's womb albeit with artificial aid." See Roe v. Wade, 410 U.S., at 160, 93 S.Ct., at 730. 4 Section 3(a) proscribed the performance of an abortion "upon any person in the absence of informed consent thereto by such person." Section 3(b)(i) prohibited the performance of an abortion in the absence of the written consent of the woman's spouse, provided that the spouse could be located and notified, and the abortion was not certified by a licensed physician "to be necessary in order to preserve the life or health of the mother." Section 3(b)(ii), applicable if the woman was unmarried and under the age of 18, forbade the performance of an abortion in the absence of the written consent of "one parent or person in loco parentis" of the woman, unless the abortion was certified by a licensed physician "as necessary in order to preserve the life of the mother." Section 3(e) provided that whoever performed an abortion without such consent was guilty of a misdemeanor of the first degree. 5 Section 4 provided that whoever, intentionally and willfully, took the life of a premature infant aborted alive, was guilty of murder of the second degree. Section 5(a), set forth in n. 1, supra, provided that if the fetus was determined to be viable, or if there was sufficient reason to believe that the fetus might be viable, the person performing the abortion was required to exercise the same care to preserve the life and health of the fetus as would be required in the case of a fetus intended to be born alive, and was required to adopt the abortion technique providing the best opportunity for the fetus to be aborted alive, so long as a different technique was not necessary in order to preserve the life or health of the mother. Section 5(d), also set forth in n. 1, imposed a penal sanction for a violation of § 5(a). 6 Section 6 specified abortion controls. It prohibited abortion during the stage of pregnancy subsequent to viability, except where necessary, in the judgment of a licensed physician, to preserve the life or health of the mother. No abortion was to be performed except by a licensed physician and in an approved facility. It required that appropriate records be kept, and that quarterly reports be filed with the Commonwealth's Department of Health. And it prohibited solicitation or advertising with respect to abortions. A violation of § 6 was a misdemeanor of the first or third degrees, as specified. 7 Section 7 prohibited the use of public funds for an abortion in the absence of a certificate of a physician stating that the abortion was necessary in order to preserve the life or health of the mother. Finally, § 8 authorized the Department of Health to make rules and regulations with respect to performance of abortions and the facilities in which abortions were performed. See Pa.Stat.Ann., Tit. 35, §§ 6601-6608 (Purdon 1977). 8 Prior to the Act's effective date, October 10, 1974, the present suit was filed in the United States District Court for the Eastern District of Pennsylvania challenging, on federal constitutional grounds, nearly all of the Act's provisions.3 The three-judge court on October 10 issued a preliminary injunction restraining the enforcement of a number of those provisions.4 Each side sought a class-action determination; the plaintiffs', but not the defendants', motion to this effect was granted.5 9 The case went to trial in January 1975. The court received extensive testimony from expert witnesses on all aspects of abortion procedures. The resulting judgment declared the Act to be severable, upheld certain of its provisions, and held other provisions unconstitutional. Planned Parenthood Assn. v. Fitzpatrick, 401 F.Supp. 554 (1975).6 The court sustained the definition of "informed consent" in § 2; the facility-approval requirement and certain of the reporting requirements of § 6; § 8's authorization of rules and regulations; and, by a divided vote, the informed consent requirement of § 3(a). It overturned § 3(b)(i)'s spousal-consent requirement, and, again by a divided vote, § 3(b)(ii)'s parental-consent requirement; § 6's reporting requirements relating to spousal and parental consent; § 6's prohibition of advertising; and § 7's restriction on abortion funding. The definition of "viable" in § 2 was declared void for vagueness and, because of the incorporation of this definition, § 6's proscription of abortions after viability, except to preserve the life or health of the woman, was struck down. Finally, in part because of the incorporation of the definition of "viable," and in part because of the perceived overbreadth of the phrase "may be viable," the court invalidated the viability-determination and standard-of-care provisions of § 5(a). 401 F.Supp., at 594. 10 Both sides appealed to this Court. While the appeals were pending, the Court decided Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); and Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). Virginia State Board shed light on the prohibition of advertising for abortion services. Planned Parenthood had direct bearing on the patient-, spousal-, and parental-consent issues and was instructive on the definition-of-viability issue. Singleton concerned the issue of standing to challenge abortion regulations. Accordingly, that portion of the three-judge court's judgment which was the subject of the plaintiffs' appeal was summarily affirmed. Franklin v. Fitzpatrick, 428 U.S. 901, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976). And that portion of the judgment which was the subject of the defendants' appeal was vacated and remanded for further consideration in the light of Planned Parenthood, Singleton, and Virginia State Board. Beal v. Franklin, 428 U.S. 901, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976). 11 On remand, the parties entered into a stipulation which disposed of all issues except the constitutionality of §§ 5(a) and 7. Relying on this Court's supervening decisions in Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977), and Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), the District Court found, contrary to its original view, see 401 F.Supp., at 594, that § 7 did not violate either Tit. XIX of the Social Security Act, as added, 79 Stat. 343, and amended, 42 U.S.C. § 1396 et seq., or the Equal Protection Clause of the Fourteenth Amendment. App. 241a. The court, however, declared: "After reconsideration of section 5(a) in light of the most recent Supreme Court decisions, we adhere to our original view and decision that section 5(a) is unconstitutional." Id., at 240a-241a. Since the plaintiffs-appellees have not appealed from the ruling with respect to § 7, the only issue remaining in this protracted litigation is the validity of § 5(a). II 12 Three cases in the sensitive and earnestly contested abortion area provide essential background for the present controversy. 13 In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), this Court concluded that there is a right of privacy, implicit in the liberty secured by the Fourteenth Amendment, that "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Id., at 153, 93 S.Ct., at 727. This right, we said, although fundamental, is not absolute or unqualified, and must be considered against important state interests in the health of the pregnant woman and in the potential life of the fetus. "These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes 'compelling.' " Id., at 162-163, 93 S.Ct., at 731. For both logical and biological reasons, we indicated that the State's interest in the potential life of the fetus reaches the compelling point at the stage of viability. Hence, prior to viability, the State may not seek to further this interest by directly restricting a woman's decision whether or not to terminate her pregnancy.7 But after viability, the State, if it chooses, may regulate or even prohibit abortion except where necessary, in appropriate medical judgment, to preserve the life or health of the pregnant woman. Id., at 163-164, 93 S.Ct., at 731-732. 14 We did not undertake in Roe to examine the various factors that may enter into the determination of viability. We simply observe that, in the medical and scientific communities, a fetus is considered viable if it is "potentially able to live outside the mother's womb, albeit with artificial aid." Id., at 160, 93 S.Ct., at 730. We added that there must be a potentiality of "meaningful life," id., at 163, 93 S.Ct., at 731, not merely momentary survival. And we noted that viability "is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks." Id., at 160, 93 S.Ct., at 730. We thus left the point flexible for anticipated advancements in medical skill. 15 Roe stressed repeatedly the central role of the physician, both in consulting with the woman about whether or not to have an abortion, and in determining how any abortion was to be carried out. We indicated that up to the points where important state interests provide compelling justifications for intervention, "the abortion decision in all its aspects is inherently, and primarily, a medical decision," id., at 166, 93 S.Ct., at 733, and we added that if this privilege were abused, "the usual remedies, judicial and intra-professional, are available." Ibid. 16 Roe's companion case, Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), underscored the importance of affording the physician adequate discretion in the exercise of his medical judgment. After the Court there reiterated that "a pregnant woman does not have an absolute constitutional right to an abortion on her demand," id., at 189, 93 S.Ct., at 746, the Court discussed, in a vagueness-attack context, the Georgia statute's requirement that a physician's decision to perform an abortion must rest upon "his best clinical judgment." The Court found it critical that that judgment "may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman's age—relevant to the well-being of the patient." Id., at 192, 93 S.Ct., at 747. 17 The third case, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), stressed similar themes. There a Missouri statute that defined viability was challenged on the ground that it conflicted with the discussion of viability in Roe and that it was, in reality, an attempt to advance the point of viability to an earlier stage in gestation. The Court rejected that argument, repeated the Roe definition of viability, 428 U.S., at 63, 96 S.Ct., at 2838-2839, and observed again that viability is "a matter of medical judgment, skill, and technical ability, and we preserved [in Roe] the flexibility of the term." Id., at 64, 96 S.Ct., at 2838. The Court also rejected a contention that "a specified number of weeks in pregnancy must be fixed by statute as the point of viability." Id., at 65, 96 S.Ct., at 2839. It said: 18 "In any event, we agree with the District Court that it is not the proper function of the legislature or the courts to place viability, which essentially is a medical concept, at a specific point in the gestation period. The time when viability is achieved may vary with each pregnancy, and the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician." Id., at 64, 96 S.Ct., at 2839. 19 In these three cases, then, this Court has stressed viability, has declared its determination to be a matter for medical judgment, and has recognized that differing legal consequences ensue upon the near and far sides of that point in the human gestation period. We reaffirm these principles. Viability is reached when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus' sustained survival outside the womb, with or without artificial support. Because this point may differ with each pregnancy, neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability—be it weeks of gestation or fetal weight or any other single factor—as the determinant of when the State has a compelling interest in the life or health of the fetus. Viability is the critical point. And we have recognized no attempt to stretch the point of viability one way or the other. 20 With these principles in mind, we turn to the issues presented by the instant controversy. III 21 The attack mounted by the plaintiffs-appellees upon § 5(a) centers on both the viability-determination requirement and the stated standard of care. The former provision, requiring the physician to observe the care standard when he determines that the fetus is viable, or when "there is sufficient reason to believe that the fetus may be viable," is asserted to be unconstitutionally vague because it fails to inform the physician when his duty to the fetus arises, and because it does not make the physician's good-faith determination of viability conclusive. This provision is also said to be unconstitutionally overbroad, because it carves out a new time period prior to the stage of viability, and could have a restrictive effect on a couple who wants to abort a fetus determined by genetic testing to be defective.8 The standard of care, and in particular the requirement that the physician employ the abortion technique "which would provide the best opportunity for the fetus to be aborted alive so long as a different technique would not be necessary in order to preserve the life or health of the mother," is said to be void for vagueness and to be unconstitutionally restrictive in failing to afford the physician sufficient professional discretion in determining which abortion technique is appropriate. 22 The defendants-appellants, in opposition, assert that the Pennsylvania statute is concerned only with post-viability abortions and with prescribing a standard of care for those abortions. They assert that the terminology "may be viable" correctly describes the statistical probability of fetal survival associated with viability; that the viability-determination requirement is otherwise sufficiently definite to be interpreted by the medical community; and that it is for the legislature, not the judiciary, to determine whether a viable but genetically defective fetus has a right to life. They contend that the standard-of-care provision preserves the flexibility required for sound medical practice, and that it simply requires that when a physician has a choice of procedures of equal risk to the woman, he must select the procedure least likely to be fatal to the fetus. IV 23 We agree with plaintiffs-appellees that the viability-determination requirement of § 5(a) is ambiguous, and that its uncertainty is aggravated by the absence of a scienter requirement with respect to the finding of viability. Because we conclude that this portion of the statute is void for vagueness, we find it unnecessary to consider appellees' alternative arguments based on the alleged overbreadth of § 5(a). A. 24 It is settled that, as a matter of due process, a criminal statute that "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954), or is so indefinite that "it encourages arbitrary and erratic arrests and convictions," Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972), is void for vagueness. See generally Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972). This appears to be especially true where the uncertainty induced by the statute threatens to inhibit the exercise of constitutionally protected rights. Id., at 109, 92 S.Ct., at 2299; Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974); Keyishian v. Board of Regents, 385 U.S. 589, 603-604, 87 S.Ct. 675, 683-684, 17 L.Ed.2d 629 (1967). 25 Section 5(a) requires every person who performs or induces an abortion to make a determination, "based on his experience, judgment or professional competence," that the fetus is not viable. If such person determines that the fetus is viable, or if "there is sufficient reason to believe that the fetus may be viable," then he must adhere to the prescribed standard of care. See n. 1, supra. This requirement contains a double ambiguity. First, it is unclear whether the statute imports a purely subjective standard, or whether it imposes a mixed subjective and objective standard. Second, it is uncertain whether the phrase "may be viable" simply refers to viability, as that term has been defined in Roe and in Planned Parenthood, or whether it refers to an undefined penumbral or "gray" area prior to the stage of viability. 26 The statute requires the physician to conform to the prescribed standard of care if one of two conditions is satisfied: if he determines that the fetus "is viable," or "if there is sufficient reason to believe that the fetus may be viable." Apparently, the determination of whether the fetus "is viable" is to be based on the attending physician's "experience, judgment or professional competence," a subjective point of reference. But it is unclear whether the same phrase applies to the second triggering condition, that is, to "sufficient reason to believe that the fetus may be viable." In other words, it is ambiguous whether there must be "sufficient reason" from the perspective of the judgment, skill, and training of the attending physician, or "sufficient reason" from the perspective of a cross section of the medical community or a panel of experts. The latter, obviously, portends not an inconsequential hazard for the typical private practitioner who may not have the skills and technology that are readily available at a teaching hospital or large medical center. 27 The intended distinction between the phrases "is viable" and "may be viable" is even more elusive. Appellants argue that no difference is intended, and that the use of the "may be viable" words "simply incorporates the acknowledged medical fact that a fetus is 'viable' if it has that statistical 'chance' of survival recognized by the medical community." Brief for Appellants 28. The statute, however, does not support the contention that "may be viable" is synonymous with, or merely intended to explicate the meaning of, "viable."9 28 Section 5(a) requires the physician to observe the prescribed standard of care if he determines "that the fetus is viable or if there is sufficient reason to believe that the fetus may be viable" (emphasis supplied). The syntax clearly implies that there are two distinct conditions under which the physician must conform to the standard of care. Appellants' argument that "may be viable" is synonymous with "viable" would make either the first or the second condition redundant or largely superfluous, in violation of the elementary canon of construction that a statute should be interpreted so as not to render one part inoperative. See United States v. Menasche, 348 U.S. 528, 538-539, 75 S.Ct. 513, 519-520, 99 L.Ed. 615 (1955). 29 Furthermore, the suggestion that "may be viable" is an explication of the meaning of "viable" flies in the face of the fact that the statute, in § 2, already defines "viable." This, presumably, was intended to be the exclusive definition of "viable" throughout the Act.10 In this respect, it is significant that § 6(b) of the Act speaks only of the limited availability of abortion during the stage of a pregnancy "subsequent to viability." The concept of viability is just as important in § 6(b) as it is in § 5(a). Yet in § 6(b) the legislature found it unnecessary to explain that a "viable" fetus includes one that "may be viable." 30 Since we must reject appellants' theory that "may be viable" means "viable," a second serious ambiguity appears in the statute. On the one hand, as appellees urge and as the District Court found, see 401 F.Supp., at 572, it may be that "may be viable" carves out a new time period during pregnancy when there is a remote possibility of fetal survival outside the womb, but the fetus has not yet attained the reasonable likelihood of survival that physicians associate with viability. On the other hand, although appellants do not argue this, it may be that "may be viable" refers to viability as physicians understand it, and "viable" refers to some undetermined stage later in pregnancy. We need not resolve this question. The crucial point is that "viable" and "may be viable" apparently refer to distinct conditions, and that one of these conditions differs in some indeterminate way from the definition of viability as set forth in Roe and in Planned Parenthood.11 31 Because of the double ambiguity in the viability-determination requirement, this portion of the Pennsylvania statute is readily distinguishable from the requirement that an abortion must be "necessary for the preservation of the mother's life or health," upheld against a vagueness challenge in United States v. Vuitch, 402 U.S. 62, 69-72, 91 S.Ct. 1294, 1299, 28 L.Ed.2d 601 (1971), and the requirement that a physician determine, on the basis of his "best clinical judgment," that an abortion is "necessary," upheld against a vagueness attack in Doe v. Bolton, 410 U.S., at 191-192, 93 S.Ct., at 747. The contested provisions in those cases had been interpreted to allow the physician to make his determination in the light of all attendant circumstances—psychological and emotional as well as physical—that might be relevant to the well-being of the patient. The present statute does not afford broad discretion to the physician. Instead, it conditions potential criminal liability on confusing and ambiguous criteria. It therefore presents serious problems of notice, discriminatory application, and chilling effect on the exercise of constitutional rights. B 32 The vagueness of the viability-determination requirement of § 5(a) is compounded by the fact that the Act subjects the physician to potential criminal liability without regard to fault. Under § 5(d), see n. 1, supra, a physician who fails to abide by the standard of care when there is sufficient reason to believe that the fetus "may be viable" is subject "to such civil or criminal liability as would pertain to him had the fetus been a child who was intended to be born and not aborted." To be sure, the Pennsylvania law of criminal homicide, made applicable to the physician by § 5(d), conditions guilt upon a finding of scienter. See Pa.Stat.Ann., Tit. 18, §§ 2501-2504 (Purdon 1973 and Supp.1978). The required mental state, however, is that of "intentionally, knowingly, recklessly or negligently caus[ing] the death of another human being." § 2501 (1973). Thus, the Pennsylvania law of criminal homicide requires scienter with respect to whether the physician's actions will result in the death of the fetus. But neither the Pennsylvania law of criminal homicide, nor the Abortion Control Act, requires that the physician be culpable in failing to find sufficient reason to believe that the fetus may be viable.12 33 This Court has long recognized that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea. See, for example, United States v. United States Gypsum Co., 438 U.S. 422, 434-446, 98 S.Ct. 2864, 2873, 57 L.Ed.2d 854 (1978); Papachristou v. Jacksonville, 405 U.S., at 163, 92 S.Ct., at 843; Boyce Motor Lines v. United States, 342 U.S. 337, 342, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952).13 Because of the absence of a scienter requirement in the provision directing the physician to determine whether the fetus is or may be viable, the statute is little more than "a trap for those who act in good faith." United States v. Ragen, 314 U.S. 513, 524, 62 S.Ct. 374, 379, 86 L.Ed. 383 (1942). 34 The perils of strict criminal liability are particularly acute here because of the uncertainty of the viability determination itself. As the record in this case indicates, a physician determines whether or not a fetus is viable after considering a number of variables: the gestational age of the fetus, derived from the reported menstrual history of the woman; fetal weight, based on an inexact estimate of the size and condition of the uterus; the woman's general health and nutrition; the quality of the available medical facilities; and other factors.14 Because of the number and the imprecision of these variables, the probability of any particular fetus' obtaining meaningful life outside the womb can be determined only with difficulty. Moreover, the record indicates that even if agreement may be reached on the probability of survival, different physicians equate viability with different probabilities of survival, and some physicians refuse to equate viability with any numerical probability at all.15 In the face of these uncertainties, it is not unlikely that experts will disagree over whether a particular fetus in the second trimester has advanced to the stage of viability. The prospect of such disagreement, in conjunction with a statute imposing strict civil and criminal liability for an erroneous determination of viability, could have a profound chilling effect on the willingness of physicians to perform abortions near the point of viability in the manner indicated by their best medical judgment. 35 Because we hold that the viability-determination provision of § 5(a) is void on its face, we need not now decide whether, under a properly drafted statute, a finding of bad faith or some other type of scienter would be required before a physician could be held criminally responsible for an erroneous determination of viability. We reaffirm, however, that "the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician." Planned Parenthood of Central Missouri v. Danforth, 428 U.S., at 64, 96 S.Ct., at 2839. State regulation that impinges upon this determination, if it is to be constitutional, must allow the attending physician "the room he needs to make his best medical judgment." Doe v. Bolton, 410 U.S., at 192, 93 S.Ct., at 747. V 36 We also conclude that the standard-of-care provision of § 5(a) is impermissibly vague.16 The standard-of-care provision, when it applies, requires the physician to 37 "exercise that degree of professional skill, care and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted and the abortion technique employed shall be that which would provide the best opportunity for the fetus to be aborted alive so long as a different technique would not be necessary in order to preserve the life or health of the mother." 38 Plaintiffs-appellees focus their attack on the second part of the standard, requiring the physician to employ the abortion technique offering the greatest possibility of fetal survival, provided some other technique would not be necessary in order to preserve the life or health of the mother.17 39 The District Court took extensive testimony from various physicians about their understanding of this requirement. That testimony is illuminating. When asked what method of abortion they would prefer to use in the second trimester in the absence of § 5(a), the plaintiffs' experts said that they thought saline amnio-infusion was the method of choice.18 This was described as a method involving removal of amniotic fluid and injection of a saline or other solution into the amniotic sac. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S., at 75-79, 96 S.Ct., at 2843-2845. All physicians agreed, however, that saline amnio-infusion nearly always is fatal to the fetus,19 and it was commonly assumed that this method would be prohibited by the statute. 40 When the plaintiffs' and defendants' physician-experts respectively were asked what would be the method of choice under § 5(a), opinions differed widely. Preferences ranged from no abortion, to prostaglandin infusion, to hysterotomy, to oxytocin induction.20 Each method, it was generally conceded, involved disadvantages from the perspective of the woman. Hysterotomy, a type of Caesarean section procedure, generally was considered to have the highest incidence of fetal survival of any of the abortifacients. Hysterotomy, however, is associated with the risks attendant upon any operative procedure involving anesthesia and incision of tissue.21 And all physicians agreed that future children born to a woman having a hysterotomy would have to be delivered by Caesarean section because of the likelihood of rupture of the scar.22 41 Few of the testifying physicians had had any direct experience with prostaglandins, described as drugs that stimulate uterine contractibility, inducing premature expulsion of the fetus. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S., at 77-78, 96 S.Ct., at 2844-2845. It was generally agreed that the incidence of fetal survival with prostaglandins would be significantly greater than with saline amnio-infusion.23 Several physicians testified, however, that prostaglandins have undesirable side effects, such as nausea, vomiting, headache, and diarrhea, and indicated that they are unsafe with patients having a history of asthma, glaucoma, hypertension, cardiovascular disease, or epilepsy.24 See Wynn v. Scott, 449 F.Supp. 1302, 1326 (N.D. Ill.1978). One physician recommended oxytocin induction. He doubted, however, whether the procedure would be fully effective in all cases, and he indicated that the procedure was prolonged and expensive.25 42 The parties acknowledge that there is disagreement among medical authorities about the relative merits and the safety of different abortion procedures that may be used during the second trimester. See Brief for Appellants 24. The appellants submit, however, that the only legally relevant considerations are that alternatives exist among abortifacients, "and that the physician, mindful of the state's interest in protecting viable life, must make a competent and good faith medical judgment on the feasibility of protecting the fetus' chance of survival in a manner consistent with the life and health of the pregnant woman." Id., at 25. We read § 5(a), however, to be much more problematical. 43 The statute does not clearly specify, as appellants imply, that the woman's life and health must always prevail over the fetus' life and health when they conflict. The woman's life and health are not mentioned in the first part of the stated standard of care, which sets forth the general duty to the viable fetus; they are mentioned only in the second part which deals with the choice of abortion procedures. Moreover, the second part of the standard directs the physician to employ the abortion technique best suited to fetal survival "so long as a different technique would not be necessary in order to preserve the life or health of the mother" (emphasis supplied). In this context, the word "necessary" suggests that a particular technique must be indispensable to the woman's life or health—not merely desirable before it may be adopted. And "the life or health of the mother," as used in § 5(a), has not been construed by the courts of the Commonwealth to mean, nor does it necessarily imply, that all factors relevant to the welfare of the woman may be taken into account by the physician in making his decision. Cf. United States v. Vuitch, 402 U.S., at 71-72, 91 S.Ct., at 1298-1299; Doe v. Bolton, 410 U.S., at 191, 93 S.Ct., at 747. 44 Consequently, it is uncertain whether the statute permits the physician to consider his duty to the patient to be paramount to his duty to the fetus, or whether it requires the physician to make a "trade-off" between the woman's health and additional percentage points of fetal survival. Serious ethical and constitutional difficulties, that we do not address, lurk behind this ambiguity. We hold only that where conflicting duties of this magnitude are involved, the State, at the least, must proceed with greater precision before it may subject a physician to possible criminal sanctions. 45 Appellants' further suggestion that § 5(a) requires only that the physician make a good-faith selection of the proper abortion procedure finds no support in either the language or an authoritative interpretation of the statute.26 Certainly, there is nothing to suggest a mens rea requirement with respect to a decision whether a particular abortion method is necessary in order to preserve the life or health of the woman. The choice of an appropriate abortion technique, as the record in this case so amply demonstrates, is a complex medical judgment about which experts can—and do—disagree. The lack of any scienter requirement exacerbates the uncertainty of the statute. We conclude that the standard-of-care provision, like the viability-determination requirement, is void for vagueness. 46 The judgment of the District Court is affirmed. 47 It is so ordered. 48 Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting. 49 Because the Court now withdraws from the States a substantial measure of the power to protect fetal life that was reserved to them in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and reaffirmed in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), I file this dissent. 50 * In Roe v. Wade, the Court defined the term "viability" to signify the stage at which a fetus is "potentially able to live outside the mother's womb, albeit with artificial aid." This is the point at which the State's interest in protecting fetal life becomes sufficiently strong to permit it to "go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother." 410 U.S., at 163-164, 93 S.Ct., at 732. 51 The Court obviously crafted its definition of viability with some care, and it chose to define that term not as that stage of development at which the fetus actually is able or actually has the ability to survive outside the mother's womb, with or without artificial aid, but as that point at which the fetus is potentially able to survive. In the ordinary usage of these words, being able and being potentially able do not mean the same thing. Potential ability is not actual ability. It is ability "[e]xisting in possibility, not in actuality." Webster's New International Dictionary (2d ed. 1958). The Court's definition of viability in Roe v. Wade reaches an earlier point in the development of the fetus than that stage at which a doctor could say with assurance that the fetus would survive outside the womb. 52 It was against this background that the Pennsylvania statute at issue here was adopted and the District Court's judgment was entered. Insofar as Roe v. Wade was concerned, Pennsylvania could have defined viability in the language of that case—"potentially able to live outside the mother's womb"—and could have forbidden all abortions after this stage of any pregnancy. The Pennsylvania Act, however, did not go so far. It forbade entirely only those abortions where the fetus had attained viability as defined in § 2 of the Act, that is, where the fetus had "the capability . . . to live outside the mother's womb albeit with artificial aid." Pa.Stat.Ann., Tit. 35, § 6602 (Purdon 1977) (emphasis added). But the State, understanding that it also had the power under Roe v. Wade to regulate where the fetus was only "potentially able" to exist outside the womb, also sought to regulate, but not forbid, abortions where there was sufficient reason to believe that the fetus, "may be viable"; this language was reasonably believed by the State to be equivalent to what the Court meant in 1973 by the term "potentially able to live outside the mother's womb." Under § 5(a), abortionists must not only determine whether the fetus is viable but also whether there is sufficient reason to believe that the fetus may be viable. If either condition exists, the method of abortion is regulated and a standard of care imposed. Under § 5(d), breach of these regulations exposes the abortionist to the civil and criminal penalties that would be applicable if a live birth rather than an abortion had been intended. 53 In the original opinion and judgment of the three-judge court, Planned Parenthood Assn. v. Fitzpatrick, 401 F.Supp. 554 (E.D.Pa.1975), § 5(a) was invalidated on two grounds: first, because it required a determination of viability and because that term, as defined in § 2, was held to be unenforceably vague; and second, because the section required a determination of when a fetus may be viable, it was thought to regulate a period of time prior to viability and was therefore considered to be invalid under this Court's cases. The District Court was not disturbed by the fact that its opinion declared the term "viability" as used in this Court's opinion in Roe v. Wade to be hopelessly vague since it understood that opinion also to have given specific content to that term and to have held that a State could not consider any fetus to be viable prior to the 24th week of pregnancy. This was concrete guidance to the States, and because the "may be viable" provision of § 5(a) "tend[ed] to carve out a . . . period of time of potential viability [which might cover a period of] 20 to 26 weeks gestation," 401 F.Supp., at 572, the State was unlawfully regulating the second trimester. Because it sought to enforce § 5(a), § 5(d) was also invalidated. Section 6(b), which forbade all abortions after viability, also fell to the challenge of vagueness. 54 The District Court's judgment was pending on appeal here when Planned Parenthood of Central Missouri v. Danforth, supra, was argued and decided. There, the state Act defined viability as "that stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-supportive systems." 428 U.S., at 63, 96 S.Ct., at 2838. This definition was attacked as impermissibly expanding the Roe v. Wade definition of viability; the "mere possibility of momentary survival," it was argued, was not the proper standard under the Court's cases. 428 U.S., at 63, 96 S.Ct., at 2838. It was also argued in this Court that the "may be" language of the Missouri statute was vulnerable for the same reasons that the "may be" provision of the Pennsylvania statute had been invalidated by the District Court in the case now before us. Brief for Appellants, O.T.1975, No. 74-1151, pp. 65-66, quoting Planned Parenthood Ass'n v. Fitzpatrick, supra, 401 F.Supp., at 571-572. This Court, however, rejected these arguments and sustained the Missouri definition as consistent with Roe, "even when read in conjunction with" another section of the Act that proscribed all abortions not necessary to preserve the life or health of the mother "unless the attending physician first certifies with reasonable medical certainty that the fetus is not viable," that is, that it has not reached that stage at which it may exist indefinitely outside the mother's womb. 428 U.S., at 63-64, 96 S.Ct., at 2838. The Court noted that one of the appellant doctors "had no particular difficulty with the statutory definition" and added that the Missouri definition might well be considered more favorable to the complainants than the Roe definition since the "point when life can be 'continued indefinitely outside the womb' may well occur later in pregnancy than the point where the fetus is 'potentially able to live outside the mother's womb.' " 428 U.S., at 64, 96 S.Ct., at 2838. The Court went on to make clear that it was not the proper function of the legislature or of the courts to place viability at a specific point in the gestation period. The "flexibility of the term," which was essentially a medical concept, was to be preserved. Ibid. The Court plainly reaffirmed what it had held in Roe v. Wade : Viability refers not only to that stage of development when the fetus actually has the capability of existing outside the womb but also to that stage when the fetus may have the ability to do so. The Court also reaffirmed that at any time after viability, as so understood, the State has the power to prohibit abortions except when necessary to preserve the life or health of the mother. 55 In light of Danforth, several aspects of the District Court's judgment in the Fitzpatrick case were highly questionable, and that judgment was accordingly vacated and remanded to the District Court for reconsideration. Beal v. Franklin, 428 U.S. 901, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976). A drastically modified judgment eventuated. The term "viability" could not be deemed vague in itself, and hence the definition of that term in § 2 and the proscription of § 6(b) against post-viability abortions were sustained. The District Court, however, in a conclusory opinion adhered to its prior view that § 5(a) was unconstitutional, as was § 5(d) insofar as it related to § 5(a). 56 Affirmance of the District Court's judgment is untenable. The District Court originally thought § 5(a) was vague because the term "viability" was itself vague. The Court scotched that notion in Danforth, and the District Court then sustained the Pennsylvania definition of viability. In doing so, it necessarily nullified the major reason for its prior invalidation of § 5(a), which was that it incorporated the supposedly vague standard of § 2. But the District Court had also said that the "may be viable" standard was invalid as an impermissible effort to regulate a period of "potential" viability. This was the sole remaining articulated ground for invalidating § 5(a). But this is the very ground that was urged and rejected in Danforth, where this Court sustained the Missouri provision defining viability as the stage at which the fetus "may" have the ability to survive outside the womb and reaffirmed the flexibility concept of viability announced in Roe. 57 In affirming the District Court, the Court does not in so many words agree with the District Court but argues that it is too difficult to know whether the Pennsylvania Act simply intended, as the State urges, to go no further than Roe permitted in protecting a fetus that is potentially able to survive or whether it intended to carve out a protected period prior to viability as defined in Roe. The District Court, although otherwise seriously in error, had no such trouble with the Act. It understood the "may be viable" provision as an attempt to protect a period of potential life, precisely the kind of interest that Roe protected but which the District Court erroneously thought the State was not entitled to protect.1 Danforth, as I have said, reaffirmed Roe in this respect. Only those with unalterable determination to invalidate the Pennsylvania Act can draw any measurable difference insofar as vagueness is concerned between "viability" defined as the ability to survive and "viability" defined as that stage at which the fetus may have the ability to survive. It seems to me that, in affirming, the Court is tacitly disowning the "may be" standard of the Missouri law as well as the "potential ability" component of viability as that concept was described in Roe. This is a further constitutionally unwarranted intrusion upon the police powers of the States. II 58 Apparently uneasy with its work, the Court has searched for and seized upon two additional reasons to support affirmance, neither of which was relied upon by the District Court. The Court first notes that under § 5(d), failure to make the determinations required by § 5(a), or otherwise to comply with its provisions, subjects the abortionist to criminal prosecution under those laws that "would pertain to him had the fetus been a child who was intended to be born and not aborted." Although concededly the Pennsylvania law of criminal homicide conditions guilt upon a finding that the defendant intentionally, knowingly, recklessly, or negligently caused the death of another human being, the Court nevertheless goes on to declare that the abortionist could be successfully prosecuted for criminal homicide without any such fault or omission in determining whether or not the fetus is viable or may be viable. This alleged lack of a scienter requirement, the Court says, fortifies its holding that § 5(a) is void for vagueness. 59 This seems to me an incredible construction of the Pennsylvania statutes. The District Court suggested nothing of the sort, and appellees focus entirely on § 5(a), ignoring the homicide statutes. The latter not only define the specified degrees of scienter that are required for the various homicides, but also provide that ignorance or mistake as to a matter of fact, for which there is a reasonable explanation, is a defense to a homicide charge if it negatives the mental state necessary for conviction. Pa.Stat.Ann., Tit. 18, § 304 (Purdon 1973). Given this background, I do not see how it can be seriously argued that a doctor who makes a good-faith mistake about whether a fetus is or is not viable could be successfully prosecuted for criminal homicide. This is the State's submission in this Court; the court below did not address the matter; and at the very least this is something the Court should not decide without hearing from the Pennsylvania courts. 60 Secondly, the Court proceeds to find the standard-of-care provision in § 5(a) to be impermissibly vague, particularly because of an asserted lack of a mens rea requirement. I am unable to agree. In the first place, the District Court found fault with § 5(a) only because of its viability and "may be viable" provisions. It neither considered nor invalidated the standard-of-care provision. Furthermore, the complaint did not expressly attack § 5(a) on this ground, and plaintiffs' request for findings and conclusions challenged the section only on the grounds of the overbreadth and vagueness of the viability and the "may be viable" provisions. There was no request to invalidate the standard-of-care provision. Also, the plaintiffs' post-trial brief dealt with the matter in only the most tangential way. Appellees took no cross-appeal; and although they argue the matter in their brief on the merits in this Court, I question whether they are entitled to have still another provision of the Pennsylvania Act declared unconstitutional in this Court in the first instance, thereby and to that extent expanding the relief they obtained in the court below.2 United States v. New York Telephone Co., 434 U.S. 159, 166 n. 8, 98 S.Ct. 364, 369 n. 8, 54 L.Ed.2d 376 (1977). 61 In any event, I cannot join the Court in its determined attack on the Pennsylvania statute. As in the case with a mistaken viability determination under § 5(a), there is no basis for asserting the lack of a scienter requirement in a prosecution for violating the standard-of-care provision. I agree with the State that there is not the remotest chance that any abortionist will be prosecuted on the basis of a goodfaith mistake regarding whether to abort, and if he does, with respect to which abortion technique is to be used. If there is substantial doubt about this, the Court should not complain of a lack of an authoritative state construction, as it does, but should direct abstention and permit the state courts to address the issues in the light of the Pennsylvania homicide laws with which those courts are so much more familiar than are we or any other federal court. III 62 Although it seems to me that the Court has considerably narrowed the scope of the power to forbid and regulate abortions that the States could reasonably have expected to enjoy under Roe and Danforth, the Court has not yet invalidated a statute simply requiring abortionists to determine whether a fetus is viable and forbidding the abortion of a viable fetus except where necessary to save the life or health of the mother. Nor has it yet ruled that the abortionist's determination of viability under such a standard must be final and is immune to civil or criminal attack. Sections 2 and 6(b) of the Pennsylvania law, for example, remain undisturbed by the District Court's judgment or by the judgment of this Court. 63 What the Court has done is to issue a warning to the States, in the name of vagueness, that they should not attempt to forbid or regulate abortions when there is a chance for the survival of the fetus, but it is not sufficiently large that the abortionist considers the fetus to be viable. This edict has no constitutional warrant, and I cannot join it. 1 Section 5 reads in pertinent part: "(a) Every person who performs or induces an abortion shall prior thereto have made a determination based on his experience, judgment or professional competence that the fetus is not viable, and if the determination is that the fetus is viable or if there is sufficient reason to believe that the fetus may be viable, shall exercise that degree of professional skill, care and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted and the abortion technique employed shall be that which would provide the best opportunity for the fetus to be aborted alive so long as a different technique would not be necessary in order to preserve the life or health of the mother. * * * * * "(d) Any person who fails to make the determination provided for in subsection (a) of this section, or who fails to exercise the degree of professional skill, care and diligence or to provide the abortion technique as provided for in subsection (a) of this section . . . shall be subject to such civil or criminal liability as would pertain to him had the fetus been a child who was intended to be born and not aborted." 2 The three-judge court was designated in September 1974 pursuant to 28 U.S.C. § 2281 (1970 ed.). This statute was repealed by Pub.L. 94-381, § 1, 90 Stat. 1119, but the repeal did not apply to any action commenced on or before August 12, 1976. § 7. 3 The plaintiffs named in the complaint, as amended, were Planned Parenthood Association of Southeastern Pennsylvania, Inc., a nonprofit corporation; appellee John Franklin, M.D., a licensed and board-certified obstetrician and gynecologist and medical director of Planned Parenthood; Concern for Health Options: Information, Care and Education, Inc. (CHOICE), a nonprofit corporation; and Clergy Consultation Service of Northeastern Pennsylvania, a voluntary organization. Later, appellee Obstetrical Society of Philadelphia intervened as a party plaintiff. Named as original defendants were F. Emmett Fitzpatrick, Jr., District Attorney of Philadelphia County, and Helene Wohlgemuth, the then Secretary of Welfare of the Commonwealth of Pennsylvania. Subsequently, the Commonwealth's Attorney General and the Commonwealth itself intervened as parties defendant. The District Court, in a ruling not under challenge here, eventually dismissed Planned Parenthood, CHOICE, and Clergy Consultation as plaintiffs. Planned Parenthood Assn. v. Fitzpatrick, 401 F.Supp. 554, 562, 593-594 (1975). The present posture of the case, as a consequence, is a suit between Dr. Franklin and the Obstetrical Society, as plaintiffs-appellees, and Aldo Colautti, the present Secretary of Welfare, the Attorney General, the Commonwealth, and the District Attorney, as defendants-appellants. We agree with the District Court's ruling in the cited 1975 opinion, 401 F.Supp., at 561-562, 594, that under Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973), the plaintiff physicians have standing to challenge § 5(a), and that their claims present a justiciable controversy. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 62, 96 S.Ct. 2831, 2837, 49 L.Ed.2d 788 (1976). 4 The court preliminarily enjoined the enforcement of the spousal- and parental-consent requirements, § 3(b); the penal provisions of § 3(e); the requirements of § 5(a) and (d); the restriction on abortions subsequent to viability, § 6(b); the facility-approval requirement, § 6(c); the reporting provisions, § 6(d); most of the penal provisions of § 6(i); the restrictions on funding of abortions, § 7; and the definitions of "viable" and "informed consent" in § 2. Record, Doc.No. 16; see Planned Parenthood Assn. v. Fitzpatrick, 401 F.Supp., at 559. 5 The court ruled that "the present action is determined to be a class action on behalf of the class of Pennsylvania physicians who perform abortions and/or counsel their female patients with regard to family planning and pregnancy including the option of abortion, and the sub-class of members of the Obstetrical Society of Philadelphia who practice in Pennsylvania." Record, Doc.No. 57. 6 See also Doe v. Zimmerman, 405 F.Supp. 534 (M.D.Pa.1975). 7 In Maher v. Roe, 432 U.S. 464, 471-477, 97 S.Ct. 2376, 2381-2384, 53 L.Ed.2d 484 (1977), the Court ruled that a State may withhold funding to indigent women even though such withholding influences the abortion decision prior to viability. The Court, however, reaffirmed that a State during this period may not impose direct obstacles—such as criminal penalties—to further its interest in the potential life of the fetus. 8 The plaintiffs-appellees introduced evidence that modern medical technology makes it possible to detect whether a fetus is afflicted with such disorders as Tay-Sachs disease and Down's syndrome (mongolism). Such testing, however, often cannot be completed until after 18-20 weeks' gestation. App. 53a-56a (testimony of Hope Punnett, Ph.D.). 9 Appellants do not argue that federal-court abstention is required on this issue, nor is it appropriate, given the extent of the vagueness that afflicts § 5(a), for this Court to abstain sua sponte. See Bellotti v. Baird, 428 U.S. 132, 143 n. 10, 96 S.Ct. 2857, 2864 n. 10, 49 L.Ed.2d 844 (1976.) 10 The statute says that viable "means," not "includes," the capability of a fetus "to live outside the mother's womb albeit with artificial aid." As a rule, "[a] definition which declares what a term 'means' . . . excludes any meaning that is not stated." 2A C. Sands, Statutes and Statutory Construction § 47.07 (4th ed. Supp.1978). 11 Since our ruling today is confined to the conclusion that the viability-determination requirement of § 5(a) is impermissibly vague, there is no merit in the dissenting opinion's suggestion, post, at 406, that the Court has "tacitly disown[ed]" the definition of viability as set forth in Roe and Planned Parenthood. On the contrary, as noted above, supra, at 388, we reaffirm what was said in those decisions about this critical concept. 12 Section 5(a) does provide that the determination of viability is to be based on the physician's "experience, judgment or professional competence." A subjective standard keyed to the physician's individual skill and abilities, however, is different from a requirement that the physician be culpable or blameworthy for his performance under such a standard. Moreover, as noted above, it is ambiguous whether this subjective language applies to the second condition that activates the duty to the fetus, namely, "sufficient reason to believe that the fetus may be viable." 13 "[T]he requirement of a specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid. . . . The requirement that the act must be willful or purposeful may not render certain, for all purposes, a statutory definition of the crime which is in some respects uncertain. But it does relieve the statute of the objection that it punishes without warning an offense of which the accused was unaware." Screws v. United States, 325 U.S. 91, 101-102, 65 S.Ct. 1031, 1035-1036, 89 L.Ed. 1495 (1945) (plurality opinion). 14 See App. 5a-6a, 10a, 17a (testimony of Louis Gerstley III, M.D.); id., at 77a-78a, 81a (testimony of Thomas W. Hilgers, M.D.); id., at 93 a-101a, 109a, 112a (testimony of William J. Keenan, M.D.). 15 See id., at 8a (testimony of Dr. Gerstley) (viability means 5% chance of survival, "certainly at least two to three percent" ); id., at 104a (testimony of Dr. Keenan) (10% chance of survival would be viable); id., at 144a (deposition of John Franklin, M.D.) (viability means "ten percent or better" probability of survival); id., at 132a (testimony of Arturo Hervada, M.D.) (it is misleading to be obsessed with a particular percentage figure). 16 The dissenting opinion questions whether the alleged vagueness of the standard-of-care provision is properly before us, since it is said that this issue was not reached by the District Court. That court, however, declared § 5(a) unconstitutional in its entirety, including both the viability-determination requirement and the standard-of-care provision. App. 243a. Appellees, as the prevailing parties, may of course assert any ground in support of that judgment, "whether or not that ground was relied upon or even considered by the trial court." Dandridge v. Williams, 397 U.S. 471, 475 n. 6, 90 S.Ct. 1153, 1156, 25 L.Ed.2d 491 (1970). 17 In Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 81-84, 96 S.Ct. 2831, 2846-2848, 49 L.Ed.2d 788 (1976), the Court struck down a provision similar to the first part of the standard-of-care provision of § 5(a), on the ground that it applied at all stages of gestation and not just to the period subsequent to viability. Except to the extent that § 5(a) is also alleged to apply prior to the point of viability, a contention we do not reach, see supra, at 390, appellees do not challenge the standard-of-care provision on overbreadth grounds. 18 App. 11a (testimony of Dr. Gerstley); id., at 28a (testimony of Dr. Franklin). 19 See, e. g., id., at 28a (testimony of Dr. Franklin); id., at 36a (testimony of Fred Mecklenburg, M.D.). 20 There was testimony that dilation and curettage and dilation and suction, two of the more common methods of abortion in the first trimester, normally are not used in the second trimester. Id., at 39a-40a (testimony of Dr. Mecklenburg). 21 Id., at 23a (testimony of Dr. Franklin); Id., at 43a (testimony of Dr. Mecklenburg); id., at 73a (testimony of Dr. Hilgers). 22 See, e. g., id., at 13a (testimony of Dr. Gerstley); id., at 28a (testimony of Dr. Franklin). 23 See, e. g., id., at 11a-12a (testimony of Dr. Gerstley); id., at 28a (testimony of Dr. Franklin). 24 See id., at 11a (testimony of Dr. Gerstley); id., at 37a-38a (testimony of Dr. Mecklenburg); id., at 72a (testimony of Dr. Hilgers). 25 Id., at 12a (testimony of Dr. Gerstley). 26 Appellants, again, do not argue or suggest that we should abstain from passing on this issue. See n. 9, supra. 1 The District Court observed: "Roe makes it abundantly clear that the compelling point at which a state in the interest of fetal life may regulate, or even prohibit, abortion is not before the 24th week of gestation of the fetus, at which point the Supreme Court recognized the fetus then presumably has the capability of meaningful life outside the mother's womb. Consequently, Roe recognizes only two periods concerning fetuses. The period prior to viability, when the state may not regulate in the interest of fetal life, and the period after viability, when it may prohibit altogether or regulate as it sees fit. The 'may be viable' provision of Section 5(a) tends to carve out a third period of time of potential viability." Planned Parenthood Assn. v. Fitzpatrick, 401 F.Supp. 554, 572 (E.D.Pa.1975) (emphasis added). Thus, the court interpreted the term "viability" more restrictively than Roe, read in its entirety, permitted but coextensively with the definition in § 2. Based on its misapprehension of Roe, the court condemned § 5(a) essentially for reaching the period when the fetus has the potential "capability of meaningful life outside the mother's womb." Ibid. 2 Unquestionably, rehabilitating § 5(a) to satisfy this Court's opinion will be a far more extensive and more difficult task than that which the State faced under the District Court's ruling.

45

439 U.S. 438 99 S.Ct. 698 58 L.Ed.2d 717 Simon L. LEIS, Jr., et al.v.Larry FLYNT et al. No. 77-1618. Jan. 15, 1979. Rehearing Denied May 14, 1979. See 441 U.S. 956, 99 S.Ct. 2185. PER CURIAM. 1 Petitioners, the judges of the Court of Common Pleas of Hamilton County, Ohio, and the Hamilton County prosecutor, seek relief from a decision of the United States Court of Appeals for the Sixth Circuit. The Court of Appeals upheld a Federal District Court injunction that forbids further prosecution of respondents Larry Flynt and Hustler Magazine, Inc., until respondents Herald Fahringer and Paul Cambria are tendered a hearing on their applications to appear pro hac vice in the Court of Common Pleas on behalf of Flynt and Hustler Magazine. Petitioners contend that the asserted right of an out-of-state lawyer to appear pro hac vice in an Ohio court does not fall among those interests protected by the Due Process Clause of the Fourteenth Amendment. Because we agree with this contention, we grant the petition for certiorari and reverse the judgment of the Sixth Circuit.1 2 Flynt and Hustler Magazine were indicted on February 8, 1977, for multiple violations of Ohio Rev.Code Ann. § 2907.31 (1975), which prohibits the dissemination of harmful material to minors. At the arraignment on February 25, local counsel for Flynt and Hustler presented an entry of counsel form that listed Fahringer and Cambria as counsel for both defendants. Neither lawyer was admitted to practice law in Ohio.2 The form was the one used by members of the Ohio Bar, and it neither constituted an application for admission pro hac vice nor alerted the court that Fahringer and Cambria were not admitted to practice in Ohio. The judge presiding at the arraignment routinely endorsed the form but took no other action with respect to the two out-of-state lawyers.3 3 The case was transferred as a matter of course to Judge Morrissey, who had before him another active indictment against Flynt and Hustler Magazine. Fahringer and Cambria made no application for admission pro hac vice to him or any other judge. At a pretrial conference on March 9 Judge Morrissey advised local counsel that neither out-of-state lawyer would be allowed to represent Flynt or Hustler Magazine. Fahringer and Cambria appeared in person before Judge Morrissey for the first time at a motions hearing on April 8, where they expressed their interest in representing the defendants. Judge Morrissey summarily dismissed the request. Respondents then commenced a mandamus action in the Ohio Supreme Court seeking to overturn the denial of admission. They also filed an affidavit of bias and prejudice seeking to remove Judge Morrissey from the case. The Ohio court dismissed the mandamus action but did remove Judge Morrissey, stating that while it found no evidence of bias or prejudice, trial before a different judge would avoid even the appearance of impropriety. The new trial judge ruled that the Ohio Supreme Court's dismissal of the mandamus action bound him to deny Fahringer and Cambria permission to represent Flynt and Hustler Magazine, but he did allow both of them to work with in-state counsel in preparing the case. 4 Respondents next filed this suit in the United States District Court for the Southern District of Ohio to enjoin further prosecution of the criminal case until the state trial court held a hearing on the contested pro hac vice application. The court ruled that the lawyers' interest in representing Flynt and Hustler Magazine was a constitutionally protected property right which petitioners had infringed without according the lawyers procedural due process. 434 F.Supp. 481 (1977). Further prosecution of Flynt and Hustler Magazine therefore was enjoined until petitioners tendered Fahringer and Cambria the requested hearing. The Sixth Circuit affirmed, holding that the lawyers could not be denied the privilege of appearing pro hac vice "without a meaningful hearing, the application of a reasonably clear legal standard and the statement of a rational basis for exclusion." 574 F.2d 874, 879 (1978). 5 As this Court has observed on numerous occasions, the Constitution does not create property interests. Rather it extends various procedural safeguards to certain interests "that stem from an independent source such as state law." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); see Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30 (1978); Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Paul v. Davis, 424 U.S. 693, 709-710, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976); Goss v. Lopez, 419 U.S. 565, 572-574, 95 S.Ct. 729, 735-736, 49 L.Ed.2d 725 (1975); Perry v. Sindermann, 408 U.S. 593, 602, n. 7, 92 S.Ct. 2694, 2700 n. 7, 33 L.Ed.2d 570 (1972). The Court of Appeals evidently believed that an out-of-state lawyer's interest in appearing pro hac vice in an Ohio court stems from some such independent source. It cited no state-law authority for this proposition, however, and indeed noted that "Ohio has no specific standards regarding pro hac vice admissions . . .." 574 F.2d, at 879. Rather the court referred to the prevalence of pro hac vice practice in America courts and instances in our history where counsel appearing pro hac vice have rendered distinguished service. We do not question that the practice of courts in most States is to allow an out-of-state lawyer the privilege of appearing upon motion, especially when he is associated with a member of the local bar. In view of the high mobility of the bar, and also the trend toward specialization, perhaps this is a practice to be encouraged. But it is not a right granted either by statute or the Constitution. Since the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States and the District of Columbia within their respective jurisdictions. The States prescribe the qualifications for admission to practice and the standards of professional conduct. They also are responsible for the discipline of lawyers.4 6 A claim of entitlement under state law, to be enforceable, must be derived from statute or legal rule or through a mutually explicit understanding. See Perry, supra, 408 U.S., at 601-602, 92 S.Ct., at 2699-2700. The record here is devoid of any indication that an out-of-state lawyer may claim such an entitlement in Ohio, where the rules of the Ohio Supreme Court expressly consign the authority to approve a pro hac vice appearance to the discretion of the trial court. N. 2, supra. Even if, as the Court of Appeals believed, respondents Fahringer and Cambria had "reasonable expectations of professional service," 574 F.2d, at 879, they have not shown the requisite mutual understanding that they would be permitted to represent their clients in any particular case in the Ohio courts. The speculative claim that Fahringer's and Cambria's reputation might suffer as the result of the denial of their asserted right cannot by itself make out an injury to a constitutionally protected interest. There simply was no deprivation here of some right previously held under state law. Id., at 708-709, 96 S.Ct., at 1164. 7 Nor is there a basis for the argument that the interest in appearing pro hac vice has its source in federal law. See Paul v. Davis, supra, 424 U.S., at 699-701, 96 S.Ct., at 1159-1160. There is no right of federal origin that permits such lawyers to appear in state courts without meeting that State's bar admission requirements. This Court, on several occasions, has sustained state bar rules that excluded out-of-state counsel from practice altogether or on a case-by-case basis. See Norfolk & Western R. Co. v. Beatty, 423 U.S. 1009, 96 S.Ct. 439, 46 L.Ed.2d 381 (1975), summarily aff'g 400 F.Supp. 234 (SD Ill.); Brown v. Supreme Court of Virginia, 414 U.S. 1034, 94 S.Ct. 533, 38 L.Ed.2d 327 (1973), summarily aff'g 359 F.Supp. 549 (ED Va.). Cf. Hicks v. Miranda, 422 U.S. 332, 343-345, 95 S.Ct. 2281, 2288-2289, 45 L.Ed.2d 223 (1975). These decisions recognize that the Constitution does not require that because a lawyer has been admitted to the bar of one State, he or she must be allowed to practice in another. See Ginsburg v. Kovrak, 392 Pa. 143, 139 A.2d 889, appeal dismissed for want of substantial federal question, 358 U.S. 52, 79 S.Ct. 95, 3 L.Ed.2d 46 (1958). Accordingly, because Fahringer and Cambria did not possess a cognizable property interest within the terms of the Fourteenth Amendment, the Constitution does not obligate the Ohio courts to accord them procedural due process in passing on their application for permission to appear pro hac vice before the Court of Common Pleas of Hamilton County.5 8 The petition for writ of certiorari is granted, the judgment of the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. 9 It is so ordered. 10 Mr. Justice WHITE would grant certiorari and set the case for oral argument. 11 Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting. 12 A lawyer's interest in pursuing his calling is protected by the Due Process Clause of the Fourteenth Amendment.1 The question presented by this case is whether a lawyer abandons that protection when he crosses the border of the State which issued his license to practice. 13 The Court holds that a lawyer has no constitutionally protected interest in his out-of-state practice. In its view, the interest of the lawyer is so trivial that a judge has no obligation to give any consideration whatsoever to the merits of a pro hac vice request, or to give the lawyer any opportunity to advance reasons in support of his application. The Court's square holding is that the Due Process Clause of the Fourteenth Amendment simply does not apply to this kind of ruling by a state trial judge.2 14 The premises for this holding can be briefly stated. A nonresident lawyer has no right, as a matter of either state or federal law, to appear in an Ohio court. Absent any such enforceable entitlement, based on an explicit rule or mutual understanding, the lawyer's interest in making a pro hac vice appearance is a mere "privilege" that Ohio may grant or withhold in the unrestrained discretion of individual judges. The conclusion that a lawyer has no constitutional protection against a capricious exclusion3 seems so obvious to the majority that argument of the question is unnecessary. Summary reversal is the order of the day. 15 A few years ago the Court repudiated a similar syllogism which had long supported the conclusion that a parolee has no constitutionally protected interest in his status.4 Accepting the premise that the parolee has no "right" to preserve his contingent liberty, the Court nevertheless concluded that the nature of his status, coupled with the State's "implicit promise" that it would not be revoked arbitrarily, was sufficient to require constitutional protection. Morrissey v. Brewer, 408 U.S. 471, 481-482, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484.5 As the Court observed, it "is hardly useful any longer to try to deal with this problem in terms of whether the parolee's liberty is a 'right' or a 'privilege.' " Id., at 482, 92 S.Ct., at 2601. In my judgment, it is equally futile to try to deal with the problem presented by this case in terms of whether the out-of-state pursuit of a lawyer's calling is based on an "explicit," or an "enforceable" "entitlement" rather than a so-called "privilege." Instead, we should examine the nature of the activity and the implicit promise Ohio has made to these petitioners. 16 * The notion that a state trial judge has arbitrary and unlimited power to refuse a nonresident lawyer permission to appear in his courtroom is nothing but a remnant of a bygone era. Like the body of rules that once governed parole, the nature of law practice has undergone a metamorphosis during the past century. Work that was once the exclusive province of the lawyer is now performed by title companies, real estate brokers, corporate trust departments, and accountants. Rules of ethics that once insulated the local lawyer from competition are now forbidden by the Sherman Act6 and by the First Amendment to the Constitution of the United States.7 Interstate law practice and multistate laws firms are now commonplace.8 Federal questions regularly arise in state criminal trials and permeate the typical lawyer's practice. Because the assertion of federal claims or defenses is often unpopular, "advice and assistance by an out-of-state lawyer may be the only means available for vindication."9 The "increased specialization and high mobility"10 of today's Bar is a consequence of the dramatic change in the demand for legal services that has occurred during the past century. 17 History attests to the importance of pro hac vice appearances. As Judge Merritt, writing for the Court of Appeals, explained: 18 "Nonresident lawyers have appeared in many of our most celebrated cases. For example, Andrew Hamilton, a leader of the Philadelphia bar, defended John Peter Zenger in New York in 1735 in colonial America's most famous freedom-of-speech case. Clarence Darrow appeared in many states to plead the cause of an unpopular client, including the famous Scopes trial in Tennessee where he opposed another well-known, out-of-state lawyer, William Jennings Bryan. Great lawyers from Alexander Hamilton and Daniel Webster to Charles Evans Hughes and John W. Davis were specially admitted for the trial of important cases in other states. A small group of lawyers appearing pro hac vice inspired and initiated the civil rights movement in its early stages. In a series of cases brought in courts throughout the South, out-of-state lawyers Thurgood Marshall, Constance Motley and Spottswood Robinson, before their appointments to the federal bench, developed the legal principles which gave rise to the civil rights movement. 19 "There are a number of reasons for this tradition. 'The demands of business and the mobility of our society' are the reasons given by the American Bar Association in Canon 3 of the Code of Professional Responsibility. That Canon discourages 'territorial limitations' on the practice of law, including trial practice. There are other reasons in addition to business reasons. A client may want a particular lawyer for a particular kind of case, and a lawyer may want to take the case because of the skill required. Often, as in the case of Andrew Hamilton, Darrow, Bryan and Thurgood Marshall, a lawyer participates in a case out of a sense of justice. He may feel a sense of duty to defend an unpopular defendant and in this way to give expression to his own moral sense. These are important values, both for lawyers and clients, and should not be denied arbitrarily." 574 F.2d 874, 878-879 (CA6 1978) (footnotes omitted).11 20 The modern examples identified by Judge Merritt, though more illustrious than the typical pro hac vice appearance, are not rare exceptions to a general custom of excluding nonresident lawyers from local practice. On the contrary, appearances by out-of-state counsel have been routine throughout the country for at least a quarter of a century.12 The custom is so well recognized that, as Judge Friendly observed in 1966, there "is not the slightest reason to suppose" that a qualified lawyer's pro hac vice request will be denied.13 21 This case involves a pro hac vice application by qualified legal specialists;14 no legitimate reason for denying their request is suggested by the record.15 They had been retained to defend an unpopular litigant in a trial that might be affected by local prejudices and attitudes.16 It is the classic situation in which the interests of justice would be served by allowing the defendant to be represented by counsel of his choice. 22 The interest these lawyers seek to vindicate is not merely the pecuniary goal that motivates every individual's attempt to pursue his calling.17 It is the profession's interest in discharging its responsibility for the fair administration of justice in our adversary system. The nature of that interest is surely worthy of the protection afforded by the Due Process Clause of the Fourteenth Amendment. II 23 In the past, Ohio has implicitly assured out-of-state practitioners that they are welcome in Ohio's courts unless there is a valid, articulable reason for excluding them. Although the Ohio Supreme Court dismissed respondents' petition for an extraordinary writ of mandamus in this case, it has not dispelled that assurance because it did not purport to pass on the merits of their claim.18 In my opinion the State's assurance is adequate to create an interest that qualifies as "property" within the meaning of the Due Process Clause. 24 The District Court found as a fact that Ohio trial judges routinely permit out-of-state counsel to appear pro hac vice.19 This regular practice is conducted pursuant to the Rules of the Supreme Court of Ohio,20 Ohio's Code of Professional Responsibility,21 rules of each local court,22 and a leading opinion of the Ohio Court of Appeals identifying criteria that should inform a trial judge's discretion in acting on pro hac vice applications.23 While it is unquestionably true that an Ohio trial judge has broad discretion in determining whether or not to allow nonresident lawyers to appear in his court, it is also true that the Ohio rules, precedents, and practice give out-of-state lawyers an unequivocal expectation that the exercise of that discretion will be based on permissible reasons.24 25 In State v. Ross, 36 Ohio App.2d 185, 304 N.E.2d 396 (1973), the leading Ohio case in this area, the Ohio Court of Appeals entertained an appeal from a trial judge's order denying an out-of-state attorney's pro hac vice application. The appellate court exhaustively inquired into the basis for the trial court's action and identified the specific misdeeds of the attorney that justified his exclusion, before concluding that the trial judge had acted properly.25 The only inference that can be drawn from that opinion is that an arbitrary ruling by the trial judge would have constituted reversible error; in this area of Ohio law, at least, the authority to exercise discretion does not include the power to act arbitrarily.26 Having made this implicit promise to respondent attorneys,27 Ohio may not nullify the substance of that promise by providing no procedures to safeguard its meaning. A state requirement that a judge's action in a contested matter be predicated on a permissible reason inevitably gives rise to a procedural requirement that the affected litigants have some opportunity to reason with the judge. See Arnett v. Kennedy, 416 U.S. 134, 167, 94 S.Ct. 1633, 1650, 40 L.Ed.2d 15 (Powell, J., concurring in part).28 III 26 Either the "nature" of the interest in pro hac vice admissions or the "implicit promise" inhering in Ohio custom with respect to those admissions is sufficient to create an interest protected by the Due Process Clause. Moreover, each of these conclusions reinforces the other. 27 The mode of analysis employed by the Court in recent years has treated the Fourteenth Amendment concepts of "liberty" and "property" as though they defined mutually exclusive, and closed categories of interests, with neither shedding any light on the meaning of the other. Indeed, in some of the Court's recent opinions it has implied that not only property but liberty itself does not exist apart from specific state authorization or an express guarantee in the Bill of Rights.29 In my judgment this is not the way the majestic language of the Fourteenth Amendment should be read. 28 As is demonstrated by cases like Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042; Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484; Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90, and Mr. Justice Frankfurter's classic concurring opinion in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162, 71 S.Ct. 624, 643, 95 L.Ed. 817, judicial construction of the words "life, liberty, or property" is not simply a matter of applying the precepts of logic to accepted premises. Rather, it is experience and judgment that have breathed life into the Court's process of constitutional adjudication. It is not only Ohio's experience with out-of-state practitioners, but that of the entire Nation as well, that compels the judgment that no State may arbitrarily reject a lawyer's legitimate attempt to pursue this aspect of his calling. IV 29 It is ironic that this litigation should end as it began—with a judicial ruling on the merits before the parties have been heard on the merits. Pursuant to Rules 19, 23, and 24 of this Court, the only issue discussed in the petition for certiorari and in respondents' brief memorandum in reply is whether "a Writ of Certiorari should issue to review the judgment and opinion of the Sixth Circuit in this matter." Pet. for Cert. 19. This surely is not a case that should be decided before respondents have been given an opportunity to address the merits. Summary reversal "should be reserved for palpably clear cases of . . . error." Eaton v. Tulsa, 415 U.S. 697, 707, 94 S.Ct. 1228, 1234, 39 L.Ed.2d 693 (REHNQUIST, J., dissenting). Such reversals are egregiously improvident when the Court is facing a "novel constitutional question." Pennsylvania v. Mimms, 434 U.S. 106, 124, 98 S.Ct. 330, 340, 54 L.Ed. 331 (STEVENS, J., dissenting).30 Accordingly, I respectfully dissent from the Court's summary disposition of a question of great importance to the administration of justice. 1 Petitioners also contend that the injunction violates principles of abstention embodied in our decisions in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951); and Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). Because of our disposition of the merits of this case, we think it unnecessary to consider that issue. 2 The practice of law in Ohio is governed by Ohio Rev.Code Ann. § 4705.01 (1977), which provides in pertinent part: "No person shall be permitted to practice as an attorney and counselor at law, or to commence, conduct, or defend any action or proceeding in which he is not a party concerned, either by using or subscribing his own name, or the name of another person, unless he has been admitted to the bar by order of the supreme court in compliance with its prescribed and published rules." Rule I, § 8(C), of the Supreme Court Rules for the Government of the Bar of Ohio determines when out-of-state attorneys may appear pro hac vice in Ohio courts: "Admission Without Examination. * * * * * "(C) An applicant under this section shall not engage in the practice of law in this state prior to the filing of his application. To do so constitutes the unauthorized practice of law and will result in a denial of the application. This paragraph (C) does not apply to participation by a nonresident of Ohio in a cause being litigated in this state when such participation is with leave of the judge hearing such cause." 3 The District Court found that Fahringer and Cambria had appeared on behalf of Flynt and Hustler Magazine in other criminal proceedings before the Hamilton County Court of Common Pleas, apparently without being required to do more than they did here. 434 F.Supp. 481, 483 (S.D.Ohio 1977). This prior experience might explain why the local lawyer did not alert the court that Fahringer and Cambria were not admitted to practice in Ohio, but it does not indicate that the first judge's endorsement of the entry form, without more, constituted leave for a pro hac vice appearance. Although the District Court found that the manner in which Fahringer and Cambria sought leave for an appearance comported with the "customary" procedures of the court, ibid., it made no finding that these lawyers justifiably relied on any official explanation of these procedures or had any other ground for believing they actually had received leave of the court to appear. 4 The dissenting opinion relies heavily on dictum in Spanos v. Skouras Theatres Corp., 364 F.2d 161 (CA2 1966). The facts of that case were different from those here, and the precise holding of the court was quite narrow. The court ruled that where a client sought to defend on the ground of illegality against an out-of-state attorney's action for his fee, and where the illegality stemmed entirely from the failure of the client's in-state attorneys to obtain leave for the out-of-state attorney to appear in Federal District Court, the client would not be allowed to escape from the contract through his own default. Id., at 168-169. The balance of the opinion, which declared that "under the privileges and immunities clause of the Constitution no state can prohibit a citizen with a federal claim or defense from engaging an out-of-state lawyer to collaborate with an in-state lawyer and give legal advice concerning it within the state," id., at 170, must be considered to have been limited, if not rejected entirely, by Norfolk & Western R. Co. v. Beatty, 423 U.S. 1009, 96 S.Ct. 439, 46 L.Ed.2d 381 (1975). The dissenting opinion also suggests that a client's interest in having out-of-state counsel is implicated by this decision. Post, at 445-446 n. 2. The court below, however, "did not reach the issue of whether the constitutional rights of Flynt and Hustler Magazine had also been violated," 574 F.2d 874, 877 (CA6 1978), recognizing as it did that a federal-court injunction enjoining a state criminal prosecution on a ground that could be asserted by the defendant in the state proceeding would conflict with this Court's holding in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). 5 The dissenting opinion of Mr. Justice STEVENS argues that a lawyer's right to "pursu[e] his calling is protected by the Due Process Clause . . . when he crosses the border" of the State that licensed him, post, at 445. Mr. Justice STEVENS identifies two "protected" interests that "reinforce" each other. These are said to be "the 'nature' of the interest in pro hac vice admissions [and] the 'implicit promise' inhering in Ohio custom." Post, at 456. The first of these lawyer's "interests" is described as that of "discharging [his] responsibility for the fair administration of justice in our adversary system." Post, at 453. As important as this interest is, the suggestion that the Constitution assures the right of a lawyer to practice in the court of every State is a novel one, not supported by any authority brought to our attention. Such an asserted right flies in the face of the traditional authority of state courts to control who may be admitted to practice before them. See Norfolk & Western R. Co. v. Beatty, supra; ABA Special Committee on Evaluation of Disciplinary Enforcement, Problems and Recommendations in Disciplinary Enforcement 13-14 (Final Draft 1970). If accepted, the constitutional rule advanced by the dissenting opinion would prevent those States that have chosen to bar all pro hac vice appearances from continuing to do so, see, e. g., Cal.Bus. & Prof.Code Ann. §§ 6062, 6068 (West 1974 and Supp. 1978); and would undermine the policy of those States which do not extend reciprocity to out-of-state lawyers, see, e. g., Ariz.Sup.Ct.Rule 28(c) I; Fla. Rules of the Sup. Ct. Relating to Admissions to the Bar, Art, I, § 1. The second ground for due process protection identified in the dissenting opinion is the "implicit promise" inherent in Ohio's past practice in "assur[ing] out-of-state practitioners that they are welcome in Ohio's courts . . .." Post, at 456, 453. We recall no other claim that a constitutional right can be created—as if by estoppel—merely because a wholly and expressly discretionary state privilege has been granted generously in the past. That some courts, in setting the standards for admission within their jurisdiction, have required a showing of cause before denying leave to appear pro hac vice provides no support for the proposition that the Constitution imposes this "cause" requirement on state courts that have chosen to reject it. 1 Konigsberg v. State Bar, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810; Schware v. Board of Bar Examiners, 353 U.S. 232, 238-239, and n. 5, 77 S.Ct. 752, 756 and n. 5, 1 L.Ed.2d 796. 2 Although the Court does not address it, this case also presents the question whether a defendant's interest in representation by nonresident counsel is entitled to any constitutional protection. The clients, as well as the lawyers, are parties to this litigation. Moreover, the Ohio trial judge made it perfectly clear that his ruling was directed at the defendants, and not merely their counsel. After striking the appearances of Fahringer and Cambria, the trial judge stated: "I will tell you this then, Mr. Flynt. [T]he case is set for the 2d of May, 1977. . . . The only thing is that you will be restricted to having an attorney that's admitted to practice in the State of Ohio." Tr. of Proceedings in Common Pleas Court, Hamilton County, Ohio, in No. B-77-0341 on Apr. 8, 1977, p. 5 (emphasis added). A defendant's interest in adequate representation is "perhaps his most important privilege" protected by the Constitution. Powell v. Alabama, 287 U.S. 45, 70, 53 S.Ct. 55, 64, 77 L.Ed. 158. Whatever the scope of a lawyer's interest in practicing in other States may be, Judge Friendly is surely correct in stating that the client's interest in representation by out-of-state counsel is entitled to some measure of constitutional protection: "We are persuaded, however, that where a right has been conferred on citizens by federal law, the constitutional guarantee against its abridgment must be read to include what is necessary and appropriate for its assertion. In an age of increased specialization and high mobility of the bar, this must comprehend the right to bring to the assistance of an attorney admitted in the resident state a lawyer licensed by 'public act' of any other state who is thought best fitted for the task, and to allow him to serve in whatever manner is most effective, subject only to valid rules of courts as to practice before them. Cf. Lefton v. City of Hattiesburg, 333 F.2d 280, 285 (5 Cir. 1964). Indeed, in instances where the federal claim or defense is unpopular, advice and assistance by an out-of-state lawyer may be the only means available for vindication." Spanos v. Skrouras Theatres Corp., 364 F.2d 161, 170 (en banc) (CA2 1966). 3 In this case there is no dispute about the capricious character of the Ohio court's action. Notwithstanding the unblemished professional careers of Fahringer and Cambria—in Ohio and elsewhere—their adherence to the same application procedures that they had followed successfully in the past, and their demonstrated familiarity with the issues involved in the litigation, Judge Morrissey refused to allow them to appear pro hac vice. In full, Judge Morrissey ruled: "Mr. Fahringer and Mr. Cambria are not attorneys of record in this case and will not be permitted to try this case." Tr. of Apr. 8, 1977, supra, at 3. So far as the record shows, this was the second official action taken with respect to the pro hac vice applications of Fahringer and Cambria. In the first, Judge Rupert A. Doan, who presided at Flynt's arraignment, issued two orders designating both lawyers counsel "of record" in case No. B77-031, the case eventually assigned to Judge Morrissey for trial. According to Rule 10(E) of the Rules of Local Practice of the Court of Common Pleas, Hamilton County, Ohio, under which Judges Doan and Morrissey were operating, once a designation order is filed, "such attorney shall become attorney of record . . . and shall not be permitted to withdraw except upon written motion and for good cause shown." Despite Rule 10(E), no objection to the appearance of Fahringer and Cambria, nor any argument either for or against their request, was heard in advance of the final ruling. In point of fact, nothing in the record identifies a legitimate reason for the judge's action. The record does suggest, and in any case the Court's broad holding would certainly encompass, one explanation for Judge Morrissey's unusual ruling, but it can hardly be characterized as legitimate. This is an obscenity case. Conceivably Judge Morrissey has strong views about the distribution of pornographic materials to minors and about lawyers who specialize in defending such activity. Perhaps these are not the kind of lawyers that he wants practicing in his courtroom. That Judge Morrissey reportedly referred to Fahringer as a "fellow traveler" of pornographers is at least consistent with these speculations. Cincinnati Post, Feb. 9, 1977, p. 13. Indeed, after denying respondents' request to have Judge Morrissey removed from the case for bias, the Supreme Court of Ohio without explanation ordered that another judge of the Hamilton County Court of Common Pleas try the case. 4 That syllogism had its adherents well into this century. See Curtis v. Bennett, 351 F.2d 931, 933 (CA8 1965), quoted in Morrissey v. Brewer, 443 F.2d 942, 946 (CA8 1971): "A parole is a matter of grace, not a vested right. . . . [D]iscretion is left to the States as to the manner and terms upon which paroles may be granted and revoked. Federal due process does not require that a parole revocation be predicated upon notice and opportunity to be heard." See also Hyser v. Reed, 115 U.S.App.D.C. 254, 266, 318 F.2d 225, 237 (1963), cert. denied sub nom. Jamison v. Chappell, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315 ("In a real sense the Parole Board in revoking parole occupies the role of parent withdrawing a privilege from an errant child not as punishment but for misuse of the privilege"). 5 "The question is not merely the 'weight' of the individual's interest, but whether the nature of the interest is one within the contemplation of the contemplation of the 'liberty or property' language of the Fourteenth Amendment. . . . "The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. In many cases, the parolee faces lengthy incarceration if his parole is revoked. "We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a 'grievous loss' on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee's liberty is a 'right' or a 'privilege.' By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal." 408 U.S., at 481-482, 92 S.Ct., at 2600. 6 Because the "transactions which create the need for the particular legal services in question frequently are interstate transactions," the practice of law is now regarded as a commercial activity subject to the strictures of the Sherman Act. Goldfarb v. Virginia State Bar, 421 U.S. 773, 783-784, 95 S.Ct. 2004, 2011, 44 L.Ed.2d 572. 7 Lawyers now have a constitutional right to advertise because "significant societal interests are served by such speech." Bates v. State Bar of Arizona, 433 U.S. 350, 364, 97 S.Ct. 2691, 2699, 53 L.Ed.2d 810. 8 "Multistate or interstate practice by attorneys in this country is an expanding phenomenon. While no published quantitative data specifically support that assertion, a variety of established or verifiable facts exist that make the inference virtually indisputable. First is the increased mobility . . . of legal problem-solvers, problem-bringers and hence the legal problems themselves. Second, an outgrowth of the first set of facts is the increasing degree of uniformity of our laws, to a point where we are now commonly confronted with model codes, uniform state acts, federal practice rules (often copied by states) and similar substantive and procedural developments. Third, partly a response to the first two sets of facts and partly a reflection of the growing general complexity of our society, is the gradual change in the character of law practice from a generalist skill to an increasingly specialized one; hence the emergence of lawyers regarded and operating as . . . specialists . . . equipped to cope with problems that transcend jurisdictional boundaries and the legal competence of local generalists." Brakel & Loh, Regulating the Multistate Practice of Law, 50 Wash.L.Rev. 699, 699-700 (1975) (footnote omitted). See also 19 Stan.L.Rev. 856, 869 (1967). 9 Spanos v. Skouras Theatres Corp., 364 F.2d, at 170. 10 Ibid. 11 See also Judge Soper's discussion in In re Ades, 6 F.Supp. 467, 475-476 (Md.1934). 12 Brakel & Loh, supra n. 8, at 702, and n. 9; Note, Attorneys: Interstate and Federal Practice, 80 Harv.L.Rev. 1711, 1716 (1967). 13 Spanos v. Skouras Theatres Corp., supra, 364 F.2d, at 168. 14 Both Fahringer and Cambria are members of the Bar of New York, who specialize in criminal defense and obscenity law. In 1975, the former received the Outstanding Practitioner of the Year award from the New York State Bar Association. The latter received his legal education in Ohio at the University of Toledo Law School where he graduated first in his class. While in law school, he was admitted by the State of Ohio as a legal intern and practiced as such in the Municipal Prosecutor's office in Toledo. 15 "No evidence of any disciplinary action against [Fahringer and Cambria] by any bar association has been presented to the Court, nor is there reason to believe that any such action is presently contemplated. Both are competent, experienced and qualified in the representation of persons charged with crimes." 434 F.Supp. 481, 483 (SD Ohio 1977). 16 Ohio charged that respondent Flynt's publication entitled "War, The Real Obscenity," is harmful to youth contrary to Ohio Rev.Code Ann. § 2907.31 (1975). Among his defenses are several based on the Federal Constitution. He claims that § 2907.31 is "void for vagueness and overbreadth, impos[es] an impermissible prior restraint on the publication and circulation of materials protected by the First and Fourteenth Amendments to the Constitution," and "bears no rational or reasonable relationship to a legitimate state interest." Complaint for Preliminary and Permanent Injunction and Declaratory Judgment, No. C-1-77-319 (SD Ohio, June 14, 1977), pp. 19-21. 17 "In a Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed." Board of Regents v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548. Although the boundaries of the "liberty" protected by the Fourteenth Amendment have never been conclusively surveyed, it is clear that they encompass "not merely [the] freedom from bodily restraint" and the rights conferred by specific provisions of the Constitution, Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, but also the " 'privileges long recognized at common law as essential to the orderly pursuit of happiness.' " Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711, quoting Meyer v. Nebraska, supra, 262 U.S., at 399, 43 S.Ct., at 626. See Smith v. Organization of Foster Families, 431 U.S. 816, 845, 97 S.Ct. 2094, 2110, 53 L.Ed.2d 14. Among those privileges is "the right to hold specific private employment and to follow a chosen profession," Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 1411, 3 L.Ed.2d 1377; including "the practice of law." Schware v. Board of Bar Examiners, 353 U.S., at 238, 77 S.Ct., at 756. Fahringer and Cambria in no way rely on the fact that the denial of their applications "might make [them] somewhat less attractive" to clients and might otherwise compromise their professional reputations. Cf. Bishop v. Wood, 426 U.S. 341, 348-350, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684. 18 The only record of the Ohio Supreme Court's actions in this case is a journal notation that it was "dismissed." The record indicates that petitioners argued to the Supreme Court in their written submissions that the court could not entertain an extraordinary writ in this matter but that respondents' remedy lay in a post-trial appeal—assuming Flynt was convicted. The newly assigned trial judge in Flynt's case, the only Ohio court of which we are aware that has interpreted the Ohio Supreme Court's actions in this matter, concluded that the dismissal was not on the merits of respondents' claim of a right to an explanation before being denied admission. It instead concluded that the claim "apparently is an issue that you will have to resolve in the normal appellate procedures if and when the opportunity presents itself." Tr. of May 10, 1977, p. 16. 19 434 F.Supp., at 483. See State v. Ross, 36 Ohio App.2d 185, 188, 304 N.E.2d 396, 399 (1973), cert. denied, 415 U.S. 904. 20 Rule I, § 8(C), of the Supreme Court of Ohio Rules for the Government of the Bar of Ohio allows "participation by a nonresident of Ohio in a cause being litigated in this state when such participation is with leave of the judge hearing such cause." 21 Canon 3 of Ohio's Code of Professional Responsibility recognizes the indispensability to many modern attorneys of the ability to pursue their clients' interests across state lines: "[T]he legal profession should discourage regulation that unreasonably imposes territorial limitations upon the right of a lawyer to handle the legal affairs of his client or upon the opportunity of a client to obtain the services of a lawyer of his choice in all matters including the presentation of a contested matter in a tribunal before which the lawyer is not permanently admitted to practice." 22 Rule 10(E) of the Rules of Local Practice of the Court of Common Pleas, Hamilton County, Ohio, requires "[a]ny attorney who accepts private employment in any criminal case" to file a specified form. Once that form is endorsed by a judge, as occurred here, the attorney becomes "attorney of record" who "shall not be permitted to withdraw except upon written motion and for good cause shown." See n. 3, supra. 23 State v. Ross, supra. 24 "It has, however, been generally recognized that an attorney not admitted to practice in Ohio, but in good standing in another state, may be specially admitted for the purpose of representing a person in a particular case, be it civil or criminal. Whether or not so to specially permit an attorney not admitted to practice in Ohio, but admitted to practice and in good standing in another state, to represent a party in a particular action, is a matter lying within the sound discretion of the trial court. Thus, we must determine whether there has been an abuse of discretion in this instance." State v. Ross, supra, at 188, 304 N.E.2d, at 399. Other appellate courts have held or stated in dicta that admission pro hac vice to trial courts within their jurisdiction may not be denied without cause. In re Evans, 524 F.2d 1004, 1007 (CA5 1975) (denial inappropriate except upon showing of unethical conduct); McKenzie v. Burris, 255 Ark. 330, 344, 500 S.W.2d 357, 366 (1973) (trial court may not impose "arbitrary numerical limitation on the number of [pro hac vice ] appearances by an attorney" with expertise in the relevant area). See also Munoz v. United States District Court, 446 F.2d 434 (CA9 1971); Atchison, T. & S.F.R. Co. v. Jackson, 235 F.2d 390, 393 (CA10 1956); Brown v. Wood, 257 Ark. 252, 258, 516 S.W.2d 98, 102 (1974). The requirement of cause has even greater support where, as here, see n. 3, supra, an out-of-state attorney in a criminal case has previously been made counsel of record by order of a trial court. Cooper v. Hutchinson, 184 F.2d 119, 123 (CA3 1950); State v. Kavanaugh, 52 N.J. 7, 18, 243 A.2d 225, 231 (1968); Smith v. Brock, 532 P.2d 843, 850 (Okl.1975). 25 36 Ohio App.2d, at 190-201, 304 N.E.2d, at 401-406. 26 This "holding as a matter of state law" that out-of-state lawyers are entitled to have a trial judge exercise his discretion that is to say, to have a permissible reason for his ruling—before he denies an application to appear, "necessarily establishes that [Fahringer and Cambria had a] property interest" protected by the Fourteenth Amendment. See Bishop v. Wood, 426 U.S., at 345 n. 8, 96 S.Ct., at 2078 n. 8. 27 "Property interests . . . are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Board of Regents v. Roth, 408 U.S., at 577, 92 S.Ct., at 2709. In this case, the state action that lies at the source of the relevant "understanding" or implied promise is multifaceted. In addition to the consistent past practice of Ohio trial judges, which is analogous to the course of administrative conduct found sufficient in Morrissey, that promise is supported by state and local rules and case law. 28 "[T]he right to procedural due process . . . is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in federal employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards. As our cases have consistently recognized, the adequacy of statutory procedures for deprivation of a statutorily created property interest must be analyzed in constitutional terms." Arnett, 416 U.S., at 167, 94 S.Ct., at 1650 (Powell, J., concurring in part) (footnote omitted). 29 See Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405, Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451. I continue to adhere to the view that "neither the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. The relevant state laws either create property rights, or they curtail the freedom of the citizen who must live in an ordered society. Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty, and surely not the exclusive source." Id., at 230, 96 S.Ct., at 2541 (Stevens, J., dissenting). 30 Although the Court cites three previous summary dispositions by this Court in favor of its decision, two have nothing whatsoever to do with pro hac vice admissions. Both are concerned with rules preventing out-of-state lawyers from setting up permanent practices in States where they were not licensed. Brown v. Supreme Court of Virginia, 414 U.S. 1034, 94 S.Ct. 534, 38 L.Ed.2d 327, summarily aff'g 359 F.Supp. 549 (ED Va.1973); Kovrak v. Ginsburg, 358 U.S. 52, 79 S.Ct. 95, 3 L.Ed.2d 46, dismissing for want of substantial federal question, appeal from 392 Pa. 143, 139 A.2d 889 (1958). The third case involved a challenge on substantive due process grounds to a rule of the Supreme Court of Illinois that placed decisions on pro hac vice applications in the trial court's discretion. Norfolk & Western R. Co. v. Beatty, 423 U.S. 1009, 96 S.Ct. 439, 46 L.Ed.2d 381, summarily aff'g 400 F.Supp. 234 (S.D.Ill.1975). So far as the opinion in the District Court in that case indicates, however, there was no claim that the rule had been applied arbitrarily or discriminatorily.

34

439 U.S. 461 99 S.Ct. 710 58 L.Ed.2d 736 Vincent X. LEEv.State of MISSOURI. Eugene MINOR v. State of MISSOURI. William ARRINGTON v. State of MISSOURI. Herbert BURNFIN v. State of MISSOURI. Clifford R. COMBS v. State of MISSOURI. Nos. 77-6066, 77-6068, 77-6553, 77-6701, and 77-7012. Jan. 15, 1979. PER CURIAM. 1 The motions for leave to proceed in forma pauperis are granted. In each of these cases, the trial court denied a timely motion to quash the petit jury panel. On appeal, the convictions were affirmed on the basis of State v. Duren, 556 S.W.2d 11 (Mo.1977). State v. Lee, 556 S.W.2d 25 (Mo.1977); State v. Minor, 556 S.W.2d 35 (Mo.1977); State v. Arrington, 559 S.W.2d 749 (Mo.1978); State v. Burnfin, 560 S.W.2d 283 (Mo.App.1977); State v. Combs, 564 S.W.2d 328 (Mo.App.1978). 2 We reversed the decision below in Duren because of inconsistency with the principles enunciated in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579. The State of Missouri has urged that our decision in Duren not be applied retroactively to petitioners or appellants other than Duren himself. However, because that decision does not announce any "new standards" of constitutional law not evident from the decision in Taylor v. Louisiana, the considerations that have led us in other cases to depart from full retroactive application of constitutional holdings, see, e. g., Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967), are inapplicable to juries sworn after the decision in Taylor v. Louisiana. Compare Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), holding Taylor v. Louisiana inapplicable to cases in which the jury was sworn prior to the date of that decision. 3 We note that in any case in which a jury was sworn subsequent to Taylor v. Louisiana and the fair-cross-section claim based on exclusion of women was rejected on direct review or in state collateral proceedings because of the defendant's failure to assert the claim in timely fashion, relief is unavailable under 28 U.S.C. § 2254 unless the petitioner can show cause for having failed to raise his claim properly in the state courts. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). 4 The petitions for certiorari in Nos. 77-6066, 77-6068, 77-6701, and 77-7012 are granted. The judgments below in those cases, together with that in No. 77-6553, are vacated, and the cases are remanded for reconsideration in light of Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579. 5 So ordered. 6 Mr. Justice REHNQUIST dissents.

01

439 U.S. 459 99 S.Ct. 709 58 L.Ed.2d 733 Emerson E. HARLINv.State of MISSOURI. No. 77-6062. Jan. 15, 1979. PER CURIAM. 1 On appeal of his criminal conviction to the Supreme Court of Missouri, petitioner contended that his constitutional right to a jury drawn from a fair cross section of the community had been denied by provisions of Missouri law allowing any woman who so elects to be excused from jury service. See Mo.Const., Art. 1, § 22(b); Mo.Rev.Stat. § 494.031(2) (Supp.1975). The record did not reflect that petitioner had raised this objection in timely fashion in the trial court, but because the trial court had considered and rejected the contention on its merits in connection with petitioner's motion for a new trial, the Missouri Supreme Court reviewed the issue under its "plain error" rule. Relying on its decision in State v. Duren, 556 S.W.2d 11 (1977), that court rejected petitioner's contention that the challenged provisions are invalid because they systematically exclude women from the jury-selection process. 556 S.W.2d 42, 44 (1977). The highest state court having reached and decided this issue, its judgment is subject to review in this Court. SeeJenkins v. Georgia, 418 U.S. 153, 157, 94 S.Ct. 2750, 2753, 41 L.Ed.2d 642 (1974). The petition for certiorari is granted. The motion for leave to proceed in forma pauperis is granted. The judgment below is vacated, and the case is remanded for reconsideration in light of Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579. 2 So ordered. 3 Mr. Justice REHNQUIST dissents. 4 Mr. Justice POWELL, concurring in the judgments. 5 As I noted in my concurrence in Hankerson v. North Carolina, 432 U.S. 233, 246, 97 S.Ct. 2339, 2347, 53 L.Ed.2d 306 (1977), the Court's attempt to fashion a satisfactory retroactivity doctrine in the years since Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), has not succeeded. I adhere to the view expressed in Hankerson that the wisest approach to this problem is that outlined by Mr. Justice Harlan in Mackey v. United States, 401 U.S. 667, 675-702, 91 S.Ct. 1160, 1171-1185, 28 L.Ed.2d 404 (1971). That approach "contemplates, in rough outline, that courts apply a new rule retroactively in cases still pending on direct review, whereas cases on collateral review ordinarily would be considered in light of the rule as it stood when the conviction became final." Hankerson, supra, at 248, 97 S.Ct., at 2347. As all of these cases are before us on direct review, the application to them of the principles announced in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), and Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579, is proper. Accordingly, I concur in the judgments of the Court.

12

439 U.S. 551 99 S.Ct. 790 58 L.Ed.2d 808 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner,v.John DANIEL. LOCAL 705, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, et al., Petitioners, v. John DANIEL. Nos. 77-753, 77-754. Argued Oct. 31, 1978. Decided Jan. 16, 1979. Syllabus A pension plan entered into under a collective-bargaining agreement between petitioner local labor union and employer trucking firms required all employees to participate in the plan but not to pay anything into it. All contributions to the plan were to be made by the employers at a specified amount per week for each man-week of covered employment. To be eligible for a pension, an employee was required to have 20 years of continuous service. Respondent employee, who had over 20 years' service, was denied a pension upon retirement because of a break in service. He then brought suit in Federal District Court, alleging, inter alia, that the union and petitioner trustee of the pension fund had misrepresented and omitted to state material facts with respect to the value of a covered employee's interest in the pension plan, and that such misstatements and omissions constituted a fraud in connection with the sale of a security in violation of § 10(b) of the Securities Exchange Act of 1934 and the Securities and Exchange Commission's Rule 10b-5, and also violated § 17(a) of the Securities Act of 1933. Denying petitioners' motion to dismiss, the District Court held that respondent's interest in the pension fund constituted a "security" within the meaning of § 2(1) of the Securities Act and § 3(a)(10) of the Securities Exchange Act because the plan created an "investment contract," and also that there had been a "sale" of this interest to respondent within the meaning of § 2(3) of the Securities Act and § 3(a)(14) of the Securities Exchange Act. The Court of Appeals affirmed. Held: The Securities Act and the Securities Exchange Act do not apply to a noncontributory, compulsory pension plan. Pp. 558-570. (a) To determine whether a particular financial relationship constitutes an investment contract, "[t]he test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others." SEC v. W. J. Howey Co., 328 U.S. 293, 301, 66 S.Ct. 1100, 1104, 90 L.Ed. 1244. Looking separately at each element of this test, it is apparent that an employee's participation in a noncontributory, compulsory pension plan such as the one in question here does not comport with the commonly held understanding of an investment contract. With respect to the investment-of-money element, in such a pension plan the purported investment is a relatively insignificant part of the total and indivisible compensation package of an employee, who, from the standpoint of the economic realities, is selling his labor to obtain a livelihood, not making an investment for the future. And with respect to the expectation-of-profits element, while the pension fund depends to some extent on earnings from its assets, the possibility of participating in asset earnings is too insubstantial to bring the entire transaction within the Securities Acts. Pp. 558-562. (b) There is no evidence that Congress at any time thought noncontributory plans were subject to federal regulation as securities. Nor until the instant litigation arose is there any evidence that the SEC had ever considered the Securities Act and Securities Exchange Act to be applicable to such plans. Accordingly, there is no justification for deference to the SEC's present interpretation. Pp. 563-569. (c) The Employee Retirement Income Security Act of 1974, which comprehensively governs the use and terms of employee pension plans, severely undercuts all argument for extending the Securities Act and Securities Exchange Act to noncontributory, compulsory pension plans, and whatever benefits employees might derive from the effect of these latter Acts are now provided in more definite form through ERISA. Pp. 569-570. 7 Cir., 561 F.2d 1223, reversed. Sherman Carmell, Chicago, Ill., for petitioner in No. 77-754. Sidney Dickstein, Washington, D. C., for petitioner in No. 77-753. Jacob H. Stillman, Washington, D. C., for the Securities and Exchange Commission, as amicus curiae, by special leave of Court. Lawrence Walner and Peter J. Barack, Chicago, Ill., for respondent in both cases. Mr. Justice POWELL delivered the opinion of the Court. 1 This case presents the question whether a noncontributory, compulsory pension plan constitutes a "security" within the meaning of the Securities Act of 1933 and the Securities Exchange Act of 1934 (Securities Acts). 2 * In 1954 multiemployer collective bargaining between Local 705 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America and Chicago trucking firms produced a pension plan for employees represented by the Local. The plan was compulsory and noncontributory. Employees had no choice as to participation in the plan, and did not have the option of demanding that the employer's contribution be paid directly to them as a substitute for pension eligibility. The employees paid nothing to the plan themselves.1 3 The collective-bargaining agreement initially set employer contributions to the Pension Trust Fund at $2 a week for each man-week of covered employment.2 The Board of Trustees of the Fund, a body composed of an equal number of employer and union representatives, was given sole authority to set the level of benefits but had no control over the amount of required employer contributions. Initially, eligible employees received $75 a month in benefits upon retirement. Subsequent collective-bargaining agreements called for greater employer contributions, which in turn led to higher benefit payments for retirees. At the time respondent brought suit, employers contributed $21.50 per employee man-week and pension payments ranged from $425 to $525 a month depending on age at retirement.3 In order to receive a pension an employee was required to have 20 years of continuous service, including time worked before the start of the plan. 4 The meaning of "continuous service" is at the center of this dispute. Respondent began working as a truckdriver in the Chicago area in 1950, and joined Local 705 the following year. When the plan first went into effect, respondent automatically received 5 years' credit toward the 20-year service requirement because of his earlier work experience. He retired in 1973 and applied to the plan's administrator for a pension. The administrator determined that respondent was ineligible because of a break in service between December 1960 and July 1961.4 Respondent appealed the decision to the trustees, who affirmed. Respondent then asked the trustees to waive the continuous-service rule as it applied to him. After the trustees refused to waive the rule, respondent brought suit in federal court against the International Union (Teamsters), Local 705 (Local), and Louis Peick, a trustee of the Fund. 5 Respondent's complaint alleged that the Teamsters, the Local, and Peick misrepresented and omitted to state material facts with respect to the value of a covered employee's interest in the pension plan. Count I of the complaint charged that these misstatements and omissions constituted a fraud in connection with the sale of a security in violation of § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. § 78j(b), and the Securities and Exchange Commission's Rule 10b-5, 17 CFR § 240.10b-5 (1978). Count II charged that the same conduct amounted to a violation of § 17(a) of the Securities Act of 1933, 48 Stat. 84, as amended, 15 U.S.C. § 77q. Other counts alleged violations of various labor law and common-law duties.5 Respondent sought to proceed on behalf of all prospective beneficiaries of Teamsters pension plans and against all Teamsters pension funds.6 6 The petitioners moved to dismiss the first two counts of the complaint on the ground that respondent had no cause of action under the Securities Acts. The District Court denied the motion. 410 F.Supp. 541 (ND Ill.1976). It held that respondent's interest in the Pension Fund constituted a security within the meaning of § 2(1) of the Securities Act, 15 U.S.C. § 77b(1), and § 3(a)(10) of the Securities Exchange Act, 15 U.S.C. § 78c(a)(10),7 because the plan created an "investment contract" as that term had been interpreted in SEC v. W. J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946). It also determined that there had been a "sale" of this interest to respondent within the meaning of § 2(3) of the Securities Act, as amended, 15 U.S.C. § 77b(3), and § 3(a)(14) of the Securities Exchange Act, 15 U.S.C. § 78c(a)(14).8 It believed respondent voluntarily gave value for his interest in the plan, because he had voted on collective-bargaining agreements that chose employer contributions to the Fund instead of other wages or benefits. 7 The order denying the motion to dismiss was certified for appeal pursuant to 28 U.S.C. § 1292(b), and the Court of Appeals for the Seventh Circuit affirmed. 561 F.2d 1223 (1977). Relying on its perception of the economic realities of pension plans and various actions of Congress and the SEC with respect to such plans, the court ruled that respondent's interest in the Pension Fund was a "security." According to the court, a "sale" took place either when respondent ratified a collective-bargaining agreement embodying the Fund or when he accepted or retained covered employment instead of seeking other work.9 The court did not believe the subsequent enactment of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, 29 U.S.C. § 1001 et seq., affected the application of the Securities Acts to pension plans, as the requirements and purposes of ERISA were perceived to be different from those of the Securities Acts.10 We granted certiorari, 434 U.S. 1061, 98 S.Ct. 1232, 55 L.Ed.2d 761 (1978), and now reverse. II 8 "The starting point in every case involving construction of a statute is the language itself." Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (POWELL, J., concurring); see Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 199, 96 S.Ct. 1375, 1382, 1383, 47 L.Ed.2d 668, and n. 19 (1976). In spite of the substantial use of employee pension plans at the time they were enacted, neither § 2(1) of the Securities Act nor § 3(a)(10) of the Securities Exchange Act, which defines the term "security" in considerable detail and with numerous examples, refers to pension plans of any type. Acknowledging this omission in the statutes, respondent contends that an employee's interest in a pension plan is an "investment contract," an instrument which is included in the statutory definitions of a security.11 9 To determine whether a particular financial relationship constitutes an investment contract, "[t]he test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others." Howey, 328 U.S., at 301, 66 S.Ct., at 1104. This test is to be applied in light of "the substance—the economic realities of the transaction rather than the names that may have been employed by the parties." United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 851-852, 95 S.Ct. 2051, 2060, 44 L.Ed.2d 621 (1975). Accord, Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 553, 19 L.Ed.2d 564 (1967); Howey, supra, 328 U.S., at 298, 66 S.Ct., at 1102. Cf. SEC v. Variable Annuity Life Ins. Co., 359 U.S. 65, 80, 79 S.Ct. 618, 626, 3 L.Ed.2d 640 (1959) (BRENNAN, J., concurring) ("[O]ne must apply a test in terms of the purposes of the Federal Acts . . ."). Looking separately at each element of the Howey test, it is apparent that an employee's participation in a noncontributory, compulsory pension plan such as the Teamsters' does not comport with the commonly held understanding of an investment contract. A. Investment of Money 10 An employee who participates in a noncontributory, compulsory pension plan by definition makes no payment into the pension fund. He only accepts employment, one of the conditions of which is eligibility for a possible benefit on retirement. Respondent contends, however, that he has "invested" in the Pension Fund by permitting part of his compensation from his employer to take the form of a deferred pension benefit. By allowing his employer to pay money into the Fund, and by contributing his labor to his employer in return for these payments, respondent asserts he has made the kind of investment which the Securities Acts were intended to regulate. 11 In order to determine whether respondent invested in the Fund by accepting and remaining in covered employment, it is necessary to look at the entire transaction through which he obtained a chance to receive pension benefits. In every decision of this Court recognizing the presence of a "security" under the Securities Acts, the person found to have been an investor chose to give up a specific consideration in return for a separable financial interest with the characteristics of a security. See Tcherepnin, supra (money paid for bank capital stock); SEC v. United Benefit Life Ins. Co., 387 U.S. 202, 87 S.Ct. 1557, 18 L.Ed.2d 673 (1967) (portion of premium paid for variable component of mixed variable- and fixed-annuity contract); Variable Annuity Life Ins. Co., supra (premium paid for variable-annuity contract); Howey, supra (money paid for purchase, maintenance, and harvesting of orange grove); SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344, 64 S.Ct. 120, 88 L.Ed. 88 (1943) (money paid for land and oil exploration). Even in those cases where the interest acquired had intermingled security and nonsecurity aspects, the interest obtained had "to a very substantial degree elements of investment contracts . . . ." Variable Annuity Life Ins. Co., supra, 359 U.S., at 91, 79 S.Ct., at 632 (BRENNAN, J., concurring). In every case the purchaser gave up some tangible and definable consideration in return for an interest that had substantially the characteristics of a security. 12 In a pension plan such as this one, by contrast, the purported investment is a relatively insignificant part of an employee's total and indivisible compensation package. No portion of an employee's compensation other than the potential pension benefits has any of the characteristics of a security, yet these noninvestment interests cannot be segregated from the possible pension benefits. Only in the most abstract sense may it be said that an employee "exchanges" some portion of his labor in return for these possible benefits.12 He surrenders his labor as a whole, and in return receives a compensation package that is substantially devoid of aspects resembling a security. His decision to accept and retain covered employment may have only an attenuated relationship, if any, to perceived investment possibilities of a future pension. Looking at the economic realities, it seems clear that an employee is selling his labor primarily to obtain a livelihood, not making an investment. 13 Respondent also argues that employer contributions on his behalf constituted his investment into the Fund. But it is inaccurate to describe these payments as having been "on behalf" of any employee. The trust agreement used employee man-weeks as a convenient way to measure an employer's overall obligation to the Fund, not as a means of measuring the employer's obligation to any particular employee. Indeed, there was no fixed relationship between contributions to the Fund and an employee's potential benefits. A pension plan with "defined benefits," such as the Local's, does not tie a qualifying employee's benefits to the time he has worked. See n. 3, supra. One who has engaged in covered employment for 20 years will receive the same benefits as a person who has worked for 40, even though the latter has worked twice as long and induced a substantially larger employer contribution.13 Again, it ignores the economic realities to equate employer contributions with an investment by the employee. 14 B. Expectation of Profits From a Common Enterprise 15 As we observed in Forman, the "touchstone" of the Howey test "is the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others." 421 U.S., at 852, 95 S.Ct., at 2060. The Court of Appeals believed that Daniel's expectation of profit derived from the Fund's successful management and investment of its assets. To the extent pension benefits exceeded employer contributions and depended on earnings from the assets, it was thought they contained a profit element. The Fund's trustees provided the managerial efforts which produced this profit element. 16 As in other parts of its analysis, the court below found an expectation of profit in the pension plan only by focusing on one of its less important aspects to the exclusion of its more significant elements. It is true that the Fund, like other holders of large assets, depends to some extent on earnings from its assets. In the case of a pension fund, however, a far larger portion of its income comes from employer contributions, a source in no way dependent on the efforts of the Fund's managers. The Local 705 Fund, for example, earned a total of $31 million through investment of its assets between February 1955 and January 1977. During this same period employer contributions totaled $153 million.14 Not only does the greater share of a pension plan's income ordinarily come from new contributions, but unlike most entrepreneurs who manage other people's money, a plan usually can count on increased employer contributions, over which the plan itself has no control, to cover shortfalls in earnings.15 17 The importance of asset earnings in relation to the other benefits received from employment is diminished further by the fact that where a plan has substantial preconditions to vesting, the principal barrier to an individual employee's realization of pension benefits is not the financial health of the fund. Rather, it is his own ability to meet the fund's eligibility requirements. Thus, even if it were proper to describe the benefits as a "profit" returned on some hypothetical investment by the employee, this profit would depend primarily on the employee's efforts to meet the vesting requirements, rather than the fund's investment success.16 When viewed in light of the total compensation package an employee must receive in order to be eligible for pension benefits, it becomes clear that the possibility of participating in a plan's asset earnings "is far too speculative and insubstantial to bring the entire transaction within the Securities Acts," Forman, 421 U.S., at 856, 95 S.Ct., at 2062. III 18 The court below believed that its construction of the term "security" was compelled not only by the perceived resemblance of a pension plan to an investment contract but also by various actions of Congress and the SEC with regard to the Securities Acts. In reaching this conclusion, the court gave great weight to the SEC's explanation of these events, an explanation which for the most part the SEC repeats here. Our own review of the record leads us to believe that this reliance on the SEC's interpretation of these legislative and administrative actions was not justified. A. Actions of Congress 19 The SEC in its amicus curiae brief refers to several actions of Congress said to evidence an understanding that pension plans are securities. A close look at each instance, however, reveals only that Congress might have believed certain kinds of pension plans, radically different from the one at issue here, came within the coverage of the Securities Acts. There is no evidence that Congress at any time thought noncontributory plans similar to the one before us were subject to federal regulation as securities. 20 The first action cited was the rejection by Congress in 1934 of an amendment to the Securities Act that would have exempted employee stock investment and stock option plans from the Act's registration requirements.17 The amendment passed the Senate but was eliminated in conference. The legislative history of the defeated proposal indicates it was intended to cover plans under which employees contributed their own funds to a segregated investment account on which a return was realized. See H.R.Conf.Rep.No.1838, 73d Cong., 2d Sess., 41 (1934); Hearings before the House Committee on Interstate and Foreign Commerce on Proposed Amendments to the Securities Act of 1933 and to the Securities Exchange Act of 1934, 77th Cong., 1st Sess., pt. 1, pp. 895-896 (1941). In rejecting the amendment, Congress revealed a concern that certain interests having the characteristics of a security not be excluded from Securities Act protection simply because investors realized their return in the form of retirement benefits. At no time however, did Congress indicate that pension benefits in and of themselves gave a transaction the characteristics of a security. 21 The SEC also relies on a 1970 amendment of the Securities Act which extended § 3's exemption from registration to include "any interest or participation in a single or collective trust fund maintained by a bank . . . which interest or participation is issued in connection with . . . a stock bonus, pension, or profit-sharing plan which meets the requirements for qualification under section 401 of Title 26, . . ." § 3(a)(2) of the Securities Act, as amended, 84 Stat. 1434, 1498, 15 U.S.C. § 77c(a)(2). It argues that in creating a registration exemption, the amendment manifested Congress' understanding that the interests covered by the amendment otherwise were subject to the Securities Acts.18 It interprets "interest or participation in a single . . . trust fund . . . issued in connection with . . . a stock bonus, pension, or profit-sharing plan" as referring to a prospective beneficiary's interest in a pension fund. But this construction of the 1970 amendment ignores that measure's central purpose, which was to relieve banks and insurance companies of certain registration obligations. The amendment recognized only that a pension plan had "an interest or participation" in the fund in which its assets were held, not that prospective beneficiaries of a plan had any interest in either the plan's bank-maintained assets or the plan itself.19 B. SEC Interpretation 22 The court below believed, and it now is argued to us, that almost from its inception the SEC has regarded pension plans as falling within the scope of the Securities Acts. We are asked to defer to what is seen as a longstanding interpretation of these statutes by the agency responsible for their administration. But there are limits, grounded in the language, purpose, and history of the particular statute, on how far an agency properly may go in its interpretative role. Although these limits are not always easy to discern, it is clear here that the SEC's position is neither longstanding nor even arguably within the outer limits of its authority to interpret these Acts.20 23 As we have demonstrated above, the type of pension plan at issue in this case bears no resemblance to the kind of financial interests the Securities Acts were designed to regulate. Further, the SEC's present position is flatly contradicted by its past actions. Until the instant litigation arose, the public record reveals no evidence that the SEC had ever considered the Securities Acts to be applicable to noncontributory pension plans. In 1941, the SEC first articulated the position that voluntary, contributory plans had investment characteristics that rendered them "securities" under the Acts. At the same time, however, the SEC recognized that noncontributory plans were not covered by the Securities Acts because such plans did not involve a "sale" within the meaning of the statutes. Opinions of Assistant General Counsel, [1941-1944 Transfer Binder] CCH Fed.Sec.L.Serv. ¶ 75,195 (1941); Hearings before the House Committee on Interstate and Foreign Commerce on Proposed Amendments to the Securities Act of 1933 and to the Securities Exchange Act of 1934, 77th Cong., 1st Sess., 895, 896-897 (1941) (testimony of Commissioner Purcell).21 24 In an attempt to reconcile these interpretations of the Securities Acts with its present stand, the SEC now augments its past position with two additional propositions. First, it is argued, noncontributory plans are "securities" even where a "sale" is not involved. Second, the previous concession that noncontributory plans do not involve a "sale" was meant to apply only to the registration and reporting requirements of the Securities Acts; for purposes of the antifraud provisions, a "sale" is involved. As for the first proposition, we observe that none of the SEC opinions, reports, or testimony cited to us address the question. As for the second, the record is unambiguously to the contrary.22 Both in its 1941 statements and repeatedly since then, the SEC has declared that its "no sale" position applied to the Securities Acts as a whole. See opinions of Assistant General Counsel, [1941-1944 Transfer Binder] CCH Fed.Sec.L.Serv. ¶ 75,195, p. 75,387 (1941); Hearings before the House Committee on Interstate and Foreign Commerce, supra, at 888, 896-897; Institutional Investor Study Report of the Securities and Exchange Commission, H.R.Doc.No.92-64, pt. 3, p. 996 (1971) ("[T]he Securities Act does not apply . . ."); Hearings before the Subcommittee on Welfare and Pension Funds of the Senate Committee on Labor and Public Welfare on Welfare and Pension Plans Investigation, 84th Cong., 1st Sess., pt. 3, 943-946 (1955). Congress acted on this understanding when it proceeded to develop the legislation that became ERISA. See, e. g., Interim Report of Activities of the Private Welfare and Pension Plan Study, 1971, S.Rep.No.92-634, p. 96 (1972) ("Pension and profit-sharing plans are exempt from coverage under the Securities Act of 1933 . . . unless the plan is a voluntary contributory pension plan and invests in the securities of the employer company an amount greater than that paid into the plan by the employer") (emphasis added). As far as we are aware, at no time before this case arose did the SEC intimate that the antifraud provisions of the Securities Acts nevertheless applied to noncontributory pension plans. IV 25 If any further evidence were needed to demonstrate that pension plans of the type involved are not subject to the Securities Acts, the enactment of ERISA in 1974, 88 Stat. 829, would put the matter to rest. Unlike the Securities Acts, ERISA deals expressly and in detail with pension plans. ERISA requires pension plans to disclose specified information to employees in a specified manner, see 29 U.S.C. §§ 1021-1030, in contrast to the indefinite and uncertain disclosure obligations imposed by the antifraud provisions of the Securities Acts, see Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 474-477, 97 S.Ct. 1292, 1301-1303, 51 L.Ed.2d 480 (1977); TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976). Further, ERISA regulates the substantive terms of pension plans, setting standards for plan funding and limits on the eligibility requirements an employee must meet. For example, with respect to the underlying issue in this case—whether respondent served long enough to receive a pension—§ 203(a) of ERISA, 29 U.S.C. § 1053(a), now sets the minimum level of benefits an employee must receive after accruing specified years of service, and § 203(b), 29 U.S.C. § 1053(b), governs continuous-service requirements. Thus, if respondent had retired after § 1053 took effect, the Fund would have been required to pay him at least a partial pension. The Securities Acts, on the other hand, do not purport to set the substantive terms of financial transactions. 26 The existence of this comprehensive legislation governing the use and terms of employee pension plans severely undercuts all arguments for extending the Securities Acts to noncontributory, compulsory pension plans. Congress believed that it was filling a regulatory void when it enacted ERISA, a belief which the SEC actively encouraged. Not only is the extension of the Securities Acts by the court below unsupported by the language and history of those Acts, but in light of ERISA it serves no general purpose. See Califano v. Sanders, 430 U.S. 99, 104-107, 97 S.Ct. 980, 983-985, 51 L.Ed.2d 192 (1977). Cf. Boys Markets, Inc. v. Retail Clerk's, 398 U.S. 235, 250, 90 S.Ct. 1583, 1592, 26 L.Ed.2d 199 (1970). Whatever benefits employees might derive from the effect of the Securities Acts are now provided in more definite form through ERISA. V 27 We hold that the Securities Acts do not apply to a noncontributory, compulsory pension plan. Because the first two counts of respondent's complaint do not provide grounds for relief in federal court, the District Court should have granted the motion to dismiss them. The judgment below is therefore 28 Reversed. 29 Mr. Justice STEVENS took no part in the consideration or decision of these cases. 30 Mr. Chief Justice BURGER, concurring. 31 I join in the opinion of the Court except as to the discussion of the 1970 amendment to § 3(a)(2) of the Securities Act. There is no need to deal, in this case, with the scope of the exemption, since it is not an issue presented for decision. 32 The Commission argues that the new exemption from the registration requirement of the Act applies to participation in a pension plan, and infers that Congress must have understood that such participation is a security which otherwise would be subject to the Act. It is not necessary to evaluate the Commission's interpretation of the exemption, however, because even if it is correct, it does not support the conclusion the Commission draws. 33 First, the inference concerning Congress' understanding of the Act in 1970 is tenuous. The language of the amendment covers a variety of financial interests, some of which clearly are "securities" as defined in the Act. Congress most likely acted with a view to those interests, without considering other financial interests like those involved here, for which registration never had been required. 34 Second, even if a draftsman concerned with exempting a variety of interests from the registration requirement may have believed, in 1970, that certain pension interests were within the statutory definition of "security," that would have little, if any, bearing on this case. At issue here is the construction of definitions enacted in 1933 and 1934. 35 The briefs suggest that the construction of the 1970 amendment may be problematic. The scope of the exemption may be of real importance to someone in some future case—but it is not so in connection with this action. Accordingly, I reserve any expression of views on the issue at this time. 1 For examples of other noncontributory, compulsory pension plans, see Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 236-237, 98 S.Ct. 2716, 2718-2719, 57 L.Ed.2d 727 (1978); Malone v. White Motor Corp., 435 U.S. 497, 500-501, 98 S.Ct. 1185, 1188, 55 L.Ed.2d 443 (1978); Alabama Power Co. v. Davis, 431 U.S. 581, 590, 97 S.Ct. 2002, 2008, 52 L.Ed.2d 595 (1977). 2 Contributions were tied to the number of employees rather than the amount of work performed. For example, payments had to be made even for weeks where an employee was on leave of absence, disabled, or working for only a fraction of the week. Conversely, employers did not have to increase their contribution for weeks in which an employee worked overtime or on a holiday. Trust Agreement, Art. 3, § 1, App. 62a. 3 Because the Fund made the same payments to each employee who qualified for a pension and retired at the same age, rather than establishing an individual account for each employee tied to the amount of employer contributions attributable to his period of service, the plan provided a "defined benefit." See 29 U.S.C. § 1002(35); Alabama Power Co. v. Davis, supra, at 593 n. 18, 97 S.Ct., at 2009. 4 Respondent was laid off from December 1960 until April 1961. In addition, no contributions were paid on his behalf between April and July 1961, because of embezzlement by his employer's bookkeeper. During this 7-month period respondent could have preserved his eligibility by making the contributions himself, but he failed to do so. 5 Count III charged the Teamsters and the Local with violating their duty of fair representation under § 9(a) of the National Labor Relations Act, 29 U.S.C. § 159(a), and Count V (later amended as Count VI) charged the Teamsters, the Local, Peick, and all other Teamsters Pension Fund trustees with violating their obligations under § 302(c)(5) of the Labor Management Relations Act, 29 U.S.C. § 186(c)(5). Count IV accused all defendants of common-law fraud and deceit. 6 As of the time of appeal to the Seventh Circuit the District Court had not yet ruled on any class-certification issues. 7 Section 2(1) of the Securities Act, as amended, 15 U.S.C. § 77b(1), defines a "security" as "any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a 'security,' or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing." The definition of a "security" in § 3(a)(10) of the Securities Exchange Act is virtually identical and, for the purposes of this case, the coverage of the two Acts may be regarded as the same. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 847 n. 12, 95 S.Ct. 2051, 2058, 44 L.Ed.2d 621 (1975); Tcherepnin v. Knight, 389 U.S. 332, 342, 88 S.Ct. 548, 556, 19 L.Ed.2d 564 (1967). 8 Section 2(3) of the Securities Act provides, in pertinent part, that "[t]he term 'sale' or 'sell' shall include every contract of sale or disposition of a security or interest in a security, for value." Section 3(a)(14) of the Securities Exchange Act states that "[t]he terms 'sale' and 'sell' each include any contract to sell or otherwise dispose of." Although the latter definition does not refer expressly to a disposition for value, the court below did not decide whether the Securities Exchange Act nevertheless impliedly incorporated the Securities Act definition, cf. n. 7, supra, as in its view respondent did give value for his interest in the pension plan. In light of our disposition of the question whether respondent's interest was a "security," we need not decide whether the meaning of "sale" under the Securities Exchange Act is any different from its meaning under the Securities Act. 9 The Court of Appeals and the District Court also held that § 17(a) of the Securities Act provides private parties with an implied cause of action for damages. In light of our disposition of this case, we express no views on this issue. 10 Respondent did not have any cause of action under ERISA itself, as that Act took effect after he had retired. 11 Respondent also argues that his interest constitutes a "certificate of interest or participation in any profit-sharing agreement." The court below did not consider this claim, as respondent had not seriously pressed the argument and the disposition of the "investment contract" issue made it unnecessary to decide the question. 561 F.2d 1223, 1230 n. 15 (CA7 1977). Similarly, respondent here does not seriously contend that a "certificate of interest . . . in any profit-sharing agreement" has any broader meaning under the Securities Acts than an "investment contract." In Forman, supra, we observed that the Howey test, which has been used to determine the presence of an investment contract, "embodies the essential attributes that run through all of the Court's decisions defining a security." 421 U.S., at 852, 95 S.Ct., at 2060. 12 This is not to say that a person's "investment," in order to meet the definition of an investment contract, must take the form of cash only, rather than of goods and services. See Forman, supra, 421 U.S., at 852 n. 16, 95 S.Ct., at 2060. 13 Under the terms of the Local's pension plan, for example, respondent received credit for the five years he worked before the Fund was created, even though no employer contributions had been made during that period. 14 In addition, the Fund received $7,500,000 from small pension funds with which it merged over the years. 15 See Note, The Application of the Antifraud Provisions of the Securities Laws to Compulsory, Noncontributory Pension Plans After Daniel v. International Brotherhood of Teamsters, 64 Va.L.Rev. 305, 315 (1978). 16 See Note, Interest in Pension Plans as Securities: Daniel v. International Brotherhood of Teamsters, 78 Colum.L.Rev. 184, 201 (1978). 17 The amendment would have added the following language to § 4(1) of the Securities Act: "As used in this paragraph, the term 'public offering' shall not be deemed to include an offering made solely to employees by an issuer or by its affiliates in connection with a bona fide plan for the payment of extra compensation or stock investment plan for the exclusive benefit of such employees." 78 Cong.Rec. 8708 (1934). 18 Section 17(c) of the Securities Act, 15 U.S.C. § 77q(c), and § 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b) (when read with §§ 3(a)(10) and (12) of that Act), indicate that the antifraud provisions of the respective Acts continue to apply to interest that come within the exemptions created by § 3(a)(2) of the Securities Act and § 3(a)(12) of the Securities Exchange Act. 19 See S.Rep.No.91-184, p. 27 (1969), U.S.Code Cong. & Admin.News 1970, p. 4897; Hearings before the Senate Committee on Banking and Currency on Mutual Fund Legislation of 1967, 90th Cong., 1st Sess., pt. 3, pp. 1341-1342 (1967); Mundheim & Henderson, Applicability of the Federal Securities Laws to Pension and Profit-Sharing Plans, 29 L. & Contemp.Probs. 795, 819-837 (1964); Saxon & Miller, Common Trust Funds, 53 Geo.L.J. 994 (1965). The SEC argues that the addition by the House of the language "single or" before "common trust fund" indicated an intent to cover the underlying plans that invested in bank-maintained funds. The legislative history, however, indicates that the change was meant only to eliminate the negative inference suggested by the unrevised language that banks would have to register the segregated investment funds they administered for particular plans. Because the provision as a whole dealt only with the relationship between a plan and its bank, the revision did not affect the registration status of the underlying pension plan. See 116 Cong.Rec. 33287 (1970). This was consistent with the SEC's interpretation of the provision. Hearings, supra, at 1326. The subsequent addition of another provision excepting from the exemption funds "under which an amount in excess of the employer's contribution is allocated to the purchase of securities . . . issued by the employer or by any company directly or indirectly controlling, controlled by or under common control with the employer" appears to have been simply an additional safeguard to confirm the SEC's authority to require such plans, and only such plans, to register. See H.R.Conf.Rep.No.91-1631, p. 31 (1970), U.S.Code Cong. & Admin.News 1970, p. 4897. 20 It is commonplace in our jurisprudence that an administrative agency's consistent, longstanding interpretation of the statute under which it operates is entitled to considerable weight. United States v. National Assn. of Securities Dealers, 422 U.S. 694, 719, 95 S.Ct. 2427, 2442, 45 L.Ed.2d 486 (1975); Saxbe v. Bustos, 419 U.S. 65, 74, 95 S.Ct. 272, 278, 42 L.Ed.2d 231 (1974); Investment Company Institute v. Camp, 401 U.S. 617, 626-627, 91 S.Ct. 1091, 1097, 28 L.Ed.2d 367 (1971); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). This deference is a product both of an awareness of the practical expertise which an agency normally develops, and of a willingness to accord some measure of flexibility to such an agency as it encounters new and unforeseen problems over time. But this deference is constrained by our obligation to honor the clear meaning of a statute, as revealed by its language, purpose, and history. On a number of occasions in recent years this Court has found it necessary to reject the SEC's interpretation of various provisions of the Securities Acts. See SEC v. Sloan, 436 U.S. 103, 117-119, 98 S.Ct. 1702, 1711-1712, 56 L.Ed.2d 148 (1978); Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 41 n. 27, 97 S.Ct. 926, 949, 51 L.Ed.2d 124 (1977); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 212-214, 96 S.Ct. 1375, 1390-1391, 47 L.Ed.2d 668 (1976); Forman, 421 U.S., at 858 n. 25, 95 S.Ct., at 2063; Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 759 n. 4, 95 S.Ct. 1917, 1936, 44 L.Ed.2d 539 (1975) (POWELL, J., concurring); Reliance Electric Co. v. Emerson Electric Co., 404 U.S. 418, 425-427, 92 S.Ct. 596, 600-602, 30 L.Ed.2d 575 (1972). 21 Subsequent to 1941, the SEC made no further efforts to regulate even contributory, voluntary pension plans except where the employees' contributions were invested in the employer's securities. Cf. n. 19, supra. It also continued to disavow any authority to regulate noncontributory, compulsory plans. See letter from Assistant Director, Division of Corporate Finance, May 12, 1953, [1978] CCH Fed.Sec.L.Rep. ¶ 2105.51; letter from Chief Counsel, Division of Corporate Finance, Aug. 1, 1962, [1978] CCH Fed.Sec.L.Rep. ¶ 2105.52; Hearings before the Senate Committee on Banking and Currency, supra, n. 19, at 1326; 1 L. Loss, Securities Regulation 510-511 (2d ed. 1961); 4 id., at 2553-2554 (2d ed. 1969); Hyde, Employee Stock Plans and the Securities Act of 1933, 16 W.Res.L.Rev. 75, 86 (1964); Mundheim & Henderson, supra, n. 19, at 809-811; Note, Pension Plans as Securities, 96 U.Pa.L.Rev. 549, 549-551 (1948). 22 On occasion the SEC has contended that because § 2 of the Securities Act and § 3 of the Securities Exchange Act apply the qualifying phrase "unless the context otherwise requires" to the Acts' general definitions, it is permissible to regard a particular transaction as involving a sale or not depending on the form of regulation involved. See 1 L. Loss, Securities Regulation 524-528 (2d ed. 1961); 4 id., at 2562-2565 (2d ed. 1969). The Court noted the contention in SEC v. National Securities, Inc., 393 U.S. 453, 465-466, 89 S.Ct. 564, 571-572, 21 L.Ed.2d 668 (1969). On previous occasions the SEC appears to have taken a different position: In 1943 it submitted an amicus brief in the Ninth Circuit arguing that a transaction must be a sale for all purposes of the Securities Act or for none, and it did not begin to rely on its "regulatory context" theory until 1951. See Brief for the SEC in National Supply Co. v. Leland Stanford Junior University, 134 F.2d 689 (CA9 1943); 1 L. Loss, supra, at 524 n. 211; Cohen, Rule 133 of the Securities and Exchange Commission, 14 Record of N.Y.C.B.A. 162, 164-165 (1959). We also note that, with respect to statutory mergers, the area in which the SEC originally developed its theory as to the bifurcated definition of a sale, the SEC since has abandoned its position and finds the presence of a "sale" for all purposes in the case of such mergers. See 17 CFR § 230.145 (1978). In view of our disposition of this case, we express no opinion as to the correct resolution of the divergent views on this issue.

78

439 U.S. 463 99 S.Ct. 740 58 L.Ed.2d 740 State of WASHINGTON et al., Appellants,v.CONFEDERATED BANDS AND TRIBES OF the YAKIMA INDIAN NATION. No. 77-388. Argued Oct. 2, 1978. Decided Jan. 16, 1979. Rehearing Denied Feb. 26, 1979. See 440 U.S. 940, 99 S.Ct. 1290. Syllabus Section 6 of Pub.L. 280 authorizes the people of States whose constitutions or statutes contain organic law disclaimers of jurisdiction over Indian country to amend "where necessary" their constitutions or statutes to remove any legal impediment to assumption of such jurisdiction under the Act, notwithstanding the provision of any Enabling Act for the admission of the State, but provided that the Act shall not become effective with respect to such assumption of jurisdiction until the people of the State have appropriately amended their state constitution or statutes as the case may be. In § 7 of Pub.L. 280, Congress gave the consent of the United States "to any other State . . . to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof." The State of Washington's Constitution contains a disclaimer of authority over Indian country, and hence the State is one of those covered by § 6. In 1963, after the Washington Supreme Court in another case had held that the barrier posed by the disclaimer could be lifted by the state legislature, the legislature enacted a statute (Chapter 36) obligating the State to assume civil and criminal jurisdiction over Indians and Indian territory within the State, subject only to the condition that in all but eight subject-matter areas jurisdiction would not extend to Indians on trust or restricted lands unless the affected tribe so requested. Appellee Yakima Nation, which did not make such a request, brought this action in Federal District Court challenging the statutory and constitutional validity of the State's partial assertion of jurisdiction on its Reservation. The Tribe contended that the State had not complied with the procedural requirements of Pub.L. 280, especially the requirement that the State first amend its constitution; that, in any event, Pub.L. 280 did not authorize the State to assert only partial jurisdiction within an Indian reservation; and that Chapter 36, even if authorized by Congress, violated the equal protection and due process guarantees of the Fourteenth Amendment. The District Court rejected both the statutory and constitutional claims and entered judgment for the State. The Court of Appeals, while rejecting the contention that Washington's assumption of only partial jurisdiction was not authorized by Congress, reversed, holding that the "checkerboard" jurisdictional system produced by Chapter 36 had no rational foundation and therefore violated the Equal Protection Clause. Held : 1. Section 6 of Pub.L. 280 does not require disclaimer States to amend their constitutions to make an effective acceptance of jurisdiction over an Indian reservation, and any Enabling Act requirement of this nature was effectively repealed by § 6. Here, the Washington Supreme Court, having determined that for purposes of the repeal of the state constitutional disclaimer legislative action is sufficient and the state legislature having enacted legislation obligating the State to assume jurisdiction under Pub.L. 280, it follows that the State has satisfied the procedural requirements of § 6. Pp. 478-493. 2. Once the requirements of § 6 have been satisfied, the terms of § 7 govern the scope of jurisdiction conferred upon disclaimer States. Statutory authorization for the partial subject-matter and geographic jurisdiction asserted by Washington is found in the words of § 7 permitting option States to assume jurisdiction "in such manner" as the people of the State shall "by affirmative legislative action, obligate and bind the State to assumption thereof." The phrase "in such manner" means at least that an option State can condition the assumption of full jurisdiction on an affected tribe's consent. Here, Washington has offered to assume full jurisdiction if a tribe so requests. The partial jurisdiction asserted on the reservations of nonconsenting tribes reflects a responsible attempt to accommodate both state and tribal interests and is consistent with the concerns that underlay the adoption of Pub.L. 280. Accordingly, it does not violate the terms of § 7. Pp. 493-499. 3. The "checkerboard" pattern of jurisdiction ordained by Chapter 36 is not on its face invalid under the Equal Protection Clause. Pp. 499-502. (a) The classifications based on tribal status and land tenure implicit in Chapter 36 are not "suspect" so as to require that they be justified by a compelling state interest nor does Chapter 36 abridge any fundamental right of self-government. Pp. 500-501. (b) Chapter 36 is valid as bearing a rational relationship to the State's interest in providing protection to non-Indian citizens living within a reservation while at the same time allowing scope for tribal self-government on trust or restricted lands, the land-tenure classification being neither an irrational nor arbitrary means of identifying those areas within a reservation in which tribal members have the greatest interest in being free of state police power. Pp. 501-502. 552 F.2d 1332, reversed. Slade Gorton, Atty. Gen., Olympia, Wash., for appellants. Louis F. Claiborne, Asst. Sol. Gen., Washington, D. C., for United States, as amicus curiae, by special leave of Court. James B. Hovis, Yakima, Wash., for appellees. Mr. Justice STEWART delivered the opinion of the Court. 1 In this case we are called upon to resolve a dispute between the State of Washington and the Yakima Indian Nation over the validity of the State's exercise of jurisdiction on the Yakima Reservation. In 1963 the Washington Legislature obligated the State to assume civil and criminal jurisdiction over Indians and Indian territory within the State, subject only to the condition that in all but eight subject-matter areas jurisdiction would not extend to Indians on trust or restricted lands without the request of the Indian tribe affected. Ch. 36, 1963 Wash.Laws.1 The Yakima Nation did not make such a request. State authority over Indians within the Yakima Reservation was thus made by Chapter 36 to depend on the title status of the property on which the offense or transaction occurred and upon the nature of the subject matter. 2 The Yakima Nation brought this action in a Federal District Court challenging the statutory and constitutional validity of the State's partial assertion of jurisdiction on its Reservation. The Tribe contended that the federal statute upon which the State based its authority to assume jurisdiction over the Reservation, Pub.L. 280,2 imposed certain procedural requirements, with which the State had not complied—most notably, a requirement that Washington first amend its own constitution—and that in any event Pub.L. 280 did not authorize the State to assert only partial jurisdiction within an Indian reservation. Finally, the Tribe contended that Chapter 36, even if authorized by Congress, violated the equal protection and due process guarantees of the Fourteenth Amendment. 3 The District Court rejected both the statutory and constitutional claims and entered judgment for the State.3 On appeal, the contention that Washington's assumption of only partial jurisdiction was not authorized by Congress was rejected by the Court of Appeals for the Ninth Circuit, sitting en banc. The en banc court then referred the case to the original panel for consideration of the remaining issues. Confederated Bands and Tribes of the Yakima Indian Nation v. Washington, 550 F.2d 443 (Yakima I ).4 The three-judge panel, confining itself to consideration of the constitutional validity of Chapter 36, concluded that the "checkerboard" jurisdictional system it produced was without any rational foundation and therefore violative of the Equal Protection Clause of the Fourteenth Amendment. Finding no basis upon which to sever the offending portion of the legislation, the appellate court declared Chapter 36 unconstitutional in its entirety, and reversed the judgment of the District Court. Confederated Bands and Tribes of the Yakima Indian Nation v. Washington, 552 F.2d 1332 (Yakima II ). 4 The State then brought an appeal to this Court. In noting probable jurisdiction of the appeal, we requested the parties to address the issue whether the partial geographic and subject-matter jurisdiction ordained by Chapter 36 is authorized by federal law, as well as the Equal Protection Clause issue. 435 U.S. 903,5 98 S.Ct. 1447, 55 L.Ed.2d 493. 5 * The Confederated Bands and Tribes of the Yakima Indian Nation comprise 14 originally distinct Indian tribes that joined together in the middle of the 19th century for purposes of their relationships with the United States. A treaty was signed with the United States in 1855, under which it was agreed that the various tribes would be considered "one nation" and that specified lands located in the Territory of Washington would be set aside for their exclusive use. The treaty was ratified by Congress in 1859. 12 Stat. 951. Since that time, the Yakima Nation has without interruption maintained its tribal identity. 6 The Yakima Reservation is located in the southeastern part of the State of Washington and now consists of approximately 1,387,505 acres of land, of which some 80% is held in trust by the United States for the Yakima Nation or individual members of the Tribe. The remaining parcels of land are held in fee by Indian and non-Indian owners. Much of the trust acreage on the Reservation is forest. The Tribe receives the bulk of its income from timber, and over half of the Reservation is closed to permanent settlement in order to protect the forest area. The remaining lands are primarily agricultural. There are three incorporated towns on the Reservation, the largest being Toppenish, with a population of under 6,000. 7 The land held in fee is scattered throughout the Reservation, but most of it is concentrated in the northeastern portion close to the Yakima River and within the three towns of Toppenish, Wapato, and Harrah. Of the 25,000 permanent residents of the Reservation, 3,074 are members of the Yakima Nation, and tribal members live in all of the inhabited areas of the Reservation.6 In the three towns—where over half of the non-Indian population resides—members of the Tribe are substantially outnumbered by non-Indian residents occupying fee land. 8 Before the enactment of the state law here in issue, the Yakima Nation was subject to the general jurisdictional principles that apply in Indian country in the absence of federal legislation to the contrary. Under those principles, which received their first and fullest expression in Worcester v. Georgia, 6 Pet. (31 U.S.) 515, 517, 8 L.Ed. 483, state law reaches within the exterior boundaries of an Indian reservation only if it would not infringe "on the right of reservation Indians to make their own laws and be ruled by them." Williams v. Lee, 358 U.S. 217, 219-220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251.7 As a practical matter, this has meant that criminal offenses by or against Indians have been subject only to federal or tribal laws, Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96, except where Congress in the exercise of its plenary and exclusive power over Indian affairs has "expressly provided that State laws shall apply." McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 170-171, 93 S.Ct. 1257, 1261, 36 L.Ed.2d 129. 9 Public Law 280, upon which the State of Washington relied for its authority to assert jurisdiction over the Yakima Reservation under Chapter 36, was enacted by Congress in 1953 in part to deal with the "problem of lawlessness on certain Indian reservations, and the absence of adequate tribal institutions for law enforcement." Bryan v. Itasca County, 426 U.S. 373, 379, 96 S.Ct. 2102, 2106, 48 L.Ed.2d 710; H.R.Rep. No. 848, 83d Cong., 1st Sess., 5-6 (1953). The basic terms of Pub.L. 280, which was the first federal jurisdictional statute of general applicability to Indian reservation lands,8 are well known.9 To five States it effected an immediate cession of criminal and civil jurisdiction over Indian country, with an express exception for the reservations of three tribes. Pub.L. 280, §§ 2 and 4.10 To the remaining States it gave an option to assume jurisdiction over criminal offenses and civil causes of action in Indian country without consulting with or securing the consent of the tribes that would be affected. States whose constitutions or statutes contained organic law disclaimers of jurisdiction over Indian country were dealt with in § 6.11 The people of those States were given permission to amend "where necessary" their state constitutions or existing statutes to remove any legal impediment to the assumption of jurisdiction under the Act. All others were covered in § 7.12 10 The Washington Constitution contains a disclaimer of authority over Indian country,13 and the State is, therefore, one of those covered by § 6 of Pub.L. 280. The State did not take any action under the purported authority of Pub.L. 280 until 1957. In that year its legislature enacted a statute which obligated the State to assume criminal and civil jurisdiction over any Indian reservation within the State at the request of the tribe affected.14 Under this legislation state jurisdiction was requested by and extended to several Indian tribes within the State.15 11 In one of the first prosecutions brought under the 1957 jurisdictional scheme, an Indian defendant whose tribe had consented to the extension of jurisdiction challenged its validity on the ground that the disclaimer clause in the state constitution had not been amended in the manner allegedly required by § 6 of Pub.L. 280. State v. Paul, 53 Wash.2d 789, 337 P.2d 35. The Washington Supreme Court rejected the argument, construing the state constitutional provision to mean that the barrier posed by the disclaimer could be lifted by the state legislature.16 12 In 1963, Washington enacted Chapter 36, the law at issue in this litigation.17 The most significant feature of the new statute was its provision for the extension of at least some jurisdiction over all Indian lands within the State, whether or not the affected tribe gave its consent. Full criminal and civil jurisdiction to the extent permitted by Pub.L. 280 was extended to all fee lands in every Indian reservation and to trust and allotted lands therein when non-Indians were involved. Except for eight categories of law, however, state jurisdiction was not extended to Indians on allotted and trust lands unless the affected tribe so requested. The eight jurisdictional categories of state law that were thus extended to all parts of every Indian reservation were in the areas of compulsory school attendance, public assistance, domestic relations, mental illness, juvenile delinquency, adoption proceedings, dependent children, and motor vehicles.18 13 The Yakima Indian Nation did not request the full measure of jurisdiction made possible by Chapter 36, and the Yakima Reservation thus became subject to the system of jurisdiction outlined at the outset of this opinion.19 This litigation followed. II 14 The Yakima Nation relies on three separate and independent grounds in asserting that Chapter 36 is invalid. First, it argues that under the terms of Pub.L. 280 Washington was not authorized to enact Chapter 36 until the state constitution had been amended by "the people" so as to eliminate its Art. XXVI which disclaimed state authority over Indian lands.20 Second, it contends that Pub.L. 280 does not authorize a State to extend only partial jurisdiction over an Indian reservation. Finally, it asserts that Chapter 36, even if authorized by Pub.L. 280, violates the Fourteenth Amendment of the Constitution. We turn now to consideration of each of these arguments. III 15 We first address the contention that Washington was required to amend its constitution before it could validly legislate under the authority of Pub.L. 280. If the Tribe is correct, we need not consider the statutory and constitutional questions raised by the system of partial jurisdiction established in Chapter 36. The Tribe, supported by the United States as amicus curiae,21 argues that a requirement for popular amendatory action is to be found in the express terms of § 6 of Pub.L. 280 or, if not there, in the terms of the Enabling Act that admitted Washington to the Union.22 The argument can best be understood in the context of the specific statutory provisions involved. 16 The Enabling Act under which Washington, along with the States of Montana, North Dakota, and South Dakota, gained entry into the Union, was passed in 1889.23 Section 4 of that Act required the constitutional conventions of the prospective new States to enact provisions by which the people disclaimed title to lands owned by Indians or Indian tribes and acknowledged that those lands were to remain "under the absolute jurisdiction and control of" Congress until the Indian or United States title had been extinguished. The disclaimers were to be made "by ordinances irrevocable without the consent of the United States and the people of said States." Washington's constitutional convention enacted the disclaimer of authority over Indian lands as part of Art. XXVI of the state constitution.24 That Article, captioned "Compact with the United States," is prefaced with the statement—precisely tracking the language of the admitting statute—that "the following ordinance shall be irrevocable without the consent of the United States and the people of [the State of Washington]." Its substantive terms mirror the language used in the enabling legislation. 17 We have already noted that two distinct provisions of Pub.L. 280 are potentially applicable to States not granted an immediate cession of jurisdiction. The first, § 6, without question applies to Washington and the seven other States admitted into the Union under enabling legislation requiring organic law disclaimers similar to that just described. This much is clear from the legislative history of Pub.L. 280,25 as well as from the express language of § 6. That section provides 18 "Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act: Provided, That the provisions of this Act shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes as the case may be." 19 All other States were covered by § 7. In that section Congress gave the consent of the United States 20 "to any other State . . . to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof." 21 These provisions appear to establish different modes of procedure by which an option State, depending on which section applies to it, is to accept the Pub.L. 280 jurisdictional offer. The procedure specified in § 7 is straightforward: affirmative legislative action by which the State obligates and binds itself to assume jurisdiction. Section 6, in contrast, is delphic. The only procedure mentioned is action by the people "to amend . . . their State constitutions or existing statutes, as the case may be" to remove any legal impediments to the assumption of jurisdiction. The phrase "where necessary" in the main clause suggests that a requirement for popular—as opposed to legislative action must be found if at all in some source of law independent of Pub.L. 280. The proviso, however, has a different import. B 22 The proper construction to be given to the single inartful sentence in § 6 has provoked chapters of argument from the parties. The Tribe and the United States urge that notwithstanding the phrase "where necessary," § 6 should be construed to mandate constitutional amendment by disclaimer States. It is their position that § 6 operates not only to grant the consent of the United States to state action inconsistent with the terms of the enabling legislation but also to establish a distinct procedure to be followed by Enabling Act states. To support their position, they rely on the language of the proviso and upon certain legislative history of § 6.26 23 In the alternative, the Tribe and the United States argue that popular amendatory action, if not compelled by the terms of § 6, is mandated by the terms of the Enabling Act of Feb. 22, 1889, ch. 180, § 4. Although they acknowledge that Congress in § 6 did grant the "consent of the United States" required under the Enabling Act before the State could remove the disclaimer, they contend that § 6 did not eliminate the need for the "consent of the people" specified in the Enabling Act. In their view, the 1889 Act—if not Pub.L. 280—dictates that constitutional amendment is the only valid procedure by which that consent can be given. 24 The State draws an entirely different message from § 6. It contends that the section must be construed in light of the overall congressional purpose to facilitate a transfer of jurisdiction to those option States willing to accept the responsibility. Section 6 was designed, it says, not to establish but to remove legal barriers to state action under the authority of Pub.L. 280. The phrase "where necessary" in its view is consistent with this purpose. It would construe the word "appropriately" in the proviso to be synonymous with "where necessary" and the entire section to mean that constitutional amendment is required only if "necessary" as a matter of state law. The Washington Supreme Court having found that legislative action is sufficient to grant the "consent of the people" to removal of the disclaimer in Art. XXVI of the state constitution,27 the State argues that the procedural requirements of § 6 have been fully satisfied. It finds the Enabling Act irrelevant since in its view § 6 effectively repealed any federal law impediments in that Act to state assertion of jurisdiction under Pub.L. 280.28 C 25 From our review of the statutory, legislative, and historical materials cited by the parties, we are persuaded that Washington's assumption of jurisdiction by legislative action fully complies with the requirements of § 6. Although we adhere to the principle that the procedural requirements of Pub.L. 280 must be strictly followed, Kennerly v. District Court of Montana, 400 U.S. 423, 427, 91 S.Ct. 480, 482, 27 L.Ed.2d 507; McClanahan v. Arizona State Tax Comm'n, 411 U.S., at 180, 93 S.Ct., at 1266, and to the general rule that ambiguities in legislation affecting retained tribal sovereignty are to be construed in favor of the Indians, see, e. g., Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710, those principles will not stretch so far as to permit us to find a federal requirement affecting the manner in which the States are to modify their organic legislation on the basis of materials that are essentially speculative. Cf. Board of County Comm'rs v. United States, 308 U.S. 343, 350-351, 60 S.Ct. 285, 288-289, 84 L.Ed. 313. The language of § 6, its legislative history, and its role in Pub.L. 280 all clearly point the other way. 26 We turn first to the language of § 6. The main clause is framed in permissive, not mandatory, terms. Had the drafters intended by that clause to require popular amendatory action, it is unlikely that they would have included the words "where necessary." As written, the clause suggests that the substantive requirement for constitutional amendment must be found in some source of law independent of § 6. The basic question, then, is whether that requirement can be found in the language of the proviso to § 6 or alternatively in the terms of the Enabling Act. 27 We are unable to find the procedural mandate missing from the main clause of § 6 in the language of the proviso. That language in the abstract could be read to suggest that constitutional amendment is a condition precedent to a valid assumption of jurisdiction by disclaimer States. When examined in its context, however, it cannot fairly be read to impose such a condition. Two considerations prevent this reading. First, it is doubtful that Congress—in order to compel disclaimer States to amend their constitutions by popular vote—would have done so in a provision the first clause of which consents to that procedure "where necessary" and the proviso to which indicates that the procedure is to be followed if "appropriate." Second, the reference to popular amendatory action in the proviso is not framed as a description of the procedure the States must follow to assume jurisdiction, but instead is written as a condition to the effectiveness of "the provisions of" Pub.L. 280. When it is recalled that the only substantive provisions of the Act—other than those arguably to be found in § 7—accomplish an immediate transfer of jurisdiction to specifically named States, it seems most likely that the proviso was included to ensure that § 6 would not be construed to effect an immediate transfer to the disclaimer group of option States. The main clause removes a federal-law barrier to any new state jurisdiction over Indian country. The proviso suggests that disclaimer States are not automatically to receive jurisdiction by virtue of that removal. Without the proviso, in the event that state constitutional amendment were not found "necessary,"29 § 6 could be construed as effecting an immediate cession. Congress clearly wanted all the option States to "obligate and bind" themselves to assume the jurisdiction offered in Pub.L. 280.30 To be sure, constitutional amendment was referred to as the process by which this might be accomplished in disclaimer States. But, given the distinction that Congress clearly drew between those States and automatic-transfer States, this reference can hardly be construed to require that process. 28 Before turning to the legislative history, which, as we shall see, accords with this interpretation of § 6, we address the argument that popular amendatory action, if not a requirement of Pub.L. 280, is mandated by the legislation admitting Washington to the Union. This argument requires that two assumptions be made. The first is that § 6 eliminated some but preserved other Enabling Act barriers to a State's assertion of jurisdiction over Indian country. The second is that the phrase "where necessary" in the main clause of § 6 was intended to refer to those federal-law barriers that had been preserved. Only if each of these premises is accepted does the Enabling Act have any possible application. 29 Since we find the first premise impossible to accept, we proceed no further. Admitting legislation is, to be sure, the only source of law mentioned in the main clause of § 6 and might therefore be looked to as a referent for the phrase "where necessary" in the clause. This reading, however, is not tenable. It supplies no satisfactory answer to the question why Congress—in order to give the consent of the United States to the removal of state organic law disclaimers—would not also have by necessary implication consented to the removal of any procedural constraints on the States imposed by the Enabling Acts. The phrase "[n]otwithstanding the provisions of any Enabling Act" in § 6 is broad—broad enough to suggest that Congress when it referred to a possible necessity for state constitutional amendment did not intend thereby to perpetuate any such requirement in an Enabling Act. Even assuming that the phrase "consent of the people" in the Enabling Act must be construed to preclude consent by legislative action—and the Tribe and the United States have offered no concrete authority to support this restrictive reading of the phrase—31 we think it obvious that in the "notwithstanding" clause of § 6 Congress meant to remove any federal impediments to state jurisdiction that may have been created by an Enabling Act. 30 The legislative history of Pub.L. 280 supports the conclusion that § 6 did not of its own force establish a state constitutional amendment requirement and did not preserve any such requirement that might be found in an Enabling Act. Public Law 280 was the first jurisdictional bill of general applicability ever to be enacted by Congress. It reflected congressional concern over law-and-order problems on Indian reservations and the financial burdens of continued federal jurisdictional responsibilities on Indian lands, Bryan v. Itasca County, 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710. It was also, however, without question reflective of the general assimilationist policy followed by Congress from the early 1950's through the late 1960's.32 See H.R.Rep. No. 848, 83d Cong., 1st Sess. (1953). See also Hearings on H.R. 459, H.R. 3235, and H.R. 3624 before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 82d Cong., 2d Sess. (1952) (hereinafter 1952 Hearings). The failure of Congress to write a tribal-consent provision into the transfer provision applicable to option States as well as its failure to consult with the tribes during the final deliberations on Pub.L. 280 provide ample evidence of this.33 31 Indeed, the circumstances surrounding the passage of Pub.L. 280 in themselves fully bear out the State's general thesis that Pub.L. 280 was intended to facilitate, not to impede, the transfer of jurisdictional responsibility to the States. Public Law 280 originated in a series of individual bills introduced in the 83d Congress to transfer jurisdiction to the five willing States which eventually were covered in §§ 2 and 4.34 H.R.Rep. No. 848, supra. Those bills were consolidated into H.R. 1063, which was referred to the House Committee on Interior and Insular Affairs for consideration. Closed hearings on the bills were held before the Subcommittee on Indian Affairs on June 29 and before the Committee on July 15, 1953.35 During the opening session on June 29, Committee Members, counsel, and representatives of the Department of the Interior discussed various proposals designed to give H.R. 1063 general applicability. June 29 Hearings 1-22. It rapidly became clear that the Members favored a general bill. Ibid. At this point, Committee counsel noted that several States "have constitutional prohibitions against jurisdiction." Id., at 23. There followed some discussion of the manner in which these States should be treated. On July 15, a version of § 6 was proposed. July 15 Hearings 6. After further discussion of the disclaimer problem, the "notwithstanding" clause was added, id., at 9, and the language eventually enacted as § 6 was approved by the Committee that day. The speed and the context alone suggest that § 6 was designed to remove an obstacle to state jurisdiction, not to create one. And the discussion at the hearings, which in essence were markup sessions, makes this clear.36 32 While some Committee Members apparently thought that § 6 States, as a matter of state law, would have to amend their constitutions in order to remove the disclaimers found there,37 there is no indication that the Committee intended to impose any such requirement.38 33 We conclude that § 6 of Pub.L. 280 does not require disclaimer States to amend their constitutions to make an effective acceptance of jurisdiction. We also conclude that any Enabling Act requirement of this nature was effectively repealed by § 6. If as a matter of state law a constitutional amendment is required, that procedure must—as a matter of state law—be followed. And if under state law a constitutional amendment is not required, disclaimer States must still take positive action before Pub.L. 280 jurisdiction can become effective. The Washington Supreme Court having determined that for purposes of the repeal of Art. XXVI of the Washington Constitution legislative action is sufficient,39 and appropriate state legislation having been enacted, it follows that the State of Washington has satisfied the procedural requirements of § 6. IV 34 We turn to the question whether the State was authorized under Pub.L. 280 to assume only partial subject-matter and geographic jurisdiction over Indian reservations within the State.40 35 The argument that Pub.L. 280 does not permit this scheme of partial jurisdiction relies primarily upon the text of the federal law. The main contention of the Tribe and the United States is that partial jurisdiction, because not specifically authorized, must therefore be forbidden. In addition, they assert that the interplay between the provisions of Pub.L. 280 demonstrates that § 6 States are required, if they assume any jurisdiction, to assume as much jurisdiction as was transferred to the mandatory States.41 Pointing out that 18 U.S.C. § 1151 defines Indian country for purposes of federal jurisdiction as including an entire reservation notwithstanding "the issuance of any patent," they reason that when Congress in § 2 transferred to the mandatory States "criminal jurisdiction" over "offenses committed by or against Indians in the Indian country," it meant that all parts of Indian country were to be covered. Similarly, they emphasize that civil jurisdiction of comparable scope was transferred to the mandatory States. They stress that in both §§ 2 and 4, the consequence of state assumption of jurisdiction is that the state "criminal laws" and "civil laws of . . . general application" are henceforth to "have the same force and effect within . . . Indian country as they have elsewhere [within] the State." Finally, the Tribe and the United States contend that the congressional purposes of eliminating the jurisdictional hiatus thought to exist on Indian reservations, of reducing the cost of the federal responsibility for jurisdiction on tribal lands, and of assimilating the Indian tribes into the general state population are disserved by the type of checkerboard arrangement permitted by Chapter 36. 36 We agree, however, with the State of Washington that statutory authorization for the state jurisdictional arrangement is to be found in the very words of § 7. That provision permits option States to assume jurisdiction "in such manner" as the people of the State shall "by affirmative legislative action, obligate and bind the State to assumption thereof." Once the requirements of § 6 have been satisfied, the terms of § 7 appear to govern the scope of jurisdiction conferred upon disclaimer States. The phrase "in such manner" in § 7 means at least that any option State can condition the assumption of full jurisdiction on the consent of an affected tribe. And here Washington has done no more than refrain from exercising the full measure of allowable jurisdiction without consent of the tribe affected. 37 Section 6, as we have seen, was placed in the Act to eliminate possible organic law barriers to the assumption of jurisdiction by disclaimer States. The Tribe and the United States acknowledge that it is a procedural, not a substantive, section. The clause contains only one reference of relevance to the partial-jurisdiction question. This is the phrase "assumption of civil and criminal jurisdiction in accordance with the provisions of this Act." As both parties recognize, this phrase necessarily leads to other "provisions" of the Act for clarification of the substantive scope of the jurisdictional grant. The first question then is which other "provisions" of the Act govern. The second is what constraints those "provisions" place on the jurisdictional arrangements made by option States. 38 The Tribe argues as an initial matter that § 7 is not one of the "provisions" referred to by § 6. It relies in part upon the contrast between the phrase "assumption of civil and criminal jurisdiction" in § 6 and the disjunctive phrase "criminal offenses or civil causes of action" in § 7. From this distinction between the "civil and criminal jurisdiction" language of § 6 and the optional language in § 7, we are asked to conclude that § 6 States must assume full jurisdiction in accord with the terms applicable to the mandatory States even though § 7 States are permitted more discretion. We are unable to accept this argument, not only because the statutory language does not fairly support it, but also because the legislative history is wholly to the contrary. It is clear from the Committee hearings that the States covered by § 6 were, except for the possible impediments contained in their organic laws, to be treated on precisely the same terms as option States.42 39 Section 6, as we have seen, was essentially an afterthought designed to accomplish the limited purpose of removing any barrier to jurisdiction posed by state organic law disclaimers of jurisdiction over Indians. All option States were originally treated under the aegis of § 7.43 The record of the Committee hearings makes clear that the sole purpose of § 6 was to resolve the disclaimer problem.44 Indeed, to the extent that the Tribe and the United States suggest that disclaimer States stand on a different footing from all other option States, their argument makes no sense. It would ascribe to Congress an intent to require States that by force of organic law barriers may have had only a limited involvement with Indian country to establish the most intrusive presence possible on Indian reservations, if any at all, and at the same time an intent to allow States with different traditions to exercise more restraint in extending the coverage of their law. 40 The Tribe and the United States urge that even if, as we have concluded, all option States are ultimately governed by § 7, the reference in that section to assumption of jurisdiction "as provided for in [the] Act" should be construed to mean that the automatic-transfer provisions of §§ 2 and 4 must still apply. The argument would require a conclusion that the option States stand on the same footing as the mandatory States. This view is not persuasive. The mandatory States were consulted prior to the introduction of the single-state bills that were eventually to become Pub.L. 280. All had indicated their willingness to accept whatever jurisdiction Congress was prepared to transfer. This, however, was not the case with the option States. Few of those States had been consulted, and from the June 29 and July 15 Hearings it is apparent that the drafters were primarily concerned with establishing a general transfer scheme that would facilitate, not impede, future action by other States willing to accept jurisdiction. It is clear that the all-or-nothing approach suggested by the Tribe would impede even the most responsible and sensitive jurisdictional arrangements designed by the States. To find that under Pub.L. 280 a State could not exercise partial jurisdiction, even if it were willing to extend full jurisdiction at tribal request, would be quite inconsistent with this basic history. 41 The language of § 7, which we have found applicable here, provides, we believe, surer guidance to the issue before us.45 The critical language in § 7 is the phrase permitting the assumption of jurisdiction "at such time and in such manner as the people of the State shall . . . obligate and bind the State to assumption thereof." Whether or not "in such manner" is fully synonymous with "to such extent," the phrase is at least broad enough to authorize a State to condition the extension of full jurisdiction over an Indian reservation on the consent of the tribe affected. 42 The United States argues that a construction of Pub.L. 280 which permits selective extension of state jurisdiction allows a State to "pick and choose" only those subject-matter areas and geographical parts of reservations over which it would like to assume responsibility. Congress, we are told, passed Pub.L. 280 not as a measure to benefit the States, but to reduce the economic burdens associated with federal jurisdiction on reservations, to respond to a perceived hiatus in law enforcement protections available to tribal Indians, and to achieve an orderly assimilation of Indians into the general population. That these were the major concerns underlying the passage of Pub.L. 280 cannot be doubted. See Bryan v. Itasca County, 426 U.S., at 379, 96 S.Ct., at 2106. 43 But Chapter 36 does not reflect an attempt to reap the benefits and to avoid the burdens of the jurisdictional offer made by Congress. To the contrary, the State must assume total jurisdiction whenever a tribal request is made that it do so. Moreover, the partial geographic and subject-matter jurisdiction that exists in the absence of tribal consent is responsive to the law enforcement concerns that underlay the adoption of Pub.L. 280. State jurisdiction is complete as to all non-Indians on reservations and is also complete as to Indians on nontrust lands. The law enforcement hiatus that preoccupied the 83d Congress has to that extent been eliminated. On trust and restricted lands within the reservations whose tribes have not requested the coverage of state law, jurisdiction over crimes by Indians is, as it was when Pub.L. 280 was enacted, shared by the tribal and Federal Governments. To the extent that this shared federal and tribal responsibility is inadequate to preserve law and order, the tribes need only request and they will receive the protection of state law. 44 The State of Washington in 1963 could have unilaterally extended full jurisdiction over crimes and civil causes of action in the entire Yakima Reservation without violating the terms of Pub.L. 280. We are unable to conclude that the State, in asserting a less intrusive presence on the Reservation while at the same time obligating itself to assume full jurisdictional responsibility upon request, somehow flouted the will of Congress. A State that has accepted the jurisdictional offer in Pub.L. 280 in a way that leaves substantial play for tribal self-government, under a voluntary system of partial jurisdiction that reflects a responsible attempt to accommodate the needs of both Indians and non-Indians within a reservation, has plainly taken action within the terms of the offer made by Congress to the States in 1953. For Congress surely did not deny an option State the power to condition its offer of full jurisdiction on tribal consent. V 45 Having concluded that Chapter 36 violates neither the procedural nor the substantive terms of Pub.L. 280, we turn, finally, to the question whether the "checkerboard" pattern of jurisdiction applicable on the reservations of nonconsenting tribes is on its face invalid under the Equal Protection Clause of the Fourteenth Amendment.46 The Court of Appeals for the Ninth Circuit concluded that it is, reasoning that the land-title classification is too bizarre to meet "any formulation of the rational basis test." 552 F.2d, at 1335. The Tribe advances several different lines of argument in defense of this ruling. 46 First, it argues that the classifications implicit in Chapter 36 are racial classifications, "suspect" under the test enunciated in McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222, and that they cannot stand unless justified by a compelling state interest. Second, it argues that its interest in self-government is a fundamental right, and that Chapter 36—as a law abridging this right—is presumptively invalid. Finally, the Tribe argues that Chapter 36 is invalid even if reviewed under the more traditional equal protection criteria articulated in such cases as Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520.47 47 We agree with the Court of Appeals to the extent that its opinion rejects the first two of these arguments and reflects a judgment that Chapter 36 must be sustained against an Equal Protection Clause attack if the classifications it employs "rationally furthe[r] the purpose identified by the State." Massachusetts Bd. of Retirement v. Murgia, supra, at 314, 96 S.Ct., at 2567. It is settled that "the unique legal status of Indian tribes under federal law" permits the Federal Government to enact legislation singling out tribal Indians, legislation that might otherwise be constitutionally offensive. Morton v. Mancari, 417 U.S. 535, 551-552, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290. States do not enjoy this same unique relationship with Indians, but Chapter 36 is not simply another state law. It was enacted in response to a federal measure explicitly designed to readjust the allocation of jurisdiction over Indians. The jurisdiction permitted under Chapter 36 is, as we have found, within the scope of the authorization of Pub.L. 280. And many of the classifications made by Chapter 36 are also made by Pub.L. 280. Indeed, classifications based on tribal status and land tenure inhere in many of the decisions of this Court involving jurisdictional controversies between tribal Indians and the States, see, e. g., United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869. For these reasons, we find the argument that such classifications are "suspect" an untenable one. The contention that Chapter 36 abridges a "fundamental right" is also untenable. It is well established that Congress, in the exercise of its plenary power over Indian affairs, may restrict the retained sovereign powers of the Indian tribes. See, e. g., United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303. In enacting Chapter 36, Washington was legislating under explicit authority granted by Congress in the exercise of that federal power.48 48 The question that remains, then, is whether the lines drawn by Chapter 36 fail to meet conventional Equal Protection Clause criteria, as the Court of Appeals held. Under those criteria, legislative classifications are valid unless they bear no rational relationship to the State's objectives. Massachusetts Bd. of Retirement v. Murgia, supra, at 314, 96 S.Ct., at 2567. State legislation "does not violate the Equal Protection Clause merely because the classifications [it makes] are imperfect." Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491. Under these standards we have no difficulty in concluding that Chapter 36 does not offend the Equal Protection Clause. 49 The lines the State has drawn may well be difficult to administer. But they are no more or less so than many of the classifications that pervade the law of Indian jurisdiction. See Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346; Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96. Chapter 36 is fairly calculated to further the State's interest in providing protection to non-Indian citizens living within the boundaries of a reservation while at the same time allowing scope for tribal self-government on trust or restricted lands. The land-tenure classification made by the State is neither an irrational nor arbitrary means of identifying those areas within a reservation in which tribal members have the greatest interest in being free of state police power. Indeed, many of the rules developed in this Court's decisions in cases accommodating the sovereign rights of the tribes with those of the States are strikingly similar. See, e. g., United States v. McBratney, supra; Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419; Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251; McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129. In short, checkerboard jurisdiction is not novel in Indian law, and does not, as such, violate the Constitution. 50 For the reasons set out in this opinion, the judgment of the Court of Appeals is reversed. 51 It is so ordered. 52 Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting. 53 For over 140 years, the Court has resolved ambiguities in statutes, documents, and treaties that affect retained tribal sovereignty in favor of the Indians.1 This interpretive principle is a response to the unique relationship between the Federal Government and the Indian people, "who are the wards of the nation, dependent upon its protection and good faith." Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 122, 74 L.Ed. 478 (1930). More fundamentally, the principle is a doctrinal embodiment of "the right of [Indian nations] to make their own laws and be ruled by them," Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251 (1959), a right emphatically reaffirmed last Term in United States v. Wheeler, 435 U.S. 313, 322-330, 98 S.Ct. 1079, 1085-1089, 55 L.Ed.2d 303 (1978). Although retained tribal sovereignty "exists only at the sufferance of Congress," id., at 323, 98 S.Ct., at 1086, the States may not encroach upon an Indian nation's internal self-government until Congress has unequivocally sanctioned their presence within a reservation. See ibid.; McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 168-169, 172-173, 93 S.Ct. 1257, 1260-1261, 1262-1263, 36 L.Ed.2d 129 (1973); Worcester v. Georgia, 6 Pet. 515, 554, 557, 561, 8 L.Ed. 483 (1832); see also Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212, 98 S.Ct. 1011, 1022, 55 L.Ed.2d 209 (1978) (MARSHALL, J., dissenting). 54 While the Court in its discussion of the disclaimer issue professes to follow this settled principle of statutory interpretation, ante, at 484, it completely ignores the rule when addressing Washington's assertion of partial jurisdiction. In my view, the language and legislative history of Pub.L. 280 do not unequivocally authorize States to assume the type of selective geographic and subject-matter jurisdiction that Washington asserted in 1963.2 Because our precedents compel us to construe the statute in favor of the Indians, I respectfully dissent. 55 As is evident from the majority opinion, the text of Pub.L. 280 does not on its face empower option States to assert partial geographic or subject-matter jurisdiction over Indian reservations.3 The statute refers without limitation to "criminal" and "civil" jurisdiction. Nevertheless, because option States could have conditioned their exercise of full jurisdiction on the consent of affected tribes, ante, at 495, 498, and because Pub.L. 280 would have permitted Washington to extend full jurisdiction over the Yakima Indian Reservation without consulting the Tribe, ante, at 499, the Court concludes that the States can unilaterally assert less than full jurisdiction. 56 I agree that Pub.L. 280 permits option States to refuse jurisdiction absent the consent of the Indians, and that prior to the 1968 amendments of the Act,4 Washington could have unilaterally extended full jurisdiction over the Reservation. But the majority does not explain how the statutory language governing exercise of full jurisdiction allows the States to exercise piecemeal jurisdiction. That Washington has done no more than "refrain from exercising the full measure of allowable jurisdiction," ante, at 495, raises but does not answer the critical question whether Pub.L. 280 sanctions this jurisdictional arrangement. 57 The sparse legislative history of Pub.L. 280, like the statutory language, says nothing about the propriety of partial jurisdictional schemes. In light of the expressed reluctance of at least one State to assume the financial burden that jurisdiction over Indian territory entails,5 this silence is particularly instructive. Although selective assertion of jurisdiction within reservations would obviously ameliorate such fiscal concerns, at no point in the congressional deliberations was it advanced as a solution. Rather, Congress permitted the option States to refrain from exercising full jurisdiction until they could meet their financial obligations.6 The legislative focus was clearly on full-fledged assumption of jurisdiction.7 58 To disregard this legislative focus and allow assumption of partial jurisdiction undermines an important purpose behind Pub.L. 280. In enacting the statute, Congress sought to eliminate the serious "hiatus in law-enforcement authority" on Indian reservations, H.R.Rep. No. 848, supra n. 5, at 6, which was attributable in large part to the division of law enforcement functions among federal, state, and Indian authorities.8 It intended to accomplish this goal by granting to the States the authority previously exercised by the Federal Government, thereby simplifying the administration of law on Indian reservations. See 1953 Subcommittee Hearings 7. Washington's complex jurisdictional system, dependent on the status of the offender, the location of the crime, and the type of offense involved, by no means simplifies law enforcement on the Yakima Reservation. Cf. 1 National American Indian Court Judges Assn., Justice and the American Indian: The Impact of Public Law 280 upon the Administration of Justice on Indian Reservations 6-13 (1974). To the contrary, it exacerbates the confusion that the statute was designed to redress. 59 Had Congress intended to condone exercise of limited subject-matter jurisdiction on a random geographical basis, it could have easily expressed this purpose. See Bryan v. Itasca County, 426 U.S. 373, 392-393, 96 S.Ct. 2102, 2112-2113, 48 L.Ed.2d 710 (1976); Mattz v. Arnett, 412 U.S. 481, 504-505, 93 S.Ct. 2245, 2257-2258, 37 L.Ed.2d 92 (1973); McClanahan v. Arizona State Tax Comm'n, 411 U.S., at 173-175, and n. 13, 93 S.Ct., at 1262-1263, and n. 13; Menominee Tribe of Indians v. United States, 391 U.S. 404, 412-413, 88 S.Ct. 1705, 1710-1711, 20 L.Ed.2d 697 (1968); Creek County Commrs' v. Seber, 318 U.S. 705, 713, 63 S.Ct. 920, 925, 87 L.Ed. 1094 (1943). Indeed, it did so in the 1968 amendments to the Act when it authorized partial criminal or civil jurisdiction by subject matter, geography, or both, but only with the Indians' consent. 25 U.S.C. §§ 1321(a), 1322(a).9 I am unwilling to presume that Congress' failure in 1953 to sanction piecemeal jurisdiction in similar terms was unintentional. In any event, it is indisputable that the statute does not unambiguously authorize assertion of partial jurisdiction. If we adhere more than nominally to the practice of resolving ambiguities in favor of the Indians, then Washington's jurisdictional arrangement cannot stand. 60 Accordingly, I dissent. 1 The statute, codified as Wash.Rev.Code § 37.12.010 (1976), provides: "Assumption of criminal and civil jurisdiction by state. The State of Washington hereby obligates and binds itself to assume criminal and civil jurisdiction over Indians and Indian territory, reservations, country, and lands within this state in accordance with the consent of the United States given by the act of August 15, 1953 (Public Law 280, 83rd Congress, 1st Session), but such assumption of jurisdiction shall not apply to Indians when on their tribal lands or allotted lands within an established Indian reservation and held in trust by the United States or subject to a restriction against alienation imposed by the United States, unless the provisions of R.C.W. 37.12.021 [tribal consent] have been invoked, except for the following: "(1) Compulsory school attendance; "(2) Public assistance; "(3) Domestic relations; "(4) Mental illness; "(5) Juvenile delinquency; "(6) Adoption proceedings; "(7) Dependent children; and "(8) Operation of motor vehicles upon the public streets, alleys, roads and highways: Provided further, That Indian tribes that petitioned for, were granted and became subject to state jurisdiction pursuant to this chapter on or before March 13, 1963 shall remain subject to state civil and criminal jurisdiction as if chapter 36, Laws of 1963 had not been enacted." The statute will be referred to in this opinion as Chapter 36. 2 Act of Aug. 15, 1953, 67 Stat. 588-590. For the full text of the Act, see n.9, infra. 3 The complaint also contained other claims that were decided adversely to the plaintiff by the District Court. After extensive discovery and the entry of a pretrial order, the District Court granted partial summary judgment in favor of the State on several of these claims. On the question of compliance with Pub.L. 280, the District Court held that it was bound by the decision of the Court of Appeals for the Ninth Circuit in Quinault Tribe of Indians v. Gallagher, 368 F.2d 648, 655-658, which had determined that the State of Washington could accept jurisdiction under Pub.L. 280 without first amending its constitution and that Washington's jurisdictional arrangement did not constitute an unauthorized partial assumption of jurisdiction. The District Court also rejected the claim that Chapter 36 was facially invalid under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The question of the constitutional validity of Chapter 36 as applied to the Yakima Reservation was reserved for a hearing and factual determination. After a one-week trial, the District Court found that the appellee had not proved "that the state or county have discriminated . . . to deprive any Indian or the plaintiff Tribe of any service or protection, resource or asset afforded under the same state law to other citizens or similar geographic location." The complaint was then dismissed. The opinion of the District Court is unreported. 4 The en banc hearing was ordered by the Court of Appeals sua sponte after the original panel had heard argument. This hearing was limited to the question whether that court's earlier partial-jurisdiction holding in Quinault Tribe of Indians v. Gallagher, supra, should be overruled. A majority of the en banc panel agreed with the result in Quinault, finding no statutory impediment to the assumption of partial geographic and subject-matter jurisdiction. 550 F.2d, at 448. Five judges dissented. Id., at 449. 5 The three-judge appellate court's equal protection decision was based upon the disparity created by Chapter 36 in making criminal jurisdiction over Indians depend upon whether the alleged offense occurred on fee or nonfee land. 552 F.2d, at 1334-1335. The court found this criterion for the exercise of state criminal jurisdiction facially unconstitutional. The appellate court found it unnecessary, therefore, to reach the Tribe's contention that the eight statutory categories of subject-matter jurisdiction are vague or its further contention that the application of Chapter 36 deprived it of equal protection of the laws. 552 F.2d, at 1334. In its motion to affirm, filed here in response to the appellants' jurisdictional statement, the Yakima Nation invoked in support of the judgment "each and every one" of the contentions it had made in the District Court and Court of Appeals, but limited its discussion to the equal protection rationale relied upon by the appellate court. In its brief on the merits the Tribe has addressed—in addition to those subjects implicit in our order noting probable jurisdiction, see n. 20, infra, one issue that merits brief discussion. The Tribe contends that Chapter 36 is void for failure to meet the standards of definiteness required by the Due Process Clause of the Fourteenth Amendment, asserting that the eight subject-matter categories over which the State has extended full jurisdiction are too vague to give tribal members adequate notice of what conduct is punishable under state law. This challenge is without merit. As the District Court observed, Chapter 36 creates no new criminal offenses but merely extends jurisdiction over certain classes of offenses defined elsewhere in state law. If those offenses are not sufficiently defined, individual tribal members may defend against any prosecutions under them at the time such prosecutions are brought. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669. The eight subject-matter areas are themselves defined with reasonable clarity in language no less precise than that commonly accepted in federal jurisdictional statutes in the same field. See United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706. The District Court's ruling that Chapter 36 is not void for vagueness under the Due Process Clause of the Fourteenth Amendment was therefore correct. 6 These are the membership figures given by the District Court. The United States, in its amicus curiae brief, has indicated that more than 5,000 tribal members live permanently on the Reservation and that the number increases during the summer months. 7 These abstract principles do not and could not adequately describe the complex jurisdictional rules that have developed over the years in cases involving jurisdictional clashes between the States and tribal Indians since Worcester v. Georgia was decided. For a full treatment of the subject, see generally, M. Price, Law and the American Indian (1973); U. S. Dept. of Interior, Federal Indian Law (1958). 8 See Price, supra n. 7, at 210. Before 1953, there had been other surrenders of authority to some States. See, e. g., 62 Stat. 1224, 25 U.S.C. § 232 (New York), 64 Stat. 845, 25 U.S.C. § 233 (New York); 54 Stat. 249 (Kansas); 60 Stat. 229 (North Dakota); and 62 Stat. 1161 (Iowa). Public Law 280, however, was the first federal statute to attempt an omnibus transfer. 9 The Act provides in full: "AN ACT "To confer jurisdiction on the States of California, Minnesota, Nebraska, Oregon, and Wisconsin, with respect to criminal offenses and civil causes of action committed or arising on Indian reservations within such States, and for other purposes. "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That chapter 53 of title 18, United States Code, is hereby amended by inserting at the end of the chapter analysis preceding section 1151 of such title the following new item: " '1162. State jurisdiction over offenses committed by or against Indians in the Indian country.' "SEC. 2. Title 18, United States Code, is hereby amended by inserting in chapter 53 thereof immediately after section 1161 a new section, to be designated as section 1162, as follows: " '§ 1162. State jurisdiction over offenses committed by or against Indians in the Indian country " '(a) Each of the States listed in the following table shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over offenses committed elsewhere within the State, and the criminal laws of such State shall have the same force and effect within such Indian country as they have elsewhere within the State: " 'State of Indian country affected California All Indian country within the State Minnesota All Indian country within the State, except the Red Lake Reservation Nebraska All Indian country within the State Oregon All Indian country within the State, except the Warm Springs Reservation Wisconsin All Indian country within the State, except the Menominee Reservation " '(b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall deprive any Indian or any Indian tribe, band, or community of any right, privilege or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof. " '(c) The provisions of sections 1152 and 1153 of this chapter shall not be applicable within the areas of Indian country listed in subsection (a) of this section.' "SEC. 3. Chapter 85 of title 28, United States Code, is hereby amended by inserting at the end of the chapter analysis preceding section 1331 of such title the following new item: " '1360. State civil jurisdiction in actions to which Indians are parties.' "SEC. 4. Title 28, United States Code, is hereby amended by inserting in chapter 85 thereof immediately after section 1359 a new section, to be designated as section 1360, as follows: " '§ 1360. State civil jurisdiction in actions to which Indians are parties " '(a) Each of the States listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State: " 'State of Indian country affected California All Indian country within the State Minnesota All Indian country within the State, except the Red Lake Reservation Nebraska All Indian country within the State Oregon All Indian country within the State, except the Warm Springs Reservation Wisconsin All Indian country within the State, except the Menominee Reservation " '(b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein. " '(c) Any tribal ordinance or custom heretofore or hereafter adopted by an Indian tribe, band, or community in the exercise of any authority which it may possess shall, if not inconsistent with any applicable civil law of the State, be given full force and effect in the determination of civil causes of action pursuant to this section.' "SEC. 5. Section 1 of the Act of October 5, 1949 (63 Stat. 705, ch. 604), is hereby repealed, but such repeal shall not affect any proceedings heretofore instituted under that section. "SEC. 6. Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act: Provided, That the provisions of this Act shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes as the case may be. "SEC. 7. The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this Act, to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof." 10 See n. 9, supra. The five States given immediate jurisdiction were California, Minnesota, Nebraska, Oregon, and Wisconsin. Alaska was added to this group in 1958. Act of Aug. 8, 1958, 72 Stat. 545, codified at 18 U.S.C. § 1162, 28 U.S.C. § 1360. 11 See n. 9, supra. 12 See n. 9, supra. 13 Wash.Const., Art. XXVI, ¶ 2. 14 Wash.Rev.Code, ch. 37.12 (1976). 15 For a detailed discussion of the Washington history under Pub.L. 280, see 1 National American Indian Court Judges Assn., Justice and the American Indian: The Impact of Public Law 280 upon the Administration of Justice on Indian Reservations (1974). 16 The Washington Supreme Court relied upon a previous decision in which it had rejected a challenge to Washington legislation permitting taxation of property leased from the Federal Government. Boeing Aircraft Co. v. Reconstruction Finance Corp., 25 Wash.2d 652, 171 P.2d 838. The Boeing legislation was challenged on the ground that the State had failed to remove by amendment a constitutional disclaimer of authority to tax federal property, and the Washington court held in Boeing that legislative action was sufficient. 17 See n. 1, supra. 18 See nn. 1 and 5, supra. 19 Those tribes that had consented to state jurisdiction under the 1957 law remained fully subject to such jurisdiction. Wash.Rev.Code § 37.12.010 (1976). Since 1963 only one tribe, the Colville, has requested the extension of full state jurisdiction. 1 National American Indian Court Judges, supra, n. 15, at 77-81. The Yakima Nation, ever since 1952 when its representatives objected before a congressional committee to a predecessor of Pub.L. 280, see n. 33, infra, has consistently contested the wisdom and the legality of attempts by the State to exercise jurisdiction over its Reservation lands. See ibid. 20 Washington strenuously argues that this question is not properly before the Court. We think that it is. The Yakima Indian Nation has pressed this issue throughout the litigation. In its motion to dismiss or affirm, the alleged invalidity of Washington's legislative assumption of jurisdiction was presented as a basis upon which the judgment below should be sustained. See n. 5, supra. As the prevailing party, the appellee was of course free to defend its judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered by the District Court or the Court of Appeals. United States v. American Ry. Express Co., 265 U.S. 425, 435-436, 44 S.Ct. 560, 563-564, 68 L.Ed. 1087; Dandridge v. Williams, 397 U.S. 471, 475, and n. 6, 90 S.Ct. 1153, 1156, and n. 6, 25 L.Ed.2d 491. Moreover, the disclaimer issue was implicit in the subjects the parties were requested to address in our order noting probable jurisdiction of this appeal. 435 U.S. 903, 98 S.Ct. 1447, 55 L.Ed.2d 493. Cf. Gent v. Arkansas, 384 U.S. 937, 86 S.Ct. 1454, 16 L.Ed.2d 537; Zicarelli v. New Jersey State Comm'n, 401 U.S. 933, 91 S.Ct. 916, 28 L.Ed.2d 213. Washington also contends that this Court's summary dismissals in Makah Indian Tribe v. State, 76 Wash.2d 485, 457 P.2d 590, appeal dismissed, 397 U.S. 316, 90 S.Ct. 1115, 25 L.Ed.2d 335; Tonasket v. State, 84 Wash.2d 164, 525 P.2d 744, appeal dismissed, 420 U.S. 915, 95 S.Ct. 1108, 43 L.Ed.2d 387; and Comenout v. Burdman, 84 Wash.2d 192, 525 P.2d 217, appeal dismissed, 420 U.S. 915, 95 S.Ct. 1108, 43 L.Ed.2d 387, should preclude reconsideration of the disclaimer issue here. In those cases, it had been argued that Washington's statutory assumption of jurisdiction was ineffective under Pub.L. 280 and invalid under the state constitution because of the absence of a constitutional amendment eliminating Art. XXVI. In each case, the Washington Supreme Court rejected both the state constitutional and the federal arguments. On appeal from each, the appellants questioned the validity of the state court's conclusion that under the federal statute no constitutional amendment was required. Our summary dismissals are, of course, to be taken as rulings on the merits, Hicks v. Miranda, 422 U.S. 332, 343-345, 95 S.Ct. 2281, 2288-2289, 45 L.Ed.2d 223, in the sense that they rejected the "specific challenges presented in the statement of jurisdiction" and left "undisturbed the judgment appealed from." Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199. They do not, however, have the same precedential value here as does an opinion of this Court after briefing and oral argument on the merits, Edelman v. Jordan, 415 U.S. 651, 670-671, 94 S.Ct. 1347, 1359-1360, 39 L.Ed.2d 662; Richardson v. Ramirez, 418 U.S. 24, 53, 94 S.Ct. 2655, 2670, 41 L.Ed.2d 551. A summary dismissal of an appeal represents no more than a view that the judgment appealed from was correct as to those federal questions raised and necessary to the decision. It does not, as we have continued to stress, see, e. g., Mandel v. Bradley, supra, necessarily reflect our agreement with the opinion of the court whose judgment is appealed. It is not at all unusual for the Court to find it appropriate to give full consideration to a question that has been the subject of previous summary action. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 309 n. 1, 96 S.Ct. 2562, 2565, n. 1, 49 L.Ed.2d 520; Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14, 96 S.Ct. 2882, 2891, 49 L.Ed.2d 752. We do so in this case. The question that Washington asks us to avoid or to resolve on the basis of stare decisis has never received full plenary attention here. It has been the subject of extensive briefing and argument by the parties. It has provoked several, somewhat uncertain, opinions from the Washington courts, see n. 27, infra, whose ultimate judgments were the subjects of summary dismissals here. Finally, it is an issue upon which the Executive Branch of the United States Government has recently changed its position diametrically, as explained in its amicus brief and oral argument in this case. 21 The United States has fully briefed the constitutional amendment question and the question whether partial jurisdiction is authorized by Pub.L. 280. Its position on the equal protection holding of the Court of Appeals is equivocal. 22 The Tribe also contends that under its 1855 Treaty with the United States, 12 Stat. 951, it was guaranteed a right of self-government that was not expressly abrogated by Pub.L. 280. The argument assumes that under our cases, see, e. g., Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697, treaty rights are preserved unless Congress has shown a specific intent to abrogate them. Although we have stated that the intention to abrogate or modify a treaty is not to be lightly imputed, id., at 413, 88 S.Ct., at 1711; Pigeon River Co. v. Cox Co., 291 U.S. 138, 160, 54 S.Ct. 361, 367, 78 L.Ed. 695, this rule of construction must be applied sensibly. In this context, the argument made by the Tribe is tendentious. The treaty right asserted by the Tribe is jurisdictional. So also is the entire subject-matter of Pub.L. 280. To accept the Tribe's position would be to hold that Congress could not pass a jurisdictional law of general applicability to Indian country unless in so doing it itemized all potentially conflicting treaty rights that it wished to affect. This we decline to do. The intent to abrogate inconsistent treaty rights is clear enough from the express terms of Pub.L. 280. 23 Act of Feb. 22, 1889, ch. 180, § 4, 25 Stat. 676. The Act provides: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the inhabitants of all that part of the area of the United States now constituting the Territories of Dakota, Montana, and Washington, as at present described, may become the States of North Dakota, South Dakota, Montana, and Washington, respectively, as hereinafter provided. * * * * * "SEC. 4. That the delegates to the conventions elected as provided for in this act shall meet at the seat of government of each of said Territories . . . after organization, shall declare, on behalf of the people of said proposed States, that they adopt the Constitution of the United States; whereupon the said conventions shall be, and are hereby, authorized to form constitutions and States governments for said proposed States, respectively. The constitutions shall be republican in form, and make no distinction in civil or political rights on account of race or color, except as to Indians not taxed, and not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence. And said conventions shall provide, by ordinances irrevocable without the consent of the United States and the people of said States: * * * * * "Second. That the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States . . .." Other admitting Acts requiring a disclaimer of authority over Indian lands are Act of July 16, 1894, ch. 138, 28 Stat. 107 (Utah); Act of June 16, 1906, ch. 3335, 34 Stat. 267 (Oklahoma); Act of June 20, 1910, ch. 310, 36 Stat. 557 (Arizona and New Mexico). The language of these Acts is virtually the same as that of 25 Stat. 676. 24 Article XXVI reads as follows: "COMPACT WITH THE UNITED STATES "The following ordinance shall be irrevocable without the consent of the United States and the people of this state: * * * * * "Second. That the people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries of this state, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States and that the lands belonging to citizens of the United States residing without the limits of this state shall never be taxed at a higher rate than the lands belonging to residents thereof; and that no taxes shall be imposed by the state on lands or property therein, belonging to or which may be hereafter purchased by the United States or reserved for use: Provided, That nothing in this ordinance shall preclude the state from taxing as other lands are taxed any lands owned or held by any Indian who has severed his tribal relations, and has obtained from the United States or from any person a title thereto by patent or other grant, save and except such lands as have been or may be granted to any Indian or Indians under any act of congress containing a provision exempting the lands thus granted from taxation, which exemption shall continue so long and to such an extent as such act of congress may prescribe." 25 See H.R.Rep. No. 848, 83d Cong., 1st Sess. (1953). According to this report accompanying H.R.Rep. 1063 (the House version of Pub.L. 280) "[e]xamination of the Federal statutes and State constitutions has revealed that enabling acts for eight States, and in consequence the constitutions of those States, contain express disclaimers of jurisdiction. Included are Arizona, Montana, New Mexico, North Dakota, Oklahoma, South Dakota, Utah, and Washington." H.R.Rep. No. 848, at 6. 26 See n. 35, infra, and accompanying text. 27 The validity of Chapter 36 was first challenged in the federal courts in Quinault Tribe of Indians v. Gallagher, 368 F.2d 648 (C.A.9). In Quinault, the Court of Appeals for the Ninth Circuit held that under § 6 and the Enabling Act the consent of the people to removal of the disclaimer need only be made in some manner "valid and binding under state law." Id., at 657. Relying on the Washington Supreme Court's holding in State v. Paul, 53 Wash.2d 789, 337 P.2d 33, that legislative action would suffice, it concluded that Washington's assumption of jurisdiction was valid. When Chapter 36 was first challenged in the state courts, the Washington Supreme Court reaffirmed its holding in State v. Paul. See Makah Indian Tribe v. State, 76 Wash.2d 485, 457 P.2d 590; Tonasket v. State, 84 Wash.2d 164, 525 P.2d 744. See also n. 16, supra. In Makah, the Court reasoned, as it had in Paul, that the makers of the Washington Constitution intended that for purposes of Art. XXVI "the people would speak through the mouth of the legislature." 76 Wash.2d, at 490, 457 P.2d, at 593. In addition, it relied on Quinault for the proposition that under § 6 the constitutional disclaimer need be removed only by a method binding under state law. In Tonasket, the Washington court reaffirmed this reasoning. It also relied on the alternative ground that the disclaimer in Art. XXVI could be construed not to preclude "criminal and civil regulation" on Indian lands and therefore would not stand as a barrier to state jurisdiction. 84 Wash.2d, at 177, 525 P.2d, at 752. 28 The State asserts as well that the Washington constitutional disclaimer does not pose any substantive barrier to state assumption of jurisdiction over fee and unrestricted lands within the reservation. In light of our holding that Washington has satisfied the procedural requirements for repealing the disclaimer, we need not consider the scope of this state constitutional provision. 29 Disclaimer States have responded in diverse ways to the Pub.L. 280 offer of jurisdiction. See Goldberg, Pub.L. 280: The Limits of State Jurisdiction over Reservation Indians, 22 UCLA L.Rev. 535, 546-548, 567-575 (1975). Only one—North Dakota—has amended its constitution. Art. 16, N.D.Const., amended by Art. 68, June 24, 1958 (1957 N.D.Laws, ch. 403; 1959 N.D.Laws, ch. 430). 30 In Kennerly v. District Court of Montana, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507, we emphasized the need for the responsible jurisdictions to "manifes[t] by political action their willingness and ability to discharge their new responsibilities." Id., at 427, 91 S.Ct., at 482. Kennerly involved an attempt by the State courts of Montana to assert civil jurisdiction over a transaction that occurred within reservation boundaries. The tribe had requested state jurisdiction, but the State had not obligated itself to assume it. The case was litigated on the theory that § 7 was applicable. We held that the State must comply with the § 7 requirement of "affirmative legislative action." 400 U.S., at 427, 91 S.Ct., at 482. Two of our other cases involving Pub.L. 280 also illustrate the need for responsible action under the federal statute. In Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251, we held that the State of Arizona—one of the disclaimer States—could not validly exercise jurisdiction over a civil action brought by a non-Indian against an Indian for a transaction that occurred on the Navaho Reservation. We relied on the traditional principle that a State may not infringe the right of reservation Indians "to make their own laws and be ruled by them" without an express authorization by Congress. Id., at 220, 79 S.Ct., at 270. In Williams, the State had not attempted to comply with § 6: the state court had taken jurisdiction without state statutory or constitutional authorization. A similar situation obtained in McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129. There we held that Arizona could not, by simple legislative enactment, tax income earned by a Navaho from reservation sources. The tax statute at issue was not framed as a measure obligating the State to assume responsibility under Pub.L. 280. 31 There is, for example, nothing in the legislative history of the Enabling Act to indicate that the "consent of the people" could be given only by a process of constitutional amendment. The scant legislative record of the Enabling Act is devoted to a debate over the wisdom of splitting the Dakota Territory into two States and of admitting both immediately to the Union. In none of these debates was there any extended discussion of the Indian land disclaimer or any indication that the "consent of the people" to removal of the disclaimer could not be given by the people's representatives in the legislature. See Adverse Reports of the House Committee on the Territories, May 1886 and Feb. 1888, annexed to H.R.Rep. No. 1025, 50th Cong., 1st Sess., 19-25 (1888). See also, e. g., 19 Cong.Rec. 2804, 2883, 3001, 3117 (1888); 20 Cong.Rec. 801, 869 (1889). The only explicit references to the disclaimer of authority over Indian lands are found in H.R.Rep. No. 1025, supra, at 8-9 (calling attention to fact that by the terms of the bill large Indian reservations in the Dakota Territory "remain within the exclusive control and jurisdiction of the United States") and in 19 Cong.Rec. 2832 (1888) (Oklahoma Delegate objecting to the disclaimer). 32 That policy was formally announced in H.R.Con.Res. 108, 67 Stat. B132, approved on July 27, 1953, the same day that Pub.L. 280 was passed by the House. 99 Cong.Rec. 9968 (1953). As stated in H.R.Con.Res. 108, the policy of Congress was "as rapidly as possible, to make the Indians within the territorial limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States, to end their status as wards of the United States, and to grant them all of the rights and prerogatives pertaining to American citizenship . . . ." This policy reflected a return to the philosophy of the General Allotment Act of 1887, ch. 119, § 1, 24 Stat. 388, as amended, 25 U.S.C. § 331, popularly known as the Dawes Act, a philosophy which had been rejected with the passage of the Indian Reorganization Act of 1934, 48 Stat. 984. In Bryan v. Itasca County, 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710, the Court emphasized that Pub.L. 280 was not a termination measure and should not be construed as such. Our discussion here is not to the contrary. The parties agree that Pub.L. 280 reflected an assimilationist philosophy. That Congress intended to facilitate assimilation when it authorized a transfer of jurisdiction from the Federal Government to the States does not necessarily mean, however, that it intended in Pub.L. 280 to terminate tribal self-government. Indeed, the Tribe has argued that even after the transfer tribal courts retain concurrent jurisdiction in areas in which they formerly shared jurisdiction with the Federal Government. This issue, however, is not within the scope of our order noting probable jurisdiction, see n. 20, supra, and we do not decide it here. 33 These features of Pub.L. 280 have attracted extensive criticism. See generally Goldberg, supra, n. 29. Indeed, the experience of the Yakima Nation is in itself sufficient to demonstrate why the Act has provoked so much criticism. In 1952, in connection with the introduction of bills that proposed a general jurisdictional transfer, see 1952 Hearings, a representative of the Yakimas testified that the Tribe was opposed to the extension of state jurisdiction on the Yakima Reservation. He stated: "They are now under the Federal laws and have their own tribal laws, customs, and regulations. This system is working well and the Yakima Tribe believes that it should be continued and not changed at this time." Id., at 84-85. In 1953, when the Indian Affairs Subcommittee of the House Committee on Indian Affairs considered the final version of Pub.L. 280, the Committee was again aware that the Yakima Nation opposed state jurisdiction. The House Report accompanying H.R. 1063 contains a letter from the Department of the Interior listing the Tribe as among those opposed to "being subjected to State jurisdiction" and having a "tribal law-and-order organization that functions in a reasonably satisfactory manner." H.R.Rep. No. 848, 83d Cong., 1st Sess., 7 (1953). Had Washington been included among the mandatory States, it is thus quite possible that the Yakima Reservation would have been excepted. 34 Similar bills had been introduced in the 82d Congress, and in public hearings held on those the idea of a general transfer was discussed at length. See 1952 Hearings. 35 See unpublished transcript of Hearings on H.R. 1063 before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 83d Cong., 1st Sess. (June 29, 1953), and unpublished transcript of Hearings on H.R. 1063 before the House Committee on Interior and Insular Affairs, 83d Cong., 1st Sess. (July 15, 1953) (hereinafter cited as June 29 Hearings, and July 15 Hearings, respectively.) The transcripts of these hearings were first made available to this Court by the United States during the briefing of Tonasket v. Washington, 411 U.S. 451, 93 S.Ct. 1941, 36 L.Ed.2d 385. They were again supplied in Bryan v. Itasca County, supra, and for this appeal have been reproduced in full in the Appendix to Brief for Appellee. These hearings, along with the House Report on H.R. 1063 as amended, H.R.Rep. No. 848, supra, and the Senate Report, which is virtually identical, S.Rep. No. 699, 83d Cong., 1st Sess. (1953), U.S.Code Cong. & Admin.News 1953, p. 2409, constitute the primary legislative materials on Pub.L. 280. 36 On July 15, Committee counsel presented an amendment which was eventually to become § 6. He explained the effect of the amendment as follows: "[T]he legislation as acted upon by the committee would apply to only five states. The two additional section amendments would apply first to the eight states having constitutional or organic law impediments and would grant consent of the United States for them to remove such impediments and thus to acquire jurisdiction. "The other amendment would apply to any other Indian states . . . who would acquire jurisdiction at such time as the legislative body affirmatively indicated their desire to so assume jurisdiction." July 15 Hearings 4. Immediately after the proposed § 6 was read to the Subcommittee, the Chairman, Congressman D'Ewart, commented: "I do not think we have to grant permission to a state to amend its own statutes." July 15 Hearings 7. Committee counsel replied: "Mr. D'Ewart, I believe the reason for this is that in some instances it is spelled out both in the constitution and the statutory provisions as a result of the Act and it may be unnecessary, but by some state courts it may be interpreted as being necessary." Ibid. The version of § 6 read to the Committee Members by counsel contained no reference to the Enabling Acts but merely granted consent for the States to remove existing impediments to the assertion of jurisdiction over Indians. It was suggested that in order effectively to authorize the States to modify their organic legislation the clause should be more specific. This suggestion resulted in the proposal of the "notwithstanding" clause. The following exchange then took place: "[Committee counsel]: I believe that the clause 'notwithstanding any provisions of the Enabling Act' for such states might well be included. It would make clear that Congress was repealing the Enabling Act. "[Congressman Dawson]: To give permission to amend their constitution. "[Committee counsel]: I think that would help clarify the intent of the committee at the present time and of Congress if they favorably acted on the legislation." Id., at 9. The next day, July 16, the Committee filed its report on the substitute bill. H.R.Rep. No. 848, supra. The Report explains that § 6 would "give consent of the United States to those States presently having organic laws expressly disclaiming jurisdiction to acquire jurisdiction subsequent to enactment by amending or repealing such disclaimer laws." The Committee hearings thus make clear an intention to remove any federal barriers to the assumption of jurisdiction by Enabling Act States. They also make clear that that consent was not to effect an immediate transfer of jurisdiction. 37 See June 29 Hearings 23; July 15 Hearings, 6-11. 38 The House passed the bill without debate on July 27, 1953. 99 Cong.Rec. 9962-9963. In the Senate, the bill was referred to the Committee on Interior and Insular Affairs. Id., at 10065. That Committee held no hearings of its own, and it reported out the bill two days later without amendment. Id., at 10217. The bill received only brief consideration on the Senate floor before it was passed on August 1, 1953. Id., at 10783-10784. 39 The Tribe has intimated that the Washington Supreme Court's holding is incorrect. However, the procedure by which the disclaimer might be removed or repealed—Congress having given its consent—is as we have held a question of state law. 40 Both parties find support for their positions on this issue in the legislative history of the amendments to Pub.L. 280 in Title IV of the Indian Civil Rights Act of 1968, 82 Stat. 73. The 1968 legislation provides that States that have not extended criminal or civil jurisdiction to Indian country can make future extensions only with the consent of the tribes affected. 25 U.S.C. §§ 1321(a), 1322(a). The amendments also provide explicitly for partial assumption of jurisdiction. Ibid. In addition, they authorize the United States to accept retrocessions of jurisdiction, full or partial, from the mandatory and the § 7 States. 25 U.S.C. § 1323(a). Section 7 itself was repealed with the proviso that the repeal was not intended to affect any cession made prior to the repeal. 25 U.S.C. § 1323(b). Section 6 was re-enacted without change. 25 U.S.C. § 1324. We do not rely on the 1968 legislation or its history, finding the latter equivocal, and mindful that the issues in this case are to be determined in accord with legislation enacted by Congress in 1953. 41 Since entire reservations were exempted from coverage in three of the mandatory States, the Tribe and the United States concede that the option States could probably assume jurisdiction on a reservation-by-reservation basis. The United States also concedes that the word "or" in § 7 might be construed to mean that option States need not extend both civil and criminal jurisdiction. 42 See June 2 and July 15 Hearings 9. 43 See ibid. 44 See, e. g., July 15 Hearings 4. 45 The 1968 amendments, which re-enacted § 6 without change as 25 U.S.C. § 1324 but repealed § 7, 25 U.S.C. § 1323(b), and added substantive jurisdictional provisions covering "any State," see 25 U.S.C. §§ 1321, 1322, suggest that in the future the scope of jurisdiction for all States is to be the same. 46 The Court of Appeals did not disturb the finding of the District Court that Chapter 36 had not been applied on the Yakima Reservation to discriminate against the Tribe or any of its members. The District Court found that the governmental legal services available to the Tribe and its members were not significantly different from those offered to other rural and city residents of Yakima County. It also concluded that the distinctions drawn between non-Indians and Indians in the statute were not motivated by a discriminatory purpose. In view of these findings, our inquiry here is limited to the narrow question whether the distinctions drawn in Chapter 36 on their face violate the Equal Protection Clause of the Fourteenth Amendment. 47 The Court of Appeals limited its holding to the land-tenure classification. The Tribe, in support of the judgment, has argued that the Chapter 36 classifications based on the tribal status of the offender and on whether a juvenile is involved are also facially invalid. In our view these status classifications of Chapter 36 are indistinguishable from the interrelated land-tenure classification so far as the Equal Protection Clause is concerned. 48 This is not to hold that Pub.L. 280 was a termination measure. Whether there is concurrent tribal and state jurisdiction on some areas of the Reservation is an issue we do not decide. See n. 32, supra. 1 E. g., Worcester v. Georgia, 6 Pet. 515, 580-582, 8 L.Ed. 483 (1832) (McLean, J., concurring); The Kansas Indians (Wan-zop-e-ah v. Board of Comm'rs of the County of Miami ), 5 Wall. 737, 760, 18 L.Ed. 667 (1867); Jones v. Meehan, 175 U.S. 1, 11-12, 20 S.Ct. 1, 5-6, 44 L.Ed. 49 (1899); Cherokee Intermarriage Cases, 203 U.S. 76, 94, 27 S.Ct. 29, 36, 51 L.Ed. 96 (1906); Choate v. Trapp, 224 U.S. 665, 675, 32 S.Ct. 565, 569, 56 L.Ed. 941 (1912); Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89, 39 S.Ct. 40, 41, 63 L.Ed. 138 (1918); Carpenter v. Shaw, 280 U.S. 363, 366-367, 50 S.Ct. 121, 122, 74 L.Ed. 478 (1930); United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 353-354, 62 S.Ct. 248, 255, 86 L.Ed. 570 (1941); Squire v. Capoeman, 351 U.S. 1, 6-7, 76 S.Ct. 611, 614-615, 100 L.Ed. 883 (1956); Menominee Tribe of Indians v. United States, 391 U.S. 404, 406 n. 2, 88 S.Ct. 1705, 1707, n. 2, 20 L.Ed.2d 697 (1968); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 173-175, and n. 13, 93 S.Ct. 1257, 1262-1263, n. 13, 36 L.Ed.2d 129 (1973); Bryan v. Itasca County, 426 U.S. 373, 392-393, 96 S.Ct. 2102, 2112-2113, 48 L.Ed.2d 710 (1976). 2 Since I would invalidate Washington's jurisdictional arrangement on this ground, I need not address the disclaimer issue. For present purposes I will assume that Washington was not required to amend its constitutional disclaimer of authority over Indian lands before it could exercise power over the Reservation. 3 It may be that the disjunctive language of § 7 allows option States to exercise either criminal or civil jurisdiction. See ante, at 496-497, and n. 41. And perhaps extension of jurisdiction reservation by reservation is also permissible. See ante, at 494 n. 41. But neither of these questions is posed by this case. The issue presented here is whether the language of Pub.L. 280 authorizes any patchwork jurisdictional arrangement that suits the States' peculiar interests. 4 These amendments prohibit States from exercising further jurisdiction over Indian reservations after 1968 without tribal consent. 25 U.S.C. §§ 1321(a), 1322(b), 1326. 5 See Hearings on H.R. 1063 before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 83d Cong., 1st Sess., 8-10, 14-15 (1953) (hereinafter 1953 Subcommittee Hearings); Hearings on H.R. 1063 before the House Committee on Interior and Insular Affairs, 83d Cong., 1st Sess., 3, 7, 13, 17 (1953) (hereinafter 1953 Committee Hearings); H.R.Rep. No. 848, 83d Cong., 1st Sess., 7 (1953). 6 See 1953 Committee Hearings 13; H.R.Rep. No. 848, supra, at 6-7. 7 See, e. g., 1953 Subcommittee Hearings 3, 4, 5, 7, 17; 1953 Committee Hearings 3, 8; 99 Cong.Rec. 10782-10783 (1953) (statement of Sen. Thye; letter from Gov. Anderson to Sen. Thye). 8 See H.R.Rep. No. 848, supra, at 5-6; 1953 Subcommittee Hearings 2-3, 21-22; Hearings on H.R. 459, H.R. 3235 and H.R. 3624 before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 82d Cong., 2d Sess., 14 (1952) (statement of Rep. D'Ewart); Goldberg, Public Law 280: The Limits of State Jurisdiction Over Reservation Indians, 22 UCLA L.Rev. 535, 541-543 (1975). 9 The legislative history of the 1968 amendments provides further evidence that Congress in 1953 did not unambiguously sanction assertion of selective jurisdiction. There were numerous conflicting opinions on whether the new provisions authorizing States to assume partial jurisdiction effected a change in the law. In 1965, the Department of the Interior had intimated that partial assumption of criminal jurisdiction was a novel idea when it recommended partial jurisdiction in civil matters, but concluded that "extension of criminal jurisdiction to the States on a piecemeal basis needs to be considered further." Hearings on Constitutional Rights of the American Indian before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 321 (1965) (letter from Frank J. Barry, Acting Secy. of the Interior, to Sen. Eastland). This letter also noted that the Department of Justice was opposed to selective extensions of criminal jurisdiction because of the likelihood of unnecessary confusion in the enforcement of criminal laws. Ibid. However, in 1968, Assistant Secretary of the Interior Harry R. Anderson believed that authority to assume piecemeal jurisdiction was implicit in Pub.L. 280. Hearings on H.R. 15419 and Related Bills before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 90th Cong., 2d Sess., 25 (1968) (letter to Rep. Wayne N. Aspinall). By contrast, Congressman Aspinall, who played a fundamental role in drafting Pub.L. 280, stated that the new partial-jurisdiction provisions substantially altered prior law. 114 Cong.Rec. 9615 (1968). Similarly, Arthur Lazarus, an attorney representing six Tribes, argued that "[o]ne of the major objections to Public Law 280 is its 'all or nothing' approach, requiring States to assume all jurisdiction on Indian reservations if any jurisdiction is desired." 1968 Hearings, supra, at 116. Deputy Attorney General Warren Christopher was noncommittal on the reading of prior law. Id., at 28 (letter to Rep. Aspinall). This subsequent legislative consideration of the precise issue before us sheds light on the intent of Congress in 1953. See Mattz v. Arnett, 412 U.S. 481, at 505 n. 25, 93 S.Ct. 2245, 2258 n. 25, 37 L.Ed.2d 92 (1973); Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 472-475, 96 S.Ct. 1634, 1640-1642, 48 L.Ed.2d 96 (1976); Bryan v. Itasca County, 426 U.S., at 386, 96 S.Ct., at 2109. Given the congressional and executive equivocation, the Court's apparent certainty is unfounded.

12

58 L.Ed.2d 785 99 S.Ct. 773 439 U.S. 522 THOR POWER TOOL COMPANY, Petitioner,v.COMMISSIONER OF INTERNAL REVENUE. No. 77-920. Argued Nov. 1, 1978. Decided Jan. 16, 1979. Syllabus Inventory accounting for tax purposes is governed by §§ 446 and 471 of the Internal Revenue Code of 1954. Section 446 provides that taxable income is to be computed under the taxpayer's normal method of accounting unless that method "does not clearly reflect income," in which event taxable income is to be computed "under such method as, in the opinion of the [Commissioner], does clearly reflect income." Section 471 provides that "[w]henever in the opinion of the [Commissioner] the use of inventories is necessary in order clearly to determine the income of any taxpayer, inventory shall be taken by such taxpayer on such basis as the [Commissioner] may prescribe as conforming as nearly as may be to the best accounting practice in the trade or business and as most clearly reflecting income." The implementing Regulations require a taxpayer to value inventory for tax purposes at cost unless "market" (defined as replacement cost) is lower. The Regulations specify two situations in which inventory may be valued below "market" as so defined: (1) where the taxpayer in the normal course of business has actually offered merchandise for sale at prices lower than replacement cost; and (2) where the merchandise is defective. In 1964, petitioner, a tool manufacturer, wrote down in accord with "generally accepted accounting principles" what it regarded as "excess" inventory to its own estimate of the "net realizable value" (generally scrap value) of the "excess" goods (mostly spare parts), but continued to hold the goods for sale at their original prices. It offset the write-down against 1964 sales and thereby produced a net operating loss for that year. The Commissioner disallowed the offset, maintaining that the write-down did not reflect income clearly for tax purposes. Deductions for bad debts are covered by § 166. Section 166(c) provides that an accrual-basis taxpayer "shall be allowed (in the discretion of the [Commissioner]) a deduction for a reasonable addition to a reserve for bad debts." In 1965, petitioner added to its reserve and asserted as a deduction under § 166(c) a sum that presupposed a substantially higher charge-off rate for bad debts than it had experienced in immediately preceding years. The Commissioner ruled that the addition was excessive, and determined, pursuant to the "six-year moving average" formula derived from Black Motor Co. v. Commissioner, 41 B.T.A. 300, what he regarded as a lesser but "reasonable" amount to be added to petitioner's reserve. On petitioner's petition for redetermination, the Tax Court upheld the Commissioner's exercise of discretion with respect to both the inventory write-down and the bad-debt deduction, and the Court of Appeals affirmed. Held : 1. The Commissioner did not abuse his discretion in determining that the write-down of "excess" inventory failed to reflect petitioner's 1964 income clearly, since the write-down was plainly inconsistent with the governing Regulations. Pp. 531-546. (a) Although conceding that "an active market prevailed" on the inventory date, petitioner made no effort to determine the replacement cost of its "excess" inventory and thus failed to ascertain "market" in accord with the general rule of the Regulations. Petitioner, however, failed to bring itself within either of the authorized exceptions for valuing inventory below "market." Whereas the Regulations demand concrete evidence of reduced market value, petitioner provided no objective evidence whatever that its "excess" inventory had the value management ascribed to it. Pp. 535-538. (b) There is no presumption that an inventory practice conformable to "generally accepted accounting principles" is valid for tax purposes. Such a presumption is insupportable in light of the statute, this Court's past decisions, and the differing objectives of tax and financial accounting. Pp. 538-544. (c) While petitioner argues that it should not be forced to defer a tax benefit for inventory currently deemed unsalable until future years, when the "excess" items are actually disposed of, petitioner's "dilemma" is nothing more than the choice every taxpayer with a paper loss must face. Pp. 545-546. 2. The Commissioner did not abuse his discretion in recomputing a "reasonable" addition to petitioner's bad-debt reserve according to the Black Motor formula. Because petitioner did not show why its debt collections in 1965 would be less likely than in prior years, it failed to carry its "heavy burden" of showing that application of the Black Motor formula would have been arbitrary. Pp. 546-550. 7th Cir., 563 F.2d 861, affirmed. Mark H. Berens, for petitioner. Stuart A. Smith, Washington, D. C., for respondent. Mr. Justice BLACKMUN delivered the opinion of the Court. 1 This case, as it comes to us, presents two federal income tax issues. One has to do with inventory accounting. The other relates to a bad-debt reserve. 2 The Inventory Issue. In 1964, petitioner Thor Power Tool Co. (hereinafter sometimes referred to as the taxpayer), in accord with "generally accepted accounting principles," wrote down what it regarded as excess inventory to Thor's own estimate of the net realizable value of the excess goods. Despite this write-down, Thor continued to hold the goods for sale at original prices. It offset the write-down against 1964 sales and thereby produced a net operating loss for that year; it then asserted that loss as a carryback to 1963 under § 172 of the Internal Revenue Code of 1954, 26 U.S.C. § 172. The Commissioner of Internal Revenue, maintaining that the write-down did not serve to reflect income clearly for tax purposes, disallowed the offset and the carryback. 3 The Bad-debt Issue. In 1965, the taxpayer added to its reserve for bad debts and asserted as a deduction, under § 166(c) of the Code, 26 U.S.C. § 166(c), a sum that presupposed a substantially higher charge-off rate than Thor had experienced in immediately preceding years. The Commissioner ruled that the addition was excessive, and determined, pursuant to a formula based on the taxpayer's past experience, what he regarded as a lesser but "reasonable" amount to be added to Thor's reserve. 4 On the taxpayer's petition for redetermination, the Tax Court, in an unreviewed decision by Judge Goffe, upheld that Commissioner's exercise of discretion in both respects. 64 T.C. 154 (1975). As a consequence, and also because of other adjustments not at issue here, the court redetermined, App. 264, the following deficiencies in Thor's federal income tax: 5 calendar year 1963—$494,055.99 6 calendar year 1965—$59,287.48 7 The United States Court of Appeals for the Seventh Circuit affirmed. 563 F.2d 861 (1977). We granted certiorari, 435 U.S. 914, 98 S.Ct. 1466, 55 L.Ed.2d 504 (1978), to consider these important and recurring income tax accounting issues. 8 * The Inventory Issue A. 9 Taxpayer is a Delaware corporation with principal place of business in Illinois. It manufactures hand-held power tools, parts and accessories, and rubber products. At its various plants and service branches, Thor maintains inventories of raw materials, work-in-process, finished parts and accessories, and completed tools. At all times relevant, Thor has used, both for financial accounting and for income tax purposes, the "lower of cost or market" method of valuing inventories. App. 23-24. See Treas.Reg. § 1.471-2(c), 26 CFR § 1.471-2(c) (1978). 10 Thor's tools typically contain from 50 to 200 parts, each of which taxpayer stocks to meet demand for replacements. Because of the difficulty, at the time of manufacture, of predicting the future demand for various parts, taxpayer produced liberal quantities of each part to avoid subsequent production runs. Additional runs entail costly retooling and result in delays in filling orders. App. 54-55. 11 In 1960, Thor instituted a procedure for writing down the inventory value of replacement parts and accessories for tool models it no longer produced. It created an inventory contra-account and credited that account with 10% of each part's cost for each year since production of the parent model had ceased. 64 T.C., at 156-157; App. 24. The effect of the procedure was to amortize the cost of these parts over a 10-year period. For the first nine months of 1964, this produced a write-down of $22,090. 64 T.C., at 157; App. 24. 12 In late 1964, new management took control and promptly concluded that Thor's inventory in general was overvalued.1 After "a physical inventory taken at all locations" of the tool and rubber divisions, id., at 52, management wrote off approximately $2.75 million of obsolete parts, damaged or defective tools, demonstration or sales samples, and similar items. Id., at 52-53. The Commissioner allowed this writeoff because Thor scrapped most of the articles shortly after their removal from the 1964 closing inventory.2 Management also wrote down $245,000 of parts stocked for three unsuccessful products. Id., at 56. The Commissioner allowed this write-down too, since Thor sold these items at reduced prices shortly after the close of 1964. Id., at 62. 13 This left some 44,000 assorted items, the status of which is the inventory issue here. Management concluded that many of these articles, mostly spare parts,3 were "excess" inventory, that is, that they were held in excess of any reasonably foreseeable future demand. It was decided that this inventory should be written down to its "net realizable value," which, in most cases, was scrap value. 64 T.C., at 160-161; Brief for Petitioner 9; Tr. of Oral Arg. 11. 14 Two methods were used to ascertain the quantity of excess inventory. Where accurate data were available, Thor forecast future demand for each item on the basis of actual 1964 usage, that is, actual sales for tools and service parts, and actual usage for raw materials, work-in-process, and production parts. Management assumed that future demand for each item would be the same as it was in 1964. Thor then applied the following aging schedule: the quantity of each item corresponding to less than one year's estimated demand was kept at cost; the quantity of each item in excess of two years' estimated demand was written off entirely; and the quantity of each item corresponding to from one to two years' estimated demand was written down by 50% or 75%. App. 26.4 Thor presented no statistical evidence to rationalize these percentages or this time frame. In the Tax Court, Thor's president justified the formula by citing general business experience, and opined that it was "somewhat in between" possible alternative solutions.5 This first method yielded a total write-down of $744,030. 64 T.C., at 160. 15 At two plants where 1964 data were inadequate to permit forecasts of future demand, Thor used its second method for valuing inventories. At these plants, the company employed flat percentage write-downs of 5%, 10% and 50% for various types of inventory.6 Thor presented no sales or other data to support these percentages. Its president observed that "this is not a precise way of doing it," but said that the company "felt some adjustment of this nature was in order, and these figures represented our best estimate of what was required to reduce the inventory to net realizable value." App. 67. This second method yielded a total write-down of $160,832. 64 T.C., at 160. 16 Although Thor wrote down all its "excess" inventory at once, it did not immediately scrap the articles or sell them at reduced prices, as it had done with the $3 million of obsolete and damaged inventory, the write-down of which the Commissioner permitted. Rather, Thor retained the "excess" items physically in inventory and continued to sell them at original prices. Id., at 160-161. The company found that, owing to the peculiar nature of the articles involved,7 price reductions were of no avail in moving this "excess" inventory. As time went on, however, Thor gradually disposed of some of these items as scrap; the record is unclear as to when these dispositions took place.8 17 Thor's total write-down of "excess" inventory in 1964 therefore was: Ten-year amortization of parts for 18 discontinued tools $22,090 First method (aging formula based 19 on 1964 usage) 744,030 Second method (flat percentage 20 write-downs) 160,832 Total $926,952 Thor credited this sum to its inventory contra-account, thereby decreasing closing inventory, increasing cost of goods sold, and decreasing taxable income for the year by that amount.9 The company contended that, by writing down excess inventory to scrap value, and by thus carrying all inventory at "net realizable value," it had reduced its inventory to "market" in accord with its "lower of cost or market" method of accounting. On audit, the Commissioner disallowed the write-down in its entirety, asserting that it did not serve clearly to reflect Thor's 1964 income for tax purposes. The Tax Court, in upholding the Commissioner's determination, found as a fact that Thor's write-down of excess inventory did conform to "generally accepted accounting principles"; indeed, the court was "thoroughly convinced . . . that such was the case." Id., at 165. The court found that if Thor had failed to write down its inventory on some reasonable basis, its accountants would have been unable to give its financial statements the desired certification. Id., at 161-162. The court held, however, that conformance with "generally accepted accounting principles" is not enough; § 446(b), and § 471 as well, of the 1954 Code, 26 U.S.C. §§ 446(b) and 471, prescribe, as an independent requirement, that inventory accounting methods must "clearly reflect income." The Tax Court rejected Thor's argument that its write-down of "excess" inventory was authorized by Treasury Regulations, 64 T.C., at 167-171, and held that the Commissioner had not abused his discretion in determining that the write-down failed to reflect 1964 income clearly. B Inventory accounting is governed by §§ 446 and 471 of the Code, 26 U.S.C. §§ 446 and 471. Section 446(a) states the general rule for methods of accounting: "Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books." Section 446(b) provides, however, that if the method used by the taxpayer "does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the [Commissioner], does clearly reflect income." Regulations promulgated under § 446 and in effect for the taxable year 1964, state that "no method of accounting is acceptable unless, in the opinion of the Commissioner, it clearly reflects income." Treas. Reg. § 1.446-1(a)(2), 26 CFR § 1.446-1(a)(2) (1964).10 Section 471 prescribes the general rule for inventories. It states: "Whenever in the opinion of the [Commissioner] the use of inventories is necessary in order clearly to determine the income of any taxpayer, inventories shall be taken by such taxpayer on such basis as the [Commissioner] may prescribe as conforming as nearly as may be to the best accounting practice in the trade or business and as most clearly reflecting the income." As the Regulations point out, § 471 obviously establishes two distinct tests to which an inventory must conform. First, it must conform "as nearly as may be" to the "best accounting practice," a phrase that is synonymous with "generally accepted accounting principles." Second, it "must clearly reflect the income." Treas. Reg. § 1.471-2(a)(2), 26 CFR § 1.471-2(a)(2) (1964). It is obvious that on their face, §§ 446 and 471, with their accompanying Regulations, vest the Commissioner with wide discretion in determining whether a particular method of inventory accounting should be disallowed as not clearly reflective of income. This Court's cases confirm the breadth of this discretion. In construing § 446 and its predecessors, the Court has held that "[t]he Commissioner has broad powers in determining whether accounting methods used by a taxpayer clearly reflect income." Commissioner of Internal Revenue v. Hansen, 360 U.S. 446, 467, 79 S.Ct. 1270, 1282, 3 L.Ed.2d 1360 (1959). Since the Commissioner has "[m]uch latitude for discretion," his interpretation of the statute's clear-reflection standard "should not be interfered with unless clearly unlawful." Lucas v. American Code Co., 280 U.S. 445, 449, 50 S.Ct. 202, 203, 74 L.Ed. 538 (1930). To the same effect are United States v. Catto, 384 U.S. 102, 114, 86 S.Ct. 1311, 1317, 16 L.Ed.2d 398 (1966); Schlude v. Commissioner of Internal Revenue, 372 U.S. 128, 133-134, 83 S.Ct. 601, 604, 9 L.Ed.2d 633 (1963); American Automobile Assn. v. United States, 367 U.S. 687, 697-698, 81 S.Ct. 1727, 1732, 6 L.Ed.2d 1109 (1961); Automobile Club of Michigan v. Commissioner of Internal Revenue, 353 U.S. 180, 189-190, 77 S.Ct. 707, 712-713, 1 L.Ed.2d 746 (1957); Brown v. Helvering, 291 U.S. 193, 203, 54 S.Ct. 356, 360, 78 L.Ed. 725 (1934). In construing § 203 of the Revenue Act of 1918, 40 Stat. 1060, a predecessor of § 471, the Court held that the taxpayer bears a "heavy burden of [proof]," and that the Commissioner's disallowance of an inventory accounting method is not to be set aside unless shown to be "plainly arbitrary." Lucas v. Structural Steel Co., 281 U.S. 264, 271, 50 S.Ct. 263, 266, 74 L.Ed. 848 (1930). As has been noted, the Tax Court found as a fact in this case that Thor's write-down of "excess" inventory conformed to "generally accepted accounting principles" and was "within the term, 'best accounting practice,' as that term is used in section 471 of the Code and the regulations promulgated under that section." 64 T.C., at 161, 165. Since the Commissioner has not challenged this finding, there is no dispute that Thor satisfied the first part of § 471's two-pronged test. The only question, then, is whether the Commissioner abused his discretion in determining that the write-down did not satisfy the test's second prong in that it failed to reflect Thor's 1964 income clearly. Although the Commissioner's discretion is not unbridled and may not be arbitrary we sustain his exercise of discretion here, for in this case the write-down was plainly inconsistent with the governing Regulations which the taxpayer, on its part, has not challenged.11 It has been noted above that Thor at all pertinent times used the "lower of cost or market" method of inventory accounting. The rules governing this method are set out in Treas. Reg. § 1.471-4, 26 CFR § 1.471-4 (1964). That Regulation defines "market" to mean, ordinarily, "the current bid price prevailing at the date of the inventory for the particular merchandise in the volume in which usually purchased by the taxpayer." § 1.471-4(a). The courts have uniformly interpreted "bid price" to mean replacement cost, that is, the price the taxpayer would have to pay on the open market to purchase or reproduce the inventory items.12 Where no open market exists, the Regulations require the taxpayer to ascertain "bid price" by using "such evidence of a fair market price at the date or dates nearest the inventory as may be available, such as specific purchasers or sales by the taxpayer or others in reasonable volume and made in good faith, or compensation paid for cancellation of contracts for purchase commitments." § 1.471-4(b). The Regulations specify two situations in which a taxpayer is permitted to value inventory below "market" as so defined. The first is where the taxpayer in the normal course of business has actually offered merchandise for sale at prices lower than replacement cost. Inventories of such merchandise may be valued at those prices less direct cost of disposition, "and the correctness of such prices will be determined by reference to the actual sales of the taxpayer for a reasonable period before and after the date of the inventory." Ibid. The Regulations warn that prices "which vary materially from the actual prices so ascertained will not be accepted as reflecting the market." Ibid. The second situation in which a taxpayer may value inventory below replacement cost is where the merchandise itself is defective. If goods are "unsalable at normal prices or unusable in the normal way because of damage, imperfections, shop wear, changes of style, odd or broken lots, or other similar causes," the taxpayer is permitted to value the goods "at bona fide selling prices less direct cost of disposition." § 1.471-2(c). The Regulations define "bona fide selling price" to mean an "actual offering of goods during a period ending not later than 30 days after inventory date." Ibid. The taxpayer bears the burden of proving that "such exceptional goods as are valued upon such selling basis come within the classifications indicated," and is required to "maintain such records of the disposition of the goods as will enable a verification of the inventory to be made." Ibid. From this language, the regulatory scheme is clear. The taxpayer must value inventory for tax purposes at cost unless the "market" is lower. "Market" is defined as "replacement cost," and the taxpayer is permitted to depart from replacement cost only in specified situations. When it makes any such departure, the taxpayer must substantiate its lower inventory valuation by providing evidence of actual offerings, actual sales, or actual contract cancellations. In the absence of objective evidence of this kind, a taxpayer's assertions as to the "market value" of its inventory are not cognizable in computing its income tax. It is clear to us that Thor's procedures for writing down the value of its "excess" inventory were inconsistent with this regulatory scheme. Although Thor conceded that "an active market prevailed" on the inventory date, see 64 T.C., at 169, it "made no effort to determine the purchase or reproduction cost" of its "excess" inventory. Id., at 162. Thor thus failed to ascertain "market" in accord with the general rule of the Regulations. In seeking to depart from replacement cost, Thor failed to bring itself within either of the authorized exceptions. Thor is not able to take advantage of § 1.471-4(b) since, as the Tax Court found, the company failed to sell its excess inventory or offer it for sale at prices below replacement cost. 64 T.C., at 160-161. Indeed, Thor concedes that it continued to sell its "excess" inventory at original prices. Thor also is not able to take advantage of § 1.471-2(c) since, as the Tax Court and the Court of Appeals both held, it failed to bear the burden of proving that its excess inventory came within the specified classifications. 64 T.C., at 171; 563 F.2d, at 867. Actually, Thor's "excess" inventory was normal and unexceptional, and was indistinguishable from and intermingled with the inventory that was not written down. More importantly, Thor failed to provide any objective evidence whatever that the "excess" inventory had the "market value" management ascribed to it. The Regulations demand hard evidence of actual sales and further demand that records of actual dispositions be kept. The Tax Court found, however, that Thor made no sales and kept no records. 64 T.C., at 171. Thor's management simply wrote down its closing inventory on the basis of a well-educated guess that some of it would never be sold. The formulae governing this write-down were derived from management's collective "business experience"; the percentages contained in those formulae seemingly were chosen for no reason other than that they were multiples of five and embodied some kind of anagogical symmetry. The Regulations do not permit this kind of evidence. If a taxpayer could write down its inventories on the basis of management's subjective estimates of the goods' ultimate salability, the taxpayer would be able, as the Tax Court observed, id., at 170, "to determine how much tax it wanted to pay for a given year."13 For these reasons, we agree with the Tax Court and with the Seventh Circuit that the Commissioner acted within his discretion in deciding that Thor's write-down of "excess" inventory failed to reflect income clearly. In the light of the well-known potential for tax avoidance that is inherent in inventory accounting,14 the Commissioner in his discretion may insist on a high evidentiary standard before allowing write-downs of inventory to "market." Because Thor provided no objective evidence of the reduced market value of its "excess" inventory, its write-down was plainly inconsistent with the Regulations, and the Commissioner properly disallowed it.15 C The taxpayer's major argument against this conclusion is based on the Tax Court's clear finding that the write-down conformed to "generally accepted accounting principles." Thor points to language in Treas. Reg. § 1.446-1(a)(2), 26 CFR § 1.446-1(a)(2) (1964), to the effect that "[a] method of accounting which reflects the consistent application of generally accepted accounting principles . . . will ordinarily be regarded as clearly reflecting income" (emphasis added). Section 1.471-2(b), 26 CFR § 1.471-2(b) (1964), of the Regulations likewise stated that an inventory taken in conformity with best accounting practice "can, as a general rule, be regarded as clearly reflecting . . . income" (emphasis added).16 These provisions, Thor contends, created a presumption that an inventory practice conformable to "generally accepted accounting principles" is valid for income tax purposes. Once a taxpayer has established this conformity, the argument runs, the burden shifts to the Commissioner affirmatively to demonstrate that the taxpayer's method does not reflect income clearly. Unless the Commissioner can show that a generally accepted method "demonstrably distorts income," Brief for Chamber of Commerce of the United States as Amicus Curiae 3, or that the taxpayer's adoption of such method was "motivated by tax avoidance," Brief for Petitioner 25, the presumption in the taxpayer's favor will carry the day. The Commissioner, Thor concludes, failed to rebut that presumption here. If the Code and Regulations did embody the presumption petitioner postulates, it would be of little use to the taxpayer in this case. As we have noted, Thor's write-down of "excess" inventory was inconsistent with the Regulations; any general presumption obviously must yield in the face of such particular inconsistency. We believe, however, that no such presumption is present. Its existence is insupportable in light of the statute, the Court's past decisions, and the differing objectives of tax and financial accounting. First, as has been stated above, the Code and Regulations establish two distinct tests to which an inventory must conform. The Code and Regulations, moreover, leave little doubt as to which test is paramount. While § 471 of the Code requires only that an accounting practice conform "as nearly as may be" to best accounting practice, § 1.446-1(a)(2) of the Regulations states categorically that "no method of accounting is acceptable unless, in the opinion of the Commissioner, it clear reflects income" (emphasis added). Most importantly, the Code and Regulations give the Commissioner broad discretion to set aside the taxpayer's method if, "in [his] opinion," it does not reflect income clearly. This language is completely at odds with the notion of a "presumption" in the taxpayer's favor. The Regulations embody no presumption; they say merely that, in most cases, generally accepted accounting practices will pass muster for tax purposes. And in most cases they will. But if the Commissioner, in the exercise of his discretion, determines that they do not, he may prescribe a different practice without having to rebut any presumption running against the Treasury. Second, the presumption petitioner postulates finds no support in this Court's prior decisions. It was early noted that the general rule specifying use of the taxpayer's method of accounting "is expressly limited to cases where the Commissioner believes that the accounts clearly reflect the net income." Lucas v. American Code Co., 280 U.S., at 449, 50 S.Ct., at 203. More recently, it was held in American Automobile Assn. v. United States, that a taxpayer must recognize prepaid income when received, even though this would mismatch expenses and revenues in contravention of "generally accepted commercial accounting principles." 367 U.S., at 690, 81 S.Ct., at 1730. "[T]o say that in performing the function of business accounting the method employed by the Association 'is in accord with generally accepted commercial accounting principles and practices,' " the Court concluded, "is not to hold that for income tax purposes it so clearly reflects income as to be binding on the Treasury." Id., at 693, 81 S.Ct., at 1730. "[W]e are mindful that the characterization of a transaction for financial accounting purposes, on the one hand, and for tax purposes, on the other, need not necessarily be the same." Frank Lyon Co. v. United States, 435 U.S. 561, 577, 98 S.Ct. 1291, 1300, 55 L.Ed.2d 550 (1978). See Commissioner of Internal Revenue v. Idaho Power Co., 418 U.S. 1, 15, 94 S.Ct. 2757, 2765, 41 L.Ed.2d 535 (1974). Indeed, the Court's cases demonstrate that divergence between tax and financial accounting is especially common when a taxpayer seeks a current deduction for estimated future expenses or losses. E. g., Commissioner of Internal Revenue v. Hansen, 360 U.S. 446, 79 S.Ct. 1270, 3 L.Ed.2d 1360 (1959) (reserve to cover contingent liability in event of nonperformance of guarantee); Brown v. Helvering, 291 U.S. 193, 54 S.Ct. 356, 78 L.Ed. 725 (1934) (reserve to cover expected liability for unearned commissions on anticipated insurance policy cancellations); Lucas v. American Code Co., supra (reserve to cover expected liability on contested lawsuit). The rationale of these cases amply encompasses Thor's aim. By its president's concession, the company's write-down of "excess" inventory was founded on the belief that many of the articles inevitably would become useless due to breakage, technological change, fluctuations in market demand, and the like.17 Thor, in other words, sought a current "deduction" for an estimated future loss. Under the decided cases, a taxpayer so circumstanced finds no shelter beneath an accountancy presumption. Third, the presumption petitioner postulates is insupportable in light of the vastly different objectives that financial and tax accounting have. The primary goal of financial accounting is to provide useful information to management, shareholders, creditors, and others properly interested; the major responsibility of the accountant is to protect these parties from being misled. The primary goal of the income tax system, in contrast, is the equitable collection of revenue; the major responsibility of the Internal Revenue Service is to protect the public fisc. Consistently with its goals and responsibilities, financial accounting has as its foundation the principle of conservatism, with its corollary that "possible errors in measurement [should] be in the direction of understatement rather than overstatement of net income and net assets."18 In view of the Treasury's markedly different goals and responsibilities understatement of income is not destined to be its guiding light. Given this diversity, even contrariety, of objectives, any presumptive equivalency between tax and financial accounting would be unacceptable.19 This difference in objectives is mirrored in numerous differences of treatment. Where the tax law requires that a deduction be deferred until "all the events" have occurred that will make it fixed and certain, United States v. Anderson, 269 U.S. 422, 441, 46 S.Ct. 131, 134, 70 L.Ed. 347 (1926), accounting principles typically require that a liability be accrued as soon as it can reasonably be estimated.20 Conversely, where the tax law requires that income be recognized currently under "claim of right," "ability to pay," and "control" rationales, accounting principles may defer accrual until a later year so that revenues and expenses may be better matched.21 Financial accounting, in short, is hospitable to estimates, probabilities, and reasonable certainties; the tax law, with its mandate to preserve the revenue, can give no quarter to uncertainty. This is as it should be. Reasonable estimates may be useful, even essential, in giving shareholders and creditors an accurate picture of a firm's overall financial health; but the accountant's conservatism cannot bind the Commissioner in his efforts to collect taxes. "Only a few reserves voluntarily established as a matter of conservative accounting," Mr. Justice Brandeis wrote for the Court, "are authorized by the Revenue Acts." Brown v. Helvering, 291 U.S., at 201-202, 54 S.Ct., at 360. Finally, a presumptive equivalency between tax and financial accounting would create insurmountable difficulties of tax administration. Accountants long have recognized that "generally accepted accounting principles" are far from being a canonical set of rules that will ensure identical accounting treatment of identical transactions.22 "Generally accepted accounting principles," rather, tolerate a range of "reasonable" treatments, leaving the choice among alternatives to management. Such, indeed, is precisely the case here.23 Variances of this sort may be tolerable in financial reporting, but they are questionable in a tax system designed to ensure as far as possible that similarly situated taxpayers pay the same tax. If management's election among "acceptable" options were dispositive for tax purposes, a firm, indeed, could decide unilaterally—within limits dictated only by its accountants—the tax it wished to pay. Such unilateral decisions would not just make the Code inequitable; they would make it unenforceable. D Thor complains that a decision adverse to it poses a dilemma. According to the taxpayer, it would be virtually impossible for it to offer objective evidence of its "excess" inventory's lower value, since the goods cannot be sold at reduced prices; even if they could be sold, says Thor, their reduced-price sale would just "pull the rug out" from under the identical "non-excess" inventory Thor is trying to sell simultaneously. The only way Thor could establish the inventory's value by a "closed transaction" would be to scrap the articles at once. Yet immediate scrapping would be undesirable for demand for the parts ultimately might prove greater than anticipated. The taxpayer thus sees itself presented with "an unattractive Hobson's choice: either the unsalable inventory must be carried for years at its cost instead of net realizable value, thereby overstating taxable income by such overvaluation until it is scrapped, or the excess inventory must be scrapped prematurely to the detriment of the manufacturer and its customers." Brief for Petitioner 25. If this is indeed the dilemma that confronts Thor, it is in reality the same choice that every taxpayer who has a paper loss must face. It can realize its loss now and garner its tax benefit, or it can defer realization, and its deduction, hoping for better luck later. Thor, quite simply, has suffered no present loss. It deliberately manufactured its "excess" spare parts because it judged that the marginal cost of unsalable inventory would be lower than the cost of retooling machinery should demand surpass expectations. This was a rational business judgment and, not unpredictably, Thor now has inventory it believes it cannot sell. Thor, of course, is not so confident of its prediction as to be willing to scrap the "excess" parts now; it wants to keep them on hand, just in case. This, too, is a rational judgment, but there is no reason why the Treasury should subsidize Thor's hedging of its bets. There is also no reason why Thor should be entitled, for tax purposes, to have its cake and to eat it too. II The Bad-debt Issue A. Deductions for bad debts are covered by § 166 of the 1954 Code, 26 U.S.C. § 166. Section 166(a)(1) sets forth the general rule that a deduction is allowed for "any debt which becomes worthless within the taxable year." Alternatively, the Code permits an accrual-basis taxpayer to account for bad debts by the reserve method. This is implemented by § 166(c), which states that "[i]n lieu of any deduction under subsection (a), there shall be allowed (in the discretion of the [Commissioner]) a deduction for a reasonable addition to a reserve for bad debts." A "reasonable" addition is the amount necessary to bring the reserve balance up to the level that can be expected to cover losses properly anticipated on debts outstanding at the end of the tax year. At all times pertinent, Thor has used the reserve method. Its reserve at the beginning of 1965 was approximately $93,000. See 64 T.C., at 162. During 1965, Thor's new management undertook a stringent review of accounts receivable. In the company's rubber division, credit personnel studied all accounts; a 100% reserve was set up for two accounts deemed wholly uncollectible, and a 1% reserve was established for all other receivables. Ibid. In the tool division, credit clerks analyzed all accounts more than 90 days past due with balances over $100; a 100% reserve was established for accounts judged wholly uncollectible, and an identical collectibility ratio was applied to accounts under $100 of the same age. A flat 2% reserve was set up for accounts more than 30 days past due, and a 1% reserve for all other accounts. Id., at 162-163. These judgments, approved by three levels of management, indicated that $136,150 should be added to the bad-debt reserve, bringing its balance at year-end to a figure slightly below $229,000. Id., at 162. Thor claimed this $136,150 as a deduction under § 166(c). The Commissioner ruled that the deduction was excessive. He computed what he believed to be a "reasonable" addition to Thor's reserve by using the "six-year moving average" formula derived from the decision in Black Motor Co. v. Commissioner, 41 B.T.A. 300 (1940), aff'd on other grounds, 125 F.2d 977 (CA6 1942). This formula seeks to ascertain a "reasonable" addition to a bad-debt reserve in light of the taxpayer's recent chargeoff history.24 In this case, the formula indicated that, for the years 1960-1965, Thor's annual chargeoffs of bad debts amounted, on the average, to 3.128% of its year-end receivables. 64 T.C., at 163. Applying that percentage to Thor's 1965 year-end receivables, the Commissioner determined that $154,156.80 of accounts receivable could reasonably be expected to default. The amount required to bring Thor's reserve up to this level was $61,359.20, and the Commissioner decided that this was a "reasonable" addition. Accordingly, he disallowed the remaining $74,790.80 of Thor's claimed § 166(c) deduction. Both the Tax Court, 64 T.C., at 174-175, and the Seventh Circuit, 563 F.2d, at 870, held that the Commissioner had not abused his discretion in so ruling. B Section 166(c) states that a deduction for an addition to a bad-debt reserve is to be allowed "in the discretion" of the Commissioner. Consistently with this statutory language, the courts uniformly have held that the Commissioner's determination of a "reasonable" (and hence deductible) addition must be sustained unless the taxpayer proves that the Commissioner abused his discretion.25 The taxpayer is said to bear a "heavy burden" in this respect.26 He must show not only that his own computation is reasonable but also that the Commissioner's computation is unreasonable and arbitrary.27 Since it first received the approval of the Tax Court in 1940, the Black Motor bad-debt formula has enjoyed the favor of all three branches of the Federal Government. The formula has been employed consistently by the Commissioner,28 approved by the courts,29 and collaterally recognized by the Congress.30 Thor faults the Black Motor formula because of its retrospectivity: By ascertaining current additions to a reserve by reference to past chargeoff experience, the formula assertedly penalizes taxpayers who have delayed in making writeoffs in the past, or whose receivables have just recently begun to deteriorate. Petitioner's objection is not altogether irrational, but it falls short of rendering the formula arbitrary. Common sense suggests that a firm's recent credit experience offers a reasonable index of the credit problems it may suffer currently. And the formula possesses the not inconsiderable advantage of enhancing certainty and predictability in an area peculiarly susceptible of taxpayer abuse. In any event, after its 40 years of near-universal acceptance, we are not inclined to disturb the Black Motor formula now. Granting that Black Motor in principle is valid, then, the only question is whether the Commissioner abused his discretion in invoking the formula in this case. Of course, there will be cases indeed, the Commissioner has acknowledged that there are cases, see Rev.Rul. 76-362, 1976-2 Cum.Bull. 45, 46—in which the formula will generate an arbitrary result. If a taxpayer's most recent bad-debt experience is unrepresentative for some reason, a formula using that experience as data cannot be expected to produce a "reasonable" addition for the current year.31 If the taxpayer suffers an extraordinary credit reversal (the bankruptcy of a major customer, for example), the "six-year moving average" formula will fail.32 In such a case, where the taxpayer can point to conditions that will cause future debt collections to be less likely than in the past, the taxpayer is entitled to—and the Commissioner is prepared to allow—an addition larger than Black Motor would call for. See Rev.Rul. 76-362, supra. In this case, however, as the Tax Court found, Thor "did not show that conditions at the end of 1965 would cause collection of accounts receivable to be less likely than in prior years." 64 T.C., at 175. Indeed, the Tax Court "infer[red] from the entire record that collectibility was probably more likely at the end of 1965 than it was [previously] because new management had been infused into petitioner" (emphasis added). Thor cited no changes in the conditions of business generally or of its customers specifically that would render the Black Motor formula unreliable; new management just came in and second-guessed its predecessor, taking a "tougher" approach. Management's pessimism may not have been unreasonable, but the Commissioner had the discretion to take a more sanguine view.33 For these reasons, we agree with the Tax Court and with the Court of Appeals that the Commissioner did not abuse his discretion in recomputing a "reasonable" addition to Thor's bad-debt reserve according to the Black Motor formula. Thor failed to carry its "heavy burden" of showing why the application of that formula would have been arbitrary in this case. The judgment of the Court of Appeals is affirmed. It is so ordered. 1 In August 1964, Stewart-Warner Corp., Thor's principal shareholder (owning approximately 20% of petitioner's outstanding common shares), agreed with Thor to purchase substantially all of Thor's assets. Its ensuing examination and audit led Stewart-Warner to conclude that petitioner's assets were substantially overstated and its liabilities understated. The purchase agreement then was rescinded and Stewart-Warner agreed, instead, to provide management assistance to Thor. 2 Both in his brief, Brief for Respondent 6, 17, 30-31, and at oral argument, Tr. of Oral Arg. 24-25, the Commissioner has maintained that the reason for the allowance of Thor's $2.75 million writeoff was that the items were scrapped soon after they were written off. The Court of Appeals accepted this explanation. 563 F.2d 861, 864 (1977). Thor challenges its factual predicate, and asserts that 40% of the obsolete parts in fact remained unscrapped as late as the end of 1967. Reply Brief for Petitioner 8. The record does not enable us to resolve this factual dispute; in any event, we must accept the Commissioner's explanation at face value. 3 The inventory items broke down as follows: Raw materials 4,297 Work-in-process 1,781 Finished parts and accessories 33,670 Finished tools 4,344 Total number of inventory items 44,092 64 T.C. 154, 158 (1955). 4 The operation of Thor's aging formula is well illustrated by a chart set forth in the opinion of the Tax Court. Id., at 159. The chart assumes that 100 units of each of five hypothetical items were on hand at the end of 1964, but that the number of units sold or used in that year varied from 20-100: ANTICIPATED DEMAND Units on Units sold Percent of hand at or used 0-12 13-18 19-24 + 24 write- Item 12-31-64 in 1964 Months Months Months Months down A 100 20 20 10 10 60 0% 50% 75% 100% ------ ------ ------ ------ 0 5 7.5 60 =72.5 B 100 40 40 20 20 20 0% 50% 75% 100% ------- ------- ------ ------ 0 10 15 20 = 45.0 C 100 60 60 30 10 0 0% 50% 75% 100% ------- ------- ------- ------- 0 10 0 0 = 22.5 D 100 100 80 20 0 0 0% 50% 75% 100% ------- ------- ------- ------- 0 10 0 0 =10.0 E 100 100 100 0 0 0 0% 50% 75% 100% ------ ------ ------ ------ 0 0 0 0 =0.0 5 "So here is where I fell back on my experience of 20 years in manufacturing of trying to determine a reasonable basis for evaluating this inventory in my previous association. We had generally written off inventory that was in excess of one year. In this case, we felt that that would be overly conservative, and it might understate the value of the inventory. On the other hand, we felt that two years . . . would be too optimistic and that we would overvalue the inventory [in view of] the factors which affect inventory, such as technological change, market changes, and the like, that two years, in our opinion, was too long a period of time. "So what we did is we came up with a formula which was somewhat in between . . . writing off, say, everything over one year as compared to writing everything [off] over two years, and we came up with this formula that has been referred to in this Court today." App. 57. 6 This write-down was formulated as follows: Write-down Write-down Type of Inventory Percentage Amount (1) tool parts and motor parts at plant A 5 $26,341 (2) raw materials, work- in-process, and finished goods at plants A and B 10 99,954 (3) hardware items at plant A 50 34,537 $160,832 64 T.C., at 159-160; App. 209. 7 The Tax Court found that the finished tools were too specialized to attract bargain hunters; that no one would buy spare parts, regardless of price, unless they were needed to fix broken tools; that work-in-process had no value except as scrap; and that other manufacturers would not buy raw materials in the secondary market. 64 T. C., at 160-161. 8 It appears that 78% of the "excess" inventory at two of Thor's plants was scrapped between 1965-1971. Id., at 161; App. 218. 9 For a manufacturing concern like Thor, Gross Profit basically equals Sales minus Cost of Goods Sold. Cost of Goods Sold equals Opening Inventory, plus Cost of Inventory Acquired, minus Closing Inventory. A reduction of Closing Inventory, therefore, increases Cost of Goods Sold and decreases Gross Profit accordingly. 10 The Regulations define "method of accounting" to include "not only the over-all method of accounting of the taxpayer but also the accounting treatment of any item. Treas. Reg. § 1.446-(a)(1), 26 CFR § 1.446-1(a)(1) (1964). 11 See 64 T.C., at 166; Tr. of Oral Arg. 17-19. Even if Thor had made a timely challenge to the Regulations, it is well established, of course, that they still " 'must be sustained unreasonable and plainly inconsistent with the revenue statutes,' and 'should not be overruled except for weighty reasons.' " Bingler v. Johnson, 394 U.S. 741, 750, 89 S.Ct. 1439, 1445, 22 L.Ed.2d 695 (1969), quoting Commissioner of Internal Revenue v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 698, 92 L.Ed. 831 (1948). As an alternative to his argument that Thor's write-down was inconsistent with the Regulations, the Commissioner argues that he was justified in disallowing the write-down in any event because it constituted a "change of accounting method," for which Thor failed to obtain the Commissioner's prior consent, as required by § 446(e), 26 U.S.C. § 446(e). The Regulations define a change of accounting method to include "a change in the treatment of a material item." Treas. Reg. § 1.446-1(e)(2)(i), 26 CFR § 1.446-1(e)(2)(i) (1964). In view of our disposition of the case, we need not reach this alternative contention. 12 E. g., D. Loveman & Son Export Corp. v. Commissioner, 34 T.C. 776, 796 (1960), aff'd, 296 F.2d 732 (CA6 1961), cert. denied 369 U.S. 860, 82 S.Ct. 950, 8 L.Ed.2d 18 (1962). See Schnelwar & Jurgensen, The New Inventory Regulations in Operation and Other Inventory Valuation Considerations, 33 N.Y.U.Inst. on Fed.Tax. 1077, 1093-1094 (1975); AICPA Accounting Principles Board, Accounting Research Bulletin No. 43, ch. 4, Statement 6 (1953), reprinted in 2 APB Accounting Principles 6016 (1973). Judge Raum emphasized in D. Loveman & Son that "market" ordinarily means the price the taxpayer must pay to replace the inventory; "it does not mean the price at which such merchandise is resold or offered for resale." 34 T.C., at 796. 13 Thor seeks to justify its write-down by citing Space Controls, Inc. v. Commissioner of Internal Revenue, 322 F.2d 144 (CA5 1963), and similar cases. In Space Controls, the taxpayer manufactured trailers under a fixed-price contract with the Government; it was stipulated that the trailers were suitable only for military use and had no value apart from the contract. The taxpayer experienced cost overruns and sought to write-down its inventory by the amount by which its cost exceeded the contract sales price. The Court of Appeals, by a divided vote, held that the write down was authorized by Treas. Reg. § 1.471-4(b), reasoning that the taxpayer in effect had offered the trailers for sale by way of the fixed-price contract. 322 F.2d, at 151. While not necessarily approving the Fifth Circuit's decision to dispense with the "actual sale" rule of § 1.471-4(b), we note that that case is distinguishable from this one. In Space Controls, the fixed-price contract offered objective evidence of reduced inventory value; the taxpayer in the present case provided no objective evidence of reduced inventory value at all. Petitioner's reliance at oral argument on United States Cartridge Co. v. United States, 284 U.S. 511, 52 S.Ct. 243, 76 L.Ed. 431 (1932), is, we think, similarly misplaced. The taxpayer in that case manufactured ammunition for the Government during World War I. In 1918 the taxpayer was instructed to stop production immediately, with a provision that settlement of its claims for unfinished and undelivered ammunition would be negotiated later. At the end of its taxable calendar year 1918, the ammunition was unsalable at normal prices and settlement negotiations had not yet begun; the taxpayer, accordingly, wrote down its 1918 closing inventory to "market," which was agreed to be $232,000. Id., at 519, 52 S.Ct., at 246. The question was whether the taxpayer, in computing its 1918 taxable income, should value its inventory at that figure, or at $732,000, the sum it ultimately realized upon settlement of its claims with the Army in 1920-1922. This Court held that, in accordance with the annual accounting principle, market value controlled, noting that the taxpayer at the end of 1918 "had no assurance as to what settlements finally would be made or that it ever would receive more than the then market value of the inventories." Id., at 520, 52 S.Ct., at 246. This case, we think, may be said to support, rather than to conflict with, the result we reach here. Just as Thor cannot write down its inventory, in the absence of objective evidence of lower value, because of an anticipated future loss, so the taxpayer in United States Cartridge could not be required to write up its inventory, in the absence of objective evidence of higher value, because of an anticipated future gain. In this respect, at least, tax accounting travels a two-way street. 14 See, e. g., H.R.Doc.No.140, 87th Cong., 1st Sess., 14 (1961) (the President's tax message); B. Bittker & L. Stone, Federal Income, Estate, and Gift Taxation 843 (4th ed. 1972); Skinner, Inventory Valuation Problems, 50 Taxes 748-749 (1972); Schwaigart, Increasing IRS Emphasis on Inventories Stresses Need for Proper Practices, 19 J.Tax. 66, 69 (1963). 15 The Commissioner also contends that Thor's write-down of "excess" inventory was prohibited by Treas. Reg. § 1.471-2(f), 26 CFR § 1.471-2(f) (1964). That section states: "The following methods . . . are not in accord with the regulations in this part: "(1) Deducting from the inventory . . . an estimated depreciation in the value thereof. "(2) Taking work in process, or other parts of the inventory, at a nominal price or at less than its proper value. "(3) Omitting portions of the stock on hand." See Rev.Rul. 77-364, 1977-2 Cum.Bull. 183 (percentage write-down of "slow" and "doubtful" inventory violates § 1.471-2(f)(1)); Rev.Rul. 77-228, 1977-2 Cum.Bull. 182 (deduction from closing inventory of "excess" items still retained for sale violates § 1.471-2(f)(3)). The Court of Appeals and the Tax Court did not consider these contentions. In view of our disposition, we need not consider them either. 16 Until 1973, § 1.471-2(b) of the applicable Regulations provided in pertinent part: "In order clearly to reflect income, the inventory practice of a taxpayer should be consistent from year to year, and greater weight is to be given to consistency than to any particular method of inventorying or basis of valuation so long as the method or basis used is substantially in accord with §§ 1.471-1 to 1.471-9. An inventory that can be used under the best accounting practice in a balance sheet showing the financial position of the taxpayer can, as a general rule, be regarded as clearly reflecting his income." The inventory Regulations were amended in 1973 to require most taxpayers engaged in manufacturing to use the "full absorption method of inventory costing," currently set forth in § 1.471-11. T.D. 7285, 1973-2 Cum.Bull. 163, 164; 26 CFR § 1.471-11 (1978). As part of these amendments, the final sentence of § 1.471-2(b)—containing the "as a general rule" language—was deleted; further, the requirement that inventory practices be "substantially in accord with §§ 1.471-1 to 1.479-9 " was revised to require that such methods be "in accord with §§ 1.471-1 through 1.471-11." 26 CFR § 1.471-2(b) (1978) (emphasis added). The Tax Court and the Court of Appeals both determined that the 1973 amendments to § 1.471-2(b) were inapplicable to this case. 64 T.C., at 167; 563 F.2d., at 866 n. 11. We agree. 17 "I think it is pretty obvious that [inventory representing a 10-year supply] has inherently less value [than inventory representing a 1-year supply] because of the things that can happen to the inventory. Some of it will be lost. Some of it may become damaged. Some of it will become obsolete because of the technological change. Some won't be sold because of the fact that you have market changes. So we were confronted with the problem, as anybody in the manufacturing field [would be], of trying to develop a relationship between inventory quantity and anticipated usage." App. 56-57 (testimony of Thor's president). 18 AICPA Accounting Principles Board, Statement No. 4, Basic Concepts and Accounting Principles Underlying Financial Statements of Business Enterprises, ¶ 171 (1970), reprinted in 2 APB Accounting Principles 9089 (1973). See Sterling, Conservatism: The Fundamental Principle of Valuation in Traditional Accounting, 3 Abacus 109-113 (1967). 19 Accord, Raby & Richter, Conformity of Tax and Financial Accounting, 139 J. Accountancy 42, 44, 48 (Mar. 1975); Arnett, Taxable Income vs. Financial Income: How Much Uniformity Can We Stand?, 44 Accounting Rev. 482, 485-487, 492-493 (July 1969); Cannon, Tax Pressures on Accounting Principles and Accountants' Independence, 27 Accounting Rev. 419, 419-422 (1952). 20 See, e. g., McClure, Diverse Tax Interpretations of Accounting Concepts, 142 J. Accountancy 67, 68-69 (Oct. 1976); Kupfer, The Financial Accounting Disclosure of Tax Matters; Conflicts With Tax Accounting Technical Requirements, 33 N.Y.U.Inst. on Fed.Tax. 1121, 1122 (1975); Healy, Narrowing the Gap Between Tax and Financial Accounting, 22 Tulane Tax Inst. 407, 417 (1973); A Challenge: Can the Accounting Profession Lead the Tax System?, 126 J. Accountancy 66, 68-69 (Sept. 1968). 21 E. g., Raby & Richter, supra, at 44; Arnett, supra at 486; 126 J. Accountancy, supra, at 68. 22 Arnett, supra, at 492 (noting that there are "many and diverse 'acceptable' practices in valuing inventories, depreciating assets, amortizing or not amortizing good will," and the like); 126 J. Accountancy, supra, at 69 (noting that "methods of determining inventory costs vary widely and various methods, if consistently applied, will be acceptable for accounting purposes"); Eaton, Financial Reporting in a Changing Society, 104 J. Accountancy 25, 26 (Aug. 1957); Cox, Conflicting Concepts of Income for Managerial and Federal Income Tax Purposes, 33 Accounting Rev. 242 (1958); Cannon, supra at 421 (suggesting that accountants "are quite prone to define 'generally accepted' as 'somebody tried it' "). 23 Thor's experts did not testify that the company's write-down procedures were the only "generally accepted accounting practice." They testified merely that Thor's inventory needed to be written down, and that the formulae Thor used constituted a "reasonable" way of doing this. App. 166, 184, 196. 24 The details of the calculation are set out in Black Motor Co. v. Commissioner, 41 B.T.A., at 302. See 2 CCH 1978 Stand. Fed. Tax Rep., ¶ 1624.0992; Whitman, Gilbert, & Picotte, The Black Motor Bad Debt Formula: Why It Doesn't Work and How to Adjust It, 35 J.Tax. 366 (1971). 25 Malone & Hyde, Inc. v. United States, 568 F.2d 474, 477 (CA6 1978); Business Dev. Corp. of No. Carolina v. United States, 428 F.2d 451, 453 (CA4), cert. denied, 400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265 (1970); United States v. Haskel Engineering & Supply Co., 380 F.2d 786, 789 (CA9 1967); Patterson v. Pizitz, Inc., 353 F.2d 267, 270 (CA5 1965), cert. denied, 383 U.S. 910, 86 S.Ct. 895, 15 L.Ed.2d 666 (1966); Ehlen v. United States, 323 F.2d 535, 539, 163 Ct.Cl. 35, 42 (1963); James A. Messer Co. v. Commissioner, 57 T.C. 848, 864-865 (1972). 26 Atlantic Discount Co. v. United States, 473 F.2d 412, 414-415 (CA5 1973) (citing cases); Consolidated-Hammer Dry Plate & Film Co. v. Commissioner of Internal Revenue, 317 F.2d 829, 834 (CA7 1963). 27 E. g., Malone & Hyde, Inc. v. United States, 568 F.2d, at 477; First Nat. Bank of Chicago v. Commissioner of Internal Revenue, 546 F.2d 759, 761 (CA7 1976), cert. denied, 431 U.S. 915, 97 S.Ct. 2176, 53 L.Ed.2d 225 (1977). 28 See, e. g., Rev.Rul. 76-362, 1976-2 Cum.Bull. 45, 46 ("[A]s a general rule, the Black Motor formula may be used to determine a reasonable addition to a reserve for bad debts" under § 166(c)). 29 E. g., Atlantic Discount Co. v. United States, 473 F.2d, at 413, 415; Ehlen v. United States, 323 F.2d, at 540-541, 163 Ct.Cl., at 45; James A. Messer Co. v. Commissioner, 57 T.C., at 857, 865-866. 30 See § 585(b)(3) of the 1954 Code, 26 U.S.C. § 585(b)(3) (using "six-year moving average" formula as alternative method of computing reasonable addition to bad-debt reserve for banks); § 586(b)(1) (using "six-year moving average" formula to compute reasonable addition to bad-debt reserve for small business investment companies). 31 E. g., Westchester Development Co. v. Commissioner, 63 T.C. 198, 212 (1974), acq., 1975-2 Cum.Bull. 2 (Commissioner abused discretion in invoking Black Motor where taxpayer's recent bad-debt experience was "wholly unrepresentative" given its "comparatively brief operational history"). 32 E. g., Calavo, Inc. v. Commissioner of Internal Revenue, 304 F.2d 650, 651-652, 654 n. 4, 655 (CA9 1962) (extraordinary addition to reserve to cover losses on accounts due from debtor who recently became insolvent). 33 Indeed, as has been noted, a significant portion of Thor's addition to its reserve reflected blanket aging of accounts. Both the Treasury, Rev.Rul. 76-362, 1976-2 Cum.Bull. 45, 46, and the courts, United States v. Haskel Engineering & Supply Co., 380 F.2d, at 787, 789; James A. Messer Co. v. Commissioner, 57 T. C., at 857, 866, have held that such mechanical formulae are inadequate to overcome the Commissioner's discretionary invocation of Black Motor under § 166(c).

1112

439 U.S. 508 99 S.Ct. 765 58 L.Ed.2d 773 FEDERAL ENERGY REGULATORY COMMISSION, Petitioner,v.PENNZOIL PRODUCING COMPANY et al. No. 77-648. Argued Nov. 28, 1978. Decided Jan. 16, 1979. Syllabus Respondent pipeline company purchases for resale in the interstate market natural gas produced from a Louisiana field by respondent oil companies (Producers), whose prices are subject to regulation by petitioner Commission. Under their lease agreements with the field's owner, the Producers pay royalties pegged to the "market value" or "market price" of the gas. Following a dispute over the lessor's contention that those terms related to the unregulated price of natural gas in the intrastate market rather than to the lower interstate Commission-regulated rates, the parties ultimately agreed to increased royalty payments based on intrastate market values of natural gas. Alternatively the Producers would abandon delivery to the pipeline company of the royalty portion of the gas and deliver it instead as payment in kind to the lessor. The settlement agreement was to be binding only if the rate increase or the alternative abandonment was approved by the Commission, which the Producers then petitioned for special relief. The Commission denied price relief, holding that it would be contrary to its mandate to permit royalty costs to be passed on to the Producers' customers if the royalties were calculated on any basis other than the just and reasonable rate for the gas involved, and, relying in part on FPC v. Texaco, Inc., 417 U.S. 380, 94 S.Ct. 2315, 41 L.Ed.2d 141, the Commission concluded that it was "not free" to allow royalty costs based on the value of the gas in an unregulated market. The Commission also denied the alternative abandonment request. The Court of Appeals reversed and remanded, 5 Cir., 553 F.2d 485, concluding that the Commission had "authority to consider the reasonableness of any costs incurred," which "necessarily requires consideration of market price"; had failed to explain why royalty costs in an unregulated market differ from other production costs; and should determine the merits of the Producers' requests. The court, following its opinion in Southland Royalty Co. v. FPC, 5 Cir., 543 F.2d 1134, disagreed with the Commission on the abandonment issue. Held : 1. The Natural Gas Act does not deny the Commission authority to give special rate relief to individual producers where escalating royalty costs are a function of, or are otherwise based upon, an unregulated market price for the product whose sale in the interstate market is regulated by the Commission, and the Commission misconstrued Texaco in holding to the contrary. Pp. 514-517. 2. The Court of Appeals encroached upon the Commission's rate-making authority when it strongly suggested that the Commission is required to grant relief to the Producers as long as the increase in royalty costs is not imprudent and the relief when granted will merely sustain rather than increase the Producers' profits, since the Commission is not obliged automatically to relieve the bind on producers facing increased royalty costs based on unregulated prices. "All that is protected against, in a constitutional sense, is that the rates fixed by the Commission be higher than a confiscatory level." FPC v. Texaco, Inc., supra, 417 U.S. at 392, 94 S.Ct. at 2323. Pp. 517-519. 3. In view of the record, a remand to the Commission is proper so that in the first instance it may clearly enunciate whether and to what extent individual relief from area rates will be granted due to the increased royalty costs, and, if relief is to be denied, that it may adequately explain its judgment. Pp. 519-520. 4. On the abandonment issue, the Court of Appeals erred to the extent that it relied upon its judgment that was later reversed in California v. Southland Royalty Co., 436 U.S. 519, 98 S.Ct. 1955, 56 L.Ed.2d 505. Moreover, the questions of individual rate relief and abandonment are not unrelated and may be considered by the Commission on remand. Pp. 520-521. 553 F.2d 485, vacated and remanded. Stephen R. Barnett, Dept. of Justice, Washington, D.C., for petitioner. Jeron L. Stevens, Houston, Tex., for respondent Pennzoil Producing Co. Thomas G. Johnson, Houston, Tex., for respondent Shell Oil Co. Mr. Justice WHITE delivered the opinion of the Court. 1 The major issue in this case involves the authority of the Federal Energy Regulatory Commission, petitioner herein, to grant or refuse to grant individual producers special relief from applicable area and nationwide rates set by the Commission for the sale of natural gas. The Court of Appeals for the Fifth Circuit set aside what it considered to have been the decision of the Commission that under the Natural Gas Act, 52 Stat. 821, as amended, 15 U.S.C. § 717 et seq., it did not have authority to grant exceptional relief which would allow producers to pass through to interstate customers increased royalty costs based upon the intrastate price of natural gas. A secondary issue involves a question of abandonment under § 7(b) of the Act, 15 U.S.C. § 717f(b), and an application of our decision last Term in California v. Southland Royalty Co., 436 U.S. 519, 98 S.Ct. 1955, 56 L.Ed.2d 505 (1978), rev'g Southland Royalty Co. v. FPC, 543 F.2d 1134 (CA5 1976). 2 * Respondent United Gas Pipe Line Co. (United) purchases for resale in the interstate market natural gas produced by respondents Pennzoil Oil Producing Co. and Shell Oil Co. (Producers) from the Gibson field in southern Louisiana. Producers' prices are subject to Commission regulation and may not exceed the just and reasonable rates established by the Commission in its relevant area and nationwide rate proceedings.1 Under their lease agreements with the owner of the Gibson field, Producers pay royalties pegged to the "market value" or "market price" of the gas. After commencement of state-court litigation involving the lessor's contention that these references are to the unregulated price of natural gas in the intrastate market,2 rather than to the applicable interstate rates set by the Commission,3 the lessor and Producers reached a settlement agreement whereby royalty payments would be pegged to the higher of 78¢ per 1,000 cubic feet of gas (increasing 1.5¢ per year beginning in 1976) or 150% of the highest applicable interstate rate. In the alternative, Producers would abandon delivery to United of the royalty portion of the gas and deliver it instead as payment in kind to the lessor. However, this settlement would be binding only if the Commission allowed Producers to charge United a rate higher than applicable area and nationwide rates by the amount of the resulting increase in royalty costs, or in the alternative, permitted the desired abandonment.4 3 The Commission referred Producers' subsequent petition for special relief, supported by intervenor United, to an Administrative Law Judge who, after a hearing, denied the petition. Under his review of applicable cases, special relief from the relevant ceiling rates, while not absolutely prohibited, would be available only if Producers demonstrated "that [their] overall costs incurred in the operation of the particular well or group of wells are higher than the applicable Commission-established area or nationwide ceiling rates, or, even more stringently, that [their] out-of-pocket expenses will exceed revenues." App. 171. The administrative law judge concluded that neither Producer had satisfied its burden of proof in this respect. Nor had it made a case for abandonment of the royalty portion of the gas. 4 The Commission affirmed but took a somewhat different approach.5 Acknowledging for the purposes of this case that it had no jurisdiction over royalty rates,6 the Commission nevertheless noted its authority to regulate the prices charged by Producers for gas sold in interstate commerce and asserted that it would be "inconsistent" with and "contrary" to its mandate to permit royalty costs to be passed on to Producers' customers if royalties were calculated on any basis other than the just and reasonable rate for the gas involved. Relying in part on our decision in FPC v. Texaco, Inc., 417 U.S. 380, 94 S.Ct. 2315, 41 L.Ed.2d 141 (1974), the Commission concluded that it was "not free" to allow royalty costs based on the value of the gas in an unregulated market. 55 F.P.C. 400, 404-405 (1976).7 In an opinion and order denying rehearing, the Commission said that it "does not have the power to base a part of the regulated price on the unregulated market value of intrastate gas."8 Price relief was thus denied without accepting or rejecting the findings of the administrative law judge with respect to the relationship between the Producers' costs and revenues. The Commission also denied the alternative request for abandonment of the royalty portion of the gas. 5 The Court of Appeals rejected the Commission's determination that it was without authority to allow producers of natural gas to increase their rates above applicable area and nationwide rates in order "to reflect the increased cost of 'market value' or 'market price' royalty obligations." Pennzoil Producing Co. v. FPC, 553 F.2d 485, 487 (CA5 1977). Asserting that the Commission "has taken a cost plus profit approach to gas rate regulation," the Court of Appeals believed that in seeking to pass through their increased royalty expense, Producers "do not seek to increase their profits but merely to maintain those margins already determined by the Commission to be just and reasonable." Id., at 488. The Commission had "authority to consider the reasonableness of any costs incurred," but doing so "necessarily requires consideration of market price," and the Commission had failed to explain why royalty costs in an unregulated market are different from any other cost of production. Ibid. The court concluded that these considerations and our decision in Mobil Oil Corp. v. FPC, 417 U.S. 283, 94 S.Ct. 2328, 41 L.Ed.2d 72 (1974), entitled the Producers to a "determination of the merits" of their request for special relief for the applicable area and nationwide rates. 553 F.2d, at 488. 6 Based on its opinion and judgment in Southland Royalty Co. v. FPC, 543 F.2d 1134 (CA5 1976), the Court of Appeals also disagreed with the Commission on the abandonment issue. II 7 If the Commission's opinion is to be read as holding that granting an individual producer a rate increase at variance with the established area or national rate in order to accommodate an increase in royalty costs is forbidden by the Act under any circumstance, the Court of Appeals was surely correct in disagreeing with the Commission. In Permian iBasin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968), the Commission urged that "nothing in the Constitution or in the Natural Gas Act require[s] the Commission to provide exceptions to the area rates," at least so long as the Commission permitted abandonment when costs exceed revenues, but it nevertheless pointed out that it had established a procedure whereby individual producers may seek relief from the applicable area rate. Brief for the FPC, O.T. 1967, Nos. 90 et al., p. 64. Similarly, in Mobil Oil Corp. v. FPC, supra, the Commission, responding to the possibility of certain producers facing higher royalty payments than the fixed percentage of total costs used by the Commission in setting the area rates, stated—in agreement with the Court of Appeals—that "the issue is hypothetical at this stage and that if it becomes a reality producers may seek special relief from the Commission." Brief for Respondent FPC, O.T. 1973, Nos. 73-437 et al., p. 62. This Court proceeded on a similar assumption, saying that "in any event an affected producer is entitled to seek individualized relief." 417 U.S., at 328, 94 S.Ct., at 2355. 8 None of the foregoing is consistent with the proposition that the Commission is totally without power to give special relief to individual producers whose escalating royalty costs place them in an untenable position. In view of the scope of the discretion vested in the Commission to establish just and reasonable rates consistent with the public interest, we could not hold that the Act forbids special relief from area rates to accommodate increased royalty costs regardless of the circumstances. 9 Nor do we understand the Commission in this Court to deny its jurisdiction to extend such relief in proper situations. Indeed, in its brief before this Court the Commission states that "with the approval of the courts, [it] has established the policy that it will not authorize departures from area rates unless a producer can show that its costs exceed its revenues at the area rate. See, e. g., Op. No. 699, 51 F.P.C. 2212, 2279, aff'd, Shell Oil Co. v. Federal Power Commission, 520 F.2d 1061 (C.A.5), certiorari denied, 426 U.S. 941 [96 S.Ct. 2661, 49 L.Ed.2d 394.]" Brief for Petitioner 34. The Commission does not suggest that this policy is generally inapplicable to cases seeking relief because of escalating royalty costs. 10 Nevertheless, the Commission's initial opinion and its opinion denying rehearing indicated that it is "not free' and that "it does not have the power" to give individualized relief where escalating royalty costs are a function of, or are otherwise based upon,9 an unregulated market price for the product the sale of which in the interstate market is regulated by the Commission. Erroneously, we think, the Commission sought support for these conclusions inTexaco, 417 U.S., at 399, 94 S.Ct., at 2327, where we reminded the Commission that "[i]n subjecting producers to regulation because of anticompetitive conditions in the industry, Congress could not have assumed that 'just and reasonable' rates could conclusively be determined by reference to market price." We did not, however, hold, as suggested by the Commission, that it "has no authority to permit rate increases based on royalty costs tied to the unregulated market for natural gas." Brief for Petitioner 13; see also id., at 16, 19, 21. Our concern in Texaco was that rates of small producers might be totally exempted from the Act, and we did not indicate that producer or pipeline rates would be per se unjust and unreasonable because related to the unregulated price of natural gas. Texaco did not purport to circumscribe so severely the Commission's discretion to decide what formulas and methods it will employ to ensure just and reasonable rates. Indeed, the decision underscored the wide discretion vested in the Commission. See 417 U.S., at 387-393, 94 S.Ct., at 2321-2324. III 11 We are also convinced, however, that the Court of Appeals trenched upon the ratemaking authority vested in the Commission when it strongly suggested that the Commission is required to grant the relief Producers request in this case so long as the increase in royalty costs is not imprudent and the relief, when granted, will merely sustain rather than increase Producers' profits. 12 Sections 4 and 5 of the Natural Gas Act, 15 U.S.C. §§ 717c and 717d, mandate the Commission to set just and reasonable rates for the sale of interstate natural gas. In sustaining the Commission's authority to establish maximum rates on an areawide basis, we noted that "courts are without authority to set aside any rate adopted by the Commission which is within a 'zone of reasonableness,' " Permian Basin Area Rate Cases, supra, 390 U.S., at 797, 88 S.Ct., at 1376. Moreover, in arriving at just and reasonable rates "no single method need be followed." Wisconsin v. FPC, 373 U.S. 294, 309, 83 S.Ct. 1266, 1274, 10 L.Ed.2d 357 (1963). Specifically, the Commission is not required to adhere "rigidly to a cost-based determination of rates, much less to one that base[s] each producer's rates on his own costs." Mobil Oil, 417 U.S., at 308, 94 S.Ct., at 2346. While recognizing that under an areawide approach, " 'high cost operators may be more seriously affected . . . than others,' " Permian Basin, supra, 390 U.S., at 769, 88 S.Ct., at 1361, quoting Bowles v. Willingham, 321 U.S. 503, 518, 64 S.Ct. 641, 649, 88 L.Ed. 892 (1944), we refused to invalidate as inadequate the Commission's proposal to provide special relief when a producer's " 'out of pocket expenses in connection with the operation of a particular well' exceed[s] its revenue from the well under the applicable area price," 390 U.S., at 770-771, 88 S.Ct., at 1361-1362. 13 The Court of Appeals proceeded from the proposition that "[a] cost-based methodology was approved" in Permian Basin, to the implicit conclusion that the Commission is required to allow producers to maintain whatever profit margins they enjoyed under area or national rates, and that therefore it must grant special relief from these rates for all reasonable cost increases, emphasizing that a cost is not unreasonable simply because it is based on an unregulated market price. It must be noted, however, that the methodology employed by the Commission in arriving at the area rates approved in Permian Basin was not a purely cost-plus approach. To the contrary, the Court recognized "deviation[s] from cost-based pricing" which it "found not to be unreasonable and to be consistent with the Commission's responsibility to consider not merely the interests of the producers . . . but also 'the relevant public interests' . . . ." Mobil Oil, supra, 417 U.S., at 308-309, 94 S.Ct., at 2346, quoting Permian Basin, 390 U.S., at 792, 88 S.Ct., at 1373. Furthermore, the notion that the Commission is required to maintain, or even allowed to maintain to the exclusion of other considerations, the profit margin of any particular producer is incompatible not only with the specific area approach to natural gas regulation approved in Permian Basin and Mobil Oil but also with a basic precept of rate regulation. "The fixing of prices, like other applications of the police power, may reduce the value of the property which is being regulated. But the fact that the value is reduced does not mean that the regulation is invalid." FPC v. Hope Natural Gas Co., 320 U.S. 591, 601, 64 S.Ct. 281, 287, 88 L.Ed. 333 (1944). The Commission is not required by the Act to grant special relief from area or nationwide rates simply because the costs of an individual producer increase and his profits decline. 14 Given the wide discretion of the Commission to refuse exceptional relief, we are somewhat unsure of the meaning of the Court of Appeals' statement that respondents in this case "were entitled to a determination of the merits of their requests." 553 F.2d, at 488. We think that the Court of Appeals read too much into our statement in Mobil Oil that a producer with rising royalty costs "is entitled to seek individualized relief." 417 U.S., at 328, 94 S.Ct., at 2355. We did not there suggest that the Commission must be prepared to grant such relief in order to forestall declining profits. Indeed, we rejected the claim that the Commission must "provide automatic adjustments in area rates to compensate for anticipated higher royalty costs." Ibid. Moreover, in Texaco, decided the same day as Mobil, we faced the issue whether the Commission had acted arbitrarily in failing to provide relief from the bind that pipelines and large producers might be put in if direct regulation of small producers were eliminated, a bind similar to that in which respondent Producers may find themselves if their royalty costs increase. We concluded in Texaco : 15 "[R]equiring pipelines and the large producers to assume the risk in bargaining for reasonable prices from small producers is within the Commission's discretion in working out the balance of the interests . . . involved." 417 U.S., at 392, 94 S.Ct., at 2324. 16 Likewise, the Commission is under no obligation automatically to relieve the bind on producers facing increased royalty costs based on unregulated prices. "All that is protected against, in a constitutional sense, is that the rates fixed by the Commission be higher than a confiscatory level." Id., at 391-392, 94 S.Ct., at 2323. The Commission would not exceed its statutory authority if, in its view of the public interest, it determines to reject requests for special relief presenting no colorable claim that the applicable area or nationwide rate is confiscatory or, what may amount to the same thing,10 outside the "zone of reasonableness," Permian Basin, supra, 390 U.S., at 797, 88 S.Ct., at 1375; FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 585, 62 S.Ct. 736, 742, 86 L.Ed. 1037 (1942). IV 17 Although we hold that the Court of Appeals too narrowly confined the Commission's functions and judgment on remand, we agree that the case should be returned to the Commission. As we have said, despite the indications to the contrary in its opinions below and despite its failure to address the Administrative Law Judge's findings with respect to Producers' proof as to their costs and revenues, the Commission does not seem to take the position here that it is totally without power to grant individual relief from area rates in recognition of increased royalty costs and that the relationship between the individual producer's costs and revenues in such a proceeding is totally irrelevant. Expressing its adherence to the policy approved in Shell Oil Co. v. FPC, 520 F.2d 1061 (CA5 1975), cert. denied, 426 U.S. 941, 96 S.Ct. 2661, 49 L.Ed.2d 394 (1976), the Commission points to the findings of the Administrative Law Judge that Producers in this case failed to make any showing that their costs exceed revenues. See Brief for Petitioner 34-35. At the same time, however, the Commission disaffirms any suggestion that its order be sustained on a ground that it did not itself rely upon. Id., at 34. The agency's reluctance is understandable, see Texaco, 417 U.S., at 395-397, 94 S.Ct., at 2325-2326; Burlington Truck Lines v. United States, 371 U.S. 156, 168-169, 83 S.Ct. 239, 245-246, 9 L.Ed.2d 207 (1962); SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947). The upshot is that, given this state of the record, a remand to the Commission is the proper course in order that the Commission in the first instance may clearly enunciate whether and to what extent individual relief from area rates will be granted due to the increased royalty costs that are or may be involved in this case, and, if relief is to be denied, that it may make an adequate explanation of its judgment. Cf. Burlington Truck Lines, supra, 371 U.S., at 167-168, 83 S.Ct., at 245. If, as the Commission perhaps now suggests, the policy set forth in Shell Oil is the policy to be followed in cases such as this, the Commission should proceed to complete its task of reviewing and sustaining or rejecting the findings of the Administrative Law Judge. V 18 With respect to the issue of abandonment, it is apparent that to the extent that the Court of Appeals relied upon its judgment in the Southland case, it was in error since that judgment was reversed here. It also appears to us, however, that the question of individual rate relief and that of abandonment are not unrelated. If the Commission were to take the position that relief from area rates to accommodate royalty costs tied to intrastate rates is unavailable regardless of the relationship between costs and revenues, it may be that the issue of abandonment would appear in a different light. Cf. Permian Basin, 390 U.S., at 770-771, 88 S.Ct., at 1361-1362. In any event, it is the better part of wisdom to vacate the judgment of the Court of Appeals and to remand the case to that court with directions to return the entire case to the Commission for further appropriate proceedings. 19 So ordered. 20 Mr. Justice STEWART and Mr. Justice POWELL took no part in the consideration or decision of this case. 1 At the time of the Commission's decision in this case, the applicable rates were those prescribed by Opinion No. 598, Area Rate Proceeding (Southern Louisiana Area ), 46 F.P.C. 86, enf'd sub nom. Placid Oil Co. v. FPC, 483 F.2d 880 (CA5 1973), aff'd sub nom. Mobil Oil Corp. v. FPC, 417 U.S. 283, 94 S.Ct. 2328, 41 L.Ed.2d 72 (1974); Opinion No. 699-H, Just and Reasonable National Rates for Sales of Natural Gas, 52 F.P.C. 1064 (1974), aff'd sub nom. Shell Oil Co. v. FPC, 520 F.2d 1061 (CA5 1975), cert. denied, 426 U.S. 941, 96 S.Ct. 2661, 49 L.Ed.2d 394 (1976). 2 The Commission takes the position that construction of such clauses is a question of federal law, and that the "market" referred to is that for interstate gas. See Brief for Petitioner 35-37, and n. 22. Compare Lightcap v. Mobil Oil Corp., 221 Kan. 448, 562 P.2d 1, cert. denied, 434 U.S. 876, 98 S.Ct. 228, 54 L.Ed.2d 156 (1977), petition for rehearing pending, No. 76-1694; and Kingery v. Continental Oil Co., 434 F.Supp. 349 (WD Tex.1977), with Mobil Oil Corp. v. FPC, 149 U.S.App.D.C. 310, 319-320, 463 F.2d 256, 265-266 (1971), cert. denied, 406 U.S. 976, 92 S.Ct. 2409, 32 L.Ed.2d 676 (1972). 3 Under the Natural Gas Policy Act of 1978, Pub.L. 95-621, 92 Stat. 3351, all wellhead natural gas, including that dedicated to the intrastate market, that is sold after December 1, 1978, will be subject to the Act's price ceilings. However, there will remain for some time a differential between the rate prescribed for gas previously unregulated and that prescribed for gas dedicated to the interstate market. 4 In separate agreements, United consented to make the additional payments or to release the royalty gas, pursuant to Commission approval. 5 The Commission framed the issue before it as "whether [the Commission] can legally grant any form of rate relief above either an area or nationwide just and reasonable rate solely because the producer selling the gas in interstate commerce may be obligated to make a royalty payment based not upon the regulated price the producer receives for the gas, but rather on the 'market value' of the gas." 55 F.P.C. 400, 404 (1976). 6 See Mobil Oil Corp. v. FPC, 149 U.S.App.D.C. 310, 463 F.2d 256 (1971), cert. denied, 406 U.S. 976, 92 S.Ct. 2409, 32 L.Ed.2d 676 (1972). 7 The Commission said: "In the instant proceeding, the impetus of the settlement is the market value of the royalties and no consideration has been given to regulated rates. As such, we cannot permit any incremental royalty costs resulting from this settlement, or resulting from any judgment by a state court regarding royalty payments, to be passed on to the pipeline if these incremental royalty costs are based on any other factors than the regulated just and reasonable rate. On this point, we note the Supreme Court's warning in FPC v. Texaco . . . that the Commission is not free to equate just and reasonable rates with the prices for gas in the marketplace. Accordingly, we believe that we are not free to allow royalty costs, which are based on market values, to be passed on to the pipelines as just and reasonable rates. A contrary result would not '. . . afford customers a complete, permanent, and effective bond of protection from excessive rates and charges.' " 55 F.P.C., at 405. 8 55 F.P.C. 901 (1976). The Commission also explained: "In arriving at the national rates costs of production were used and royalties were computed at 16 percent of total costs. . . . It is for these reasons that the Commission is not free to allow royalty costs, which are based on market values, to be passed on to the pipelines as just and reasonable rates." Id., at 902. In separately denying the petition for rehearing filed by another litigant, the Commission observed that in setting area rates, an allowance for royalty costs "would depend on the royalties generally being paid in the area", but this did not mean that an "individual producer's rates should be increased because it must pay a higher royalty, particularly one based on market value." 55 F.P.C. 1377, 1379 (1976). 9 The increasing rates provided for in the tentative settlement between United and Producers in this case, while formally pegged to the higher of the regulated rate or a specific price, are based upon unregulated market prices in that, as the Commission noted, 55 F.P.C., at 405, "the impetus of the settlement is the [unregulated] market value of the royalties." 10 See Mobil Oil, 417 U.S., at 316, 94 S.Ct., at 2349; Permian Basin Area Rate Cases, 390 U.S. 747, 769-770, 88 S.Ct. 1344, 1361 (1968).

78

439 U.S. 572 99 S.Ct. 802 59 L.Ed.2d 1 Jess H. HISQUIERDO, Petitioner,v.Angela HISQUIERDO. No. 77-533. Argued Nov. 1, 1978. Decided Jan. 22, 1979. Syllabus The Railroad Retirement Act of 1974 (Act) provides retirement benefits for railroad employees. The benefits are not contractual and can be altered by Congress at any time. Benefits for an employee's spouse terminate upon an absolute divorce. 45 U.S.C. § 231d(c)(3). Except for satisfying child-support or alimony obligations, "no annuity [under the Act] shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated . . . ." 45 U.S.C. § 231m. Petitioner, a California resident whose years of service as a railroad employee entitled him to benefits under the Act if and when he attained age 60, petitioned for dissolution of his marriage to respondent, also a resident of California, which has a community property law. The trial court divided the parties' community property but held that respondent had no interest in petitioner's expectation of receiving railroad retirement benefits. The Supreme Court of California ultimately reversed, holding that because the benefits would flow in part from petitioner's employment during marriage, they were community property. The court rejected petitioner's contention that § 231m barred respondent's claim, reasoning that the provision was intended to apply to creditors only. Held: Benefits payable under the Act may not be divided under the community property law. Pp. 581-590. (a) Ordering petitioner to pay respondent an appropriate portion of his benefits under the Act, or its monetary equivalent, as petitioner receives it, would contravene § 231m and would deprive petitioner of a portion of the benefit Congress, in § 231d(c)(3), indicated was designed for the railroad employee alone. Under the Supremacy Clause, California must defer to the Act's statutory scheme for allocating benefits insofar as the terms of federal law require. Pp. 583-587. (b) An offsetting award for the expected value of respondent's interest in petitioner's statutory benefits would likewise defeat the purpose of barring the anticipation of payments under § 231m of the Act. Pp. 588-590. 19 Cal.3d 613, 139 Cal.Rptr. 590, 566 P.2d 224, reversed and remanded. James D. Endman, Los Angeles, Cal., for petitioner. Elinor H. Stillman, Washington, D. C., for United States, as amicus curiae, by special leave of Court. Howard M. Fields, Los Angeles, Cal., for respondent, pro hac vice, by special leave of Court. Herma Hill Kay, Berkeley, Cal., for NOW Legal Defense and Education Fund, as amicus curiae, by special leave of Court. Mr. Justice BLACKMUN delivered the opinion of the Court. 1 Petitioner Jess H. Hisquierdo in 1975 sued to dissolve his marriage with respondent Angela Hisquierdo. The Supreme Court of California, in applying the State's community property rules, awarded respondent an interest in petitioner's expectation of ultimately receiving benefits under the Railroad Retirement Act of 1974, 88 Stat. 1305, 45 U.S.C. § 231 et seq. The issue here is whether the Act prohibits this allocation and division of benefits. 2 * The Railroad Retirement Act, first passed in 1934, 48 Stat. 1283, provides a system of retirement and disability benefits for persons who pursue careers in the railroad industry. Its sponsors felt that the Act would encourage older workers to retire by providing them with the means "to enjoy the closing days of their lives with peace of mind and physical comfort," and so would "assure more rapid advancement in the service" and also more jobs for younger workers.1 Both employees and carriers pay a federal tax2 which funds a Railroad Retirement Account. The Railroad Retirement Board, provided for by the Act, 45 U.S.C. § 231f, disburses benefits from the account to each eligible "individual," 45 U.S.C. § 231a. 3 In its modern form,3 the Act resembles both a private pension program and a social welfare plan. It provides two tiers of benefits. The upper tier, like a private pension, is tied to earnings and career service. An employee, to be eligible for benefits, must work in the industry 10 years. Absent disability, no benefit is paid, however, until the employee either reaches age 62 or is at least 60 years old and has completed 30 years of service. 45 U.S.C. § 231a(a)(1). Like a social welfare or insurance scheme, the taxes paid by and on behalf of an employee do not necessarily correlate with the benefits to which the employee may be entitled. Since 1950, the Railroad Retirement Account has received substantial transfers from the social security system, and legislative changes made in 1974 were expected to require a one-time infusion of $7 billion in general tax revenues.4 4 The lower, and larger, tier of benefits corresponds exactly to those an employee would expect to receive were he covered by the Social Security Act. 45 U.S.C. § 231b(a)(1). The Act provides special benefits for the children or parent of a worker who dies. §§ 231a(d)(1)(iii) and (iv). It also makes detailed provision for a worker's spouse; the spouse qualifies for an individual benefit if the spouse lives with the employee, and receives regular contributions from the employee for support, or is entitled to support from the employee pursuant to a court order. § 231a(c)(3)(i). The benefits terminate, however, when the spouse and the employee are absolutely divorced. § 231d(c)(3).5 5 Like Social Security, and unlike most private pension plans, railroad retirement benefits are not contractual. Congress may alter, and even eliminate, them at any time.6 This vulnerability to congressional edict contrasts strongly with the protection Congress has afforded recipients from creditors, taxgatherers, and all those who would "anticipate" the receipt of benefits: 6 "Notwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated . . . ." 45 U.S.C. § 231m.7 7 In 1975, Congress made an exception to § 231m and similar provisions in all other federal benefit plans. Concerned about recipients who were evading support obligations and thereby throwing children and divorced spouses on the public dole, Congress amended the Social Security Act by adding a new provision, § 459, to the effect that, notwithstanding any contrary law, federal benefits may be reached to satisfy a legal obligation for child support or alimony. 88 Stat. 2357, 42 U.S.C. § 659.8 In 1977, shortly before the issuance of the Supreme Court of California's opinion in this case, Congress added to the Social Security Act a definitional statute, § 462(c), which relates to § 459 and limits "alimony" to its traditional common-law meaning of spousal support. That statute states specifically that "alimony" 8 "does not include any payment or transfer of property or its value by an individual to his spouse or former spouse in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses." Pub.L. 95-30, Tit. V, § 501(d), 91 Stat. 160.9 II 9 Petitioner and respondent, who are California residents, were married in Nevada in 1958. They separated in 1972. In 1975 petitioner instituted this proceeding in the Superior Court of California, County of Los Angeles, for dissolution of the marriage. California, like seven other States, by statute has a form of community property law brought to our shores by the Spanish. In California the 10 "statute proceeds upon the theory that the marriage, in respect to property acquired during its existence, is a community of which each spouse is a member, equally contributing by his or her industry to its prosperity, and possessing an equal right to succeed to the property after dissolution, in case of surviving the other." Meyer v. Kinzer, 12 Cal. 247, 251 (1859).10 11 Community property includes the property earned by either spouse during the union, as well as that given to both during the marriage. See Cal.Civ.Code Ann. § 687 (West 1954). It contrasts with separate property, which includes assets owned by a spouse before marriage or acquired separately by a spouse during marriage through gift. In community property States, ownership turns on the method and timing of acquisition, while the traditional view in common-law States is that ownership depends on title.11 On the theory that petitioner acquired an expectation of receiving Railroad Retirement Act benefits due in part to his labors while married, respondent (but not petitioner) in the California divorce proceeding listed that expectation as an item of community property subject to division upon dissolution of the marriage. App. 2, 3. 12 At the time, petitioner, a railroad machinist, was aged 55. He had worked from 1942 to 1975 for the Atchison, Topeka & Santa Fe Railway, and subsequently entered the employ of the Los Angeles Union Passenger Terminal. Both jobs fell within the Act. Because petitioner had 30 years' service, the statute would permit him to receive benefits if and when he attained age 60. Respondent calculated that she was entitled to half the benefits attributable to his labor during the 14 years of their marriage, or, by her estimates, 19.6% of the total benefits to be received.12 The couple has no children. 13 Respondent in 1975 was 53. She had worked for the preceding eight years in a factory. She had been gainfully employed for 35 years and had an expectation that upon her retirement she would be entitled to benefits under the Social Security Act. Neither petitioner nor respondent claimed that her expectation of receiving those benefits was community property. App. 2, 3. 14 Respondent, and petitioner, too, waived their claims to spousal support. Tr. of Oral Arg. 5, 33. After its hearing, the Superior Court awarded petitioner the couple's home, in which they had a $12,828 equity, and its furnishings. Respondent was awarded an automobile and a small interest in a mutual fund. The court, however, ordered petitioner to reimburse respondent, by installment payments, for her half of the equity in the home and protected this obligation with an imposed lien in her favor on the real estate. The court ruled that no community interest existed either in petitioner's prospect of receiving Railroad Retirement Act benefits or in respondent's anticipation of benefits under the Social Security Act. App. 4. 15 The California Court of Appeal affirmed. In re Hisquierdo, 133 Cal.Rptr. 684 (2d Dist. 1976). The court, noting that under this Court's Supremacy Clause cases Congress has the power to determine the character of a federally created benefit, rejected respondent's claim that petitioner's expectation of receiving Railroad Retirement Act benefits was community property. The court reasoned that, because federal pension programs may be terminated by Congress at any time, petitioner had no enforceable contract right. Respondent contended that the state court, under the decision in In re Milhan, 13 Cal.3d 129, 117 Cal.Rptr. 809, 528 P.2d 1145 (1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975), could determine the expected value of her interest and award her a compensating amount of other property available for distribution. The court held, however, that such a remedy would be contrary to § 231m, which provides that benefits are not to be "anticipated," and would frustrate the explicit and detailed terms of the Act that grant the employee a benefit separate and distinct from the nonemployee spouse's benefit that terminates upon absolute divorce. See also In re Nizenkoff, 65 Cal.App.3d 136, 135 Cal.Rptr. 189 (1st Dist. 1976) (expectation of receiving benefits under the Social Security Act); In re Kelley, 64 Cal.App.3d 82, 134 Cal.Rptr. 259 (2d Dist. 1976) (the same). 16 Review was granted by the Supreme Court of California. Respondent there argued that "there is absolutely no evidence that Congress ever intended to prevent a community property state from recognizing a spouse's community interest in a Railroad Retirement Act retirement plan."13 In a unanimous opinion that court reversed the Court of Appeal. In re Hisquierdo, 19 Cal.3d 613, 139 Cal.Rptr. 590, 566 P.2d 224 (1977). Relying on its recent case law,14 the Supreme Court of California held that because the benefits would flow in part from petitioner's employment during marriage, they were community property even though under federal law petitioner had no enforceable contract right. Congress' decision to terminate benefits for divorced spouses, the court believed, was evidence that Congress intended to rely on traditional state-law doctrines to protect them. The court rejected petitioner's contention that § 231m barred respondent's claim. The court reasoned that it was intended to bar creditors, and respondent was not a creditor but a present owner. The then very recent 1977 amendment to the Social Security Act (mentioned above as the new § 462(c) of that Act) was not discussed. The question of remedy was left open for decision on remand. The court indicated that by awarding respondent compensating property under the doctrine of In re Milhan, supra, a court could avoid any infringement on the Act's designation of petitioner as the "individual" recipient. 17 We granted certiorari to consider whether, under the standard of this Court's decided Supremacy Clause cases, the award to respondent impermissibly conflicts with the Railroad Retirement Act.15 435 U.S. 994, 98 S.Ct. 1644, 56 L.Ed.2d 82 (1978). III 18 Insofar as marriage is within temporal control, the States lay on the guiding hand. "The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States." In re Burrus, 136 U.S. 586, 593-594, 10 S.Ct. 850, 853, 34 L.Ed. 500 (1890). Federal courts repeatedly have declined to assert jurisdiction over divorces that presented no federal question. See, e. g., Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 50 S.Ct. 154, 74 L.Ed. 489 (1930). On the rare occasion when state family law has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has "positively required by direct enactment" that state law be pre-empted. Wetmore v. Markoe, 196 U.S. 68, 77, 25 S.Ct. 172, 176, 49 L.Ed. 390 (1904). A mere conflict in words is not sufficient. State family and family-property law must do "major damage" to "clear and substantial" federal interests before the Supremacy Clause will demand that state law be overridden. United States v. Yazell, 382 U.S. 341, 352, 86 S.Ct. 500, 507, 15 L.Ed.2d 404 (1966). 19 Nevertheless, on at least four prior occasions this Court has found it necessary to forestall such an injury to federal rights by state law based on community property concepts. In McCune v. Essig, 199 U.S. 382, 26 S.Ct. 78, 50 L.Ed. 237 (1905), federal homestead law, which permitted a widow to patent federal land that had been entered by her husband, prevailed over a daughter's asserted inheritance of her father's expectancy that the patent would issue to him. And in a trilogy of cases, the Court held that the survivorship rules in federal savings bond and military life insurance programs override community property law, absent fraud or breach of trust by the decedent. Yiatchos v. Yiatchos, 376 U.S. 306, 309, 84 S.Ct. 742, 745, 11 L.Ed.2d 724 (1964); Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962); Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950). 20 This case, like those four, has to do with a conflict between federal and state rules for the allocation of a federal entitlement. The manipulation problem that concerned the Court in Yiatchos v. Yiatchos and Free v. Bland, however, cases in which savings bonds were purchased with community property, is not present here. Railroad Retirement Act benefits from their very inception have federal overtones. Compulsory federal taxes finance them and not just the taxes that fall on the employee. The benefits more closely parallel the land homesteaded in McCune v. Essig. Because the United States owned the land, title to it could not pass in a manner contrary to federal law, 199 U.S., at 390, 26 S.Ct., at 80, even though a matter of that kind normally is left to the States. Here, California must defer to the federal statutory scheme for allocating Railroad Retirement Act benefits insofar as the terms of federal law require. The critical terms here include a specified beneficiary protected by a flat prohibition against attachment and anticipation. In Wissner v. Wissner, supra, the Court interpreted a somewhat similar provision16 to preclude a division for community property purposes, 338 U.S., at 659-660, 70 S.Ct., at 400-401, even though Congress had not spoken with the specificity that characterizes the Social Security Act amendments that inform our decision here. 21 The approach must be practical. The federal nature of the benefits does not by itself proscribe the entire field of state control. Petitioner contends, as the California Court of Appeal held, that the States may not create rights to these benefits that do not exist under federal law. Petitioner accordingly says that, because not even petitioner "owns" benefits until Congress has determined that they be paid, the Supreme Court of California erred in describing respondent as a present owner of an expectancy in those benefits. Such rights in the abstract, however, do not necessarily cause the injury to federal law that the Supremacy Clause forbids. The pertinent questions are whether the right as asserted conflicts with the express terms of federal law and whether its consequences sufficiently injure the objectives of the federal program to require nonrecognition. A. 22 The first way in which respondent seeks to vindicate her community property interest, one particularly pressed at oral argument, Tr. of Oral Arg. 32, 44, is that the Superior Court would retain jurisdiction and order petitioner to pay her an appropriate portion of his benefit, or its monetary equivalent, as petitioner receives it. See In re Brown, 15 Cal.3d 838, 848-850, 544 P.2d 561, 567-568 (1976). That course, however, runs contrary to the language and purpose of § 231m and would mechanically deprive petitioner of a portion of the benefit Congress, in § 231d(c)(3), indicated was designed for him alone. 23 Section 231m plays a most important role in the statutory scheme. Like anti-attachment provisions generally, see Philpott v. Essex County Welfare Board, 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973); Wissner v. Wissner, supra, it ensures that the benefits actually reach the beneficiary. It pre-empts all state law that stands in its way. It protects the benefits from legal process "[n]otwithstanding any other law . . . of any State." Even state tax-collection laws must bow to its command, for Congress added that phrase in an amendment designed in part to ensure that neither federal nor state tax collectors would encroach on the distribution of benefits.17 It prevents the vagaries of state law from disrupting the national scheme, and guarantees a national uniformity that enhances the effectiveness of congressional policy. 24 Congress carefully targeted the benefits created by the Railroad Retirement Act. It even embodied a community concept to an extent. The Act provides a benefit for a spouse, but the spouse need not have worked for a carrier. The spouse's sole contribution is to the marital community that supports the employee who has made railroad employment a career. Congress purposefully abandoned that theory, however, in allocating benefits upon absolute divorce. In direct language the spouse is cut off: 25 "The entitlement of a spouse of an individual to an annuity . . . shall end on the last day of the month preceding the month in which . . . the spouse and the individual are absolutely divorced." 45 U.S.C. § 231d(c)(3). 26 The choice was deliberate. When the Act was revised in 1974, a proposal was made to award a divorced spouse a benefit like that available to a divorced spouse under the Social Security Act. The labor-management negotiation committee, however, rejected that proposal, and Congress ratified its decision. It based its conclusion on the perilous financial state of the Railroad Retirement Account, and the need to devote funds to other purposes.18 27 Congress has made a choice, and § 231m protects it. It is for Congress to decide how these finite funds are to be allocated. The statutory balance is delicate. Congress has fixed an amount thought appropriate to support an employee's old age and to encourage the employee to retire. Any automatic diminution of that amount frustrates the congressional objective. By reducing benefits received, it discourages the divorced employee from retiring. And it provides the employee with an incentive to keep working, because the former spouse has no community property claim to salary earned after the marital community is dissolved. Section 231m shields the distribution of benefits from state decisions that would actually reverse the flow of incentives Congress originally intended. 28 Respondent contends that this interpretation of the Act is manifestly unjust, and could not have been intended by Congress. She suggests that her contribution to the marital community merits recompense, and she argues that, as a logical matter, Congress would not have terminated the spouse's benefit upon absolute divorce if it had thought that a divorced spouse would be totally unable to assert a state-law claim against the benefits received by the employee spouse. She urges that, at least with respect to spousal claims, the Court should hold that § 231m does no more than restate the Government's sovereign immunity from burdensome garnishment suits, and so has no effect on her right to require petitioner to reimburse her as he receives benefits. She notes that several courts have adopted this construction in holding that an errant spouse could be forced to pay child and spousal support upon receipt of Railroad Retirement Act payments.19 29 We, however, cannot so lightly discard the settled view that anti-assignment statutes have substantive meaning. Section 231m goes far beyond garnishment. It states that the annuity shall not be subject to any "legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated." Its terms make no exception for a spouse. The judicial construction on which respondent relies is a child of equity, not of law. In Wissner, the Court held that a similar line of authority did not apply to community property claims: 30 "Venerable and worthy as this community is, it is not, we think as likely to justify an exception to the congressional language as specific judicial recognition of particular needs, in the alimony and support cases." 338 U.S., at 660, 70 S.Ct., at 400. 31 Now Congress has written into law the same distinction Wissner drew as a matter of policy. The 1977 amendments to the Social Security Act, by way of amending the existing § 459 and adding a new § 462, expressly override § 231m, and even facilitate garnishment for claims based on spousal support. They decline to do so, however, for community property claims. The legislative history is sparse and does not mention Wissner.20 We know, however, that the purpose of § 459 was to help children and divorced spouses get off welfare. It is therefore logical to conclude that Congress, in adopting § 462(c), thought that a family's need for support could justify garnishment, even though it deflected other federal benefit programs from their intended goals, but that community property claims, which are not based on need, could not do so. B 32 Respondent contends that she can vindicate her interest and leave the benefit scheme intact by pursuing her remedy under In re Milhan, 13 Cal.App.3d 129, 117 Cal.Rptr. 809, 528 P.2d 1145 (1974). She seeks an offsetting award of presently available community property to compensate her for her interest in petitioner's expected benefits. As petitioner's counsel bluntly put it, respondent wants the house. Tr. of Oral Arg. 5. The expected value of the benefits is such that she could get it if this remedy were adopted. 33 An offsetting award, however, would upset the statutory balance and impair petitioner's economic security just as surely as would a regular deduction from his benefit check. The harm might well be greater. Section 231m provides that payments are not to be "anticipated." Legislative history throws little light on the meaning of this word.21 In the law of trusts, however, a prohibition against anticipation is commonly understood to mean that "the interest of a sole beneficiary shall not be paid to him before a certain date." E. Griswold, Spendthrift Trusts § 512, p. 583 (2d ed. 1947).22 The Railroad Retirement Act resembles a trust in certain respects. If that definition is applied here, then the offsetting award respondent seeks would improperly anticipate payment by allowing her to receive her interest before the date Congress has set for any interest to accrue. 34 Any such anticipation threatens harm to the employee, and corresponding frustration to federal policy, over and above the mere loss of wealth caused by the offset. If, for example, a nonemployee spouse receives offsetting property, and then the employee spouse dies before collecting any benefits, the employee's heirs or beneficiaries suffer to the extent that the offset exceeds the lump-sum death benefits the Act provides. See 45 U.S.C. § 231e. Similarly, if the employee leaves the industry before retirement, and so fails to meet the "current connection with the railroad industry" requirement for certain supplemental benefits, see 45 U.S.C. § 231a(b)(1)(iv), the employee never will fully regain the amount of the offset. A third possibility, of course, is that Congress might alter the terms of the Act. In 1974, Congress eliminated certain double benefits accruing after 1982.23 If past California property settlements had been based on those benefits, then the change in the Act would have worked a multiple penalty on future recipients. By barring lump-sum community property settlements based on mere expectations, the prohibition against anticipation prevents such an obvious frustration of congressional purpose. It also preserves congressional freedom to amend the Act, and so serves much the same function as the frequently stated understanding that programs of this nature convey no future rights and so may be changed without taking property in violation of the Fifth Amendment. See Richardson v. Belcher, 404 U.S. 78, 80-81, 92 S.Ct. 254, 256-257, 30 L.Ed.2d 231 (1971); Flemming v. Nestor, 363 U.S. 603, 608-611, 80 S.Ct. 1367, 1371-1373, 4 L.Ed.2d 1435 (1960); Ruhl v. Railroad Retirement Board, 342 F.2d 662, 666 (C.A.7), cert. denied, 382 U.S. 836, 86 S.Ct. 81, 15 L.Ed.2d 78 (1965). IV 35 We are mindful that retirement benefits are increasingly important in American life and that divorce is becoming more frequent. The burden of marital dissolution may be particularly onerous for a spouse who, unlike respondent, has no expectation of receiving his or her own social security benefits. The 1975 and 1977 amendments, however, both permit and encourage garnishment of Railroad Retirement Act benefits for the purposes of spousal support, and those benefits will be claimed by those who are in need. Congress may find that the distinction it has drawn is undesirable. Indeed, Congress recently has passed special legislation to allow garnishment of Civil Service Retirement benefits for community property purposes. See Pub.L. 95-366, 92 Stat. 600. 36 For the present, however, the community property interest that respondent seeks conflicts with § 231m, promises to diminish that portion of the benefit Congress has said should go to the retired worker alone,24 and threatens to penalize one whom Congress has sought to protect. It thus causes the kind of injury to federal interests that the Supremacy Clause forbids. It is not the province of state courts to strike a balance different from the one Congress has struck. 37 The judgment of the Supreme Court of California is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. 38 It is so ordered. 39 Mr. Justice STEWART, with whom Mr. Justice REHNQUIST joins, dissenting. 40 We are asked in this case to decide whether federal law prohibits the State of California from treating as community property a divorcing husband's expectancy interest in pension benefits afforded under the Railroad Retirement Act of 1974. There can be no doubt that the State is free to treat this interest as property. Herb v. Pitcairn, 324 U.S. 117, 125-126, 65 S.Ct. 459, 462-464, 89 L.Ed. 789. The only question, therefore, is whether something in the Federal act prevents the State from applying its normal substantive property law, under which assets acquired during marriage are commonly owned by the husband and wife. From the Court's own review of the Railroad Retirement Act, it is apparent to me that the asserted federal conflict with California community property law—far from being grounded upon the concrete expressions that ordinarily are required to support a finding of federal pre-emption, see, e. g., Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424—is patched together from statutory provisions that have no relationship at all to substantive marital property rights. Indeed, the federal "policies" the Court perceives amount to little more than the commonplace that retirement benefits are designed to provide an income on retirement to the employee. There is simply nothing in the Act to suggest that Congress meant to insulate these pension benefits from the rules of ownership that in California are a normal incident of marriage. 41 * Congress, when it acts, ordinarily does so "against the background of the total corpus juris of the states." Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (citation omitted). In any case where it is claimed that a federal statute pre-empts state substantive law, therefore, it is essential to understand what the state law is. Perez v. Campbell, 402 U.S. 637, 644, 91 S.Ct. 1704, 1708, 29 L.Ed.2d 233; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 94 S.Ct. 383, 38 L.Ed.2d 348. Although the question here arises in the context of a proceeding to dissolve a marriage, the state law at issue has to do with the ownership of property during marriage. Despite the Court's repeated suggestions to the contrary, community property law is simply not a body of law that is designed to provide a "benefit" for a divorced spouse. 42 "Community of property between husband and wife is that system whereby the property which the husband and wife have is common property, that is, it belongs to both by halves." W. deFuniak & M. Vaughn, Principles of Community Property § 1, p. 1 (2d ed. 1971) (hereinafter Principles). This definition of the property rights of a married couple was first recognized in written form in 693 A.D. in Visigothic Spain, id., at § 2, p. 3, and now prevails in eight States of the Union. As we have recognized many times in the past, the community property system reflects a concept of property and of the marital relationship entirely different from that at common law. See Poe v. Seaborn, 282 U.S. 101, 51 S.Ct. 58, 75 L.Ed. 239; Bender v. Pfaff, 282 U.S. 127, 51 S.Ct. 64, 75 L.Ed. 252; Hopkins v. Bacon, 282 U.S. 122, 51 S.Ct. 62, 75 L.Ed. 249; United States v. Yazell, 382 U.S. 341, 86 S.Ct. 500, 15 L.Ed.2d 404. See generally Principles. Fundamental to the system is the premise that husband and wife are equal partners in marriage. Id., at § 2, p. 5; W. Reppy & W. deFuniak, Community Property in the United States 13 (1975). Each is deemed to make equal contributions to the marital enterprise, and each accordingly shares equally in its assets. Principles § 11.1, p. 28. 43 Under the Spanish ganancial system followed in our community property States, property acquired before the marriage or after its termination is the separate property of the spouse who acquired it. Id., at § 1, p. 1; Prager, The Persistence of Separate Property Concepts in California's Community Property System, 1849-1975, 24 UCLA L.Rev. 1, 6 (1976). All property acquired during the marriage, however, is presumed to be community property. See, e. g., Meyer v. Kinzer, 12 Cal. 247, 251-252. The presumption is regarded as a rule of substantive property law, not one of procedure or evidence. Nilson v. Sarment, 153 Cal. 524, 96 P. 315. Cf. Poe v. Seaborn, supra. In general, all property which stems from the labors of either spouse during the marriage, "irrespective of direct contributions to its acquisition or the condition of title" is, in the absence of an agreement between the spouses to the contrary, community property. Prager, supra, at 6. The spouses are deemed to have contributed equally to the acquisition of the property, regardless of the actual division of labor in the marriage and regardless of whether only one spouse formally "earned" it. Ibid.1 44 The interests of the spouses in the assets of the marital community are "during continuance of the marriage relation . . . present, existing and equal interests." Cal.Civ.Code Ann. § 5105 (West Supp.1978). Upon dissolution of the marriage, each possesses an equal and absolute right to his or her one-half interest. Meyer v. Kinzer, supra, 12 Cal., at 251-252; In re Marriage of Brown, 15 Cal.3d 838, 848, 126 Cal.Rptr. 633, 544 P.2d 561, 567. The right of each spouse to his or her share of the community assets, then, is a substantive property right entirely distinct from the right that a spouse might have to the award of alimony upon dissolution of the marriage. A community property settlement merely distributes to the spouses property which, by virtue of the marital relationship he or she already owns. An alimony award, by contrast, reflects a judgment that one spouse—even after the termination of the marriage—is entitled to continuing support by the other. 45 In California, retirement benefits attributable to employment during marriage are community property. In re Marriage of Brown, supra. As long as the employee spouse has some reasonable expectancy of receiving the benefits in the future, the nonemployee spouse's interest may attach even if the pension rights are not formally "vested." Ibid. Pension rights created by act of the state legislature have been treated as community property by the California courts,Cheney v. City and County of San Francisco, 7 Cal.2d 565, 61 P.2d 754, as have federal military pension benefits, In re Marriage of Fithian, 10 Cal.3d 592, 111 Cal.Rptr. 369, 517 P.2d 449, and benefits afforded by the federal civil service retirement plan. In re Marriage of Peterson, 41 Cal.App.3d 642, 115 Cal.Rptr. 184. The California Supreme Court in this case, having found no conflict with the express provisions or policies of the Railroad Retirement Act, applied these settled rules of state marital property law to the petitioner's expectation of receiving the retirement benefits afforded by the Act. The State's decision to treat as property benefits that arguably are not "vested" is one that it is free to make. The only question for this Court, then, is whether the State can, consistently with the federal Act, follow its normal substantive community property law in dealing with these prospective benefits. II 46 It is clear that Congress, when it established the railroad retirement system, did not purport to regulate the marital property rights of workers covered by the Act. Federal pre-emption, then, must be based on a perceived conflict between the provisions of the Act and the substantive law of California. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, supra, 414 U.S., at 127, 94 S.Ct., at 390; New York Dept. of Social Services v. Dublino, 413 U.S. 405, 423 n. 29, 93 S.Ct. 2507, 2518, 37 L.Ed.2d 688. When the state substantive law in question regulates family and family-property arrangements—matters that traditionally have been left to local law, see In re Burrus, 136 U.S. 586, 588-594, 10 S.Ct. 850, 34 L.Ed. 500; De Sylva v. Ballentine, 351 U.S. 570, 580, 76 S.Ct. 974, 100 L.Ed. 1415—state interests "should be overridden by the federal courts only where clear and substantial interests of the National Government, which cannot be served consistently with respect for such state interests, will suffer major damage if the state law is applied." United States v. Yazell, 382 U.S., at 352, 86 S.Ct., at 507 (emphasis added). The full force of this rule applies no less when the property in question consists of federally created benefits. De Sylva v. Ballentine, supra, at 580-582, 76 S.Ct., at 979-981. Cf. Wallis v. Pan American Petroleum Corp., 384 U.S., at 68, 86 S.Ct., at 1304. 47 Consistently with this principle, the cases that have held that a State's community property law was pre-empted have depended upon specific provisions in the federal statute governing the ownership of the property involved and, as well, upon a finding that application of the state law would substantially disserve demonstrable federal policies. Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424; Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 82 L.Ed. 180. In Wissner, for example, the Court held that California could not treat the proceeds of a National Service Life Insurance policy as community property even though it assumed that the policy had been purchased with community assets. The decedent soldier in that case had, without obtaining his wife's consent, designated his mother and father as the beneficiaries under his policy. The Court's conclusion was based primarily upon a section of the National Service Life Insurance Act that specifically gave the insured the "right to designate the beneficiary or beneficiaries of the insurance" and "at all times" the "right to change" that designation. See 38 U.S.C. § 802(g) (1946 ed.). From this explicit provision, the Court found that Congress had "spoken with force and clarity" in directing that the proceeds were to belong to the "named beneficiary and no other." 338 U.S., at 658, 70 S.Ct., at 400. California's judgment awarding onehalf of the proceeds to the wife, the Court said, would nullify the choice Congress had expressly given to the soldier, id., at 659, 70 S.Ct., at 400, and frustrate the federal purpose of "enhanc[ing] the morale of the serviceman," id., at 660, 70 S.Ct., at 401. The Court also noted that the state-court judgment, insofar as it ordered the "diversion of future payments" as soon as they were paid to the beneficiary, was contrary to a provision in the Act protecting such payments from "seizure . . . either before or after receipt by the beneficiary." Id., at 659, 70 S.Ct., at 400. 48 In Free v. Bland, a treasury bond purchased by a husband with community assets designated the owner as husband "or" wife. Federal regulations explicitly provided that the survivor of an "or" form bond was to be the absolute owner. This directive coupled with the substantial federal interest in establishing uniform rules governing the transfer of bonds, the Court found sufficient to override state community property law. 49 Essential to the finding of pre-emption in the Wissner and Bland cases was a determination that the ownership of the asset involved had, by express federal directive, been defined in a manner inconsistent with state community property law. In each case, explicit provisions of federal law not only conflicted with principles of state law but also created property rights at variance with the rights that normally would have been created by local property law.2 III 50 In the Railroad Retirement Act of 1974 Congress did not with "force and clarity" direct that the employee's pension benefits should not be subject to the substantive community property law of California. A. 51 The Railroad Retirement Act contains no express provisions governing the ownership rights that may or may not attach to the pension interest of a married employee. The provisions governing the basic annuity are in themselves neutral. Both 45 U.S.C. § 231a(a)(1), which defines the eligibility requirements for the employee's annuity, and § 231b, which contains the provisions governing the computation of annuities, state simply that the annuity is that "of the individual" employee. This indication that the benefit belongs to the employee is in this context wholly unremarkable. The congressional decision to "title" this federal benefit in the worker cannot, without more, be taken as evidence that Congress intended to disturb a body of state law that obtains whether or not the asset was earned by or is titled in one or the other spouse. 52 The benefit structure of the Act is also neutral. To be sure, Congress has chosen to provide a separate and additional benefit for spouses of retired workers. 45 U.S.C. §§ 231a(c)(3)(i), and to terminate that benefit upon divorce. 45 U.S.C. § 231d(c)(3). These provisions, however, do not preclude a rule of state property law that treats an annuity payable to either spouse as an asset of the marital community. The congressional decision to terminate the separate spousal benefit upon divorce in no way conflicts with that rule, for the community property interest—apart from the fact that it is an ownership interest and not a "benefit" for a divorced spouse attaches only to that portion of an annuity attributable to labor performed during the marriage. And the provision of the separate and additional spousal benefit surely does not itself indicate an intent to displace community property law. The legislative history demonstrates quite clearly that Congress created this benefit in 1951 in order to respond to the greater financial needs of retired workers who are married. H.R.Rep.No.976, 82d Cong., 1st Sess. (1951); U.S.Code Cong. & Admin.Service 1951, p. 2529. The original Act afforded an annuity only for the individual employee. The amount of the benefit was tied to length of service and to salary, with no account taken of marital status upon retirement. See Report of the Commission on Railroad Retirement, H.R.Doc.No.92-350, p. 7 (1972). When Congress increased the amounts available to employees with families by providing benefits for spouses, its purpose was simply to increase the level of benefits for employees with families, not to ordain the ownership of property within the family. B 53 The only provision in the Act that even arguably might conflict with California community property law is § 231m, the anti-attachment provision. It states: 54 "Notwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated." 55 Yet this language certainly does not speak to substantive ownership interests that may or may not exist in annuities or pension payments. Like similar language often included in spendthrift trusts, it seems to have been designed to protect the benefits from the reach of creditors. See generally E. Griswold, Spendthrift Trusts (2d ed.1947). The provision thus has no real relevance to the question whether the annuity is the property of the marital community.3 For under community property law, the husband and wife are not one another's creditors; they are co-owners. Upon dissolution of the marital community, the community property is divided, not adjudicated as indebtedness. 56 Neither the prohibition against "garnishment" nor that against "attachment" bears on an action to enforce a community property decree. Both terms govern remedies, not ownership rights, and the remedies themselves traditionally have been unavailable in an action grounded upon the theory that the property at issue "belongs" to the claimant. See generally J. Rood, Law of Garnishment (1896); S. Kneeland, Law of Attachments (1885).4 The prohibition against "assignment" of pension payments is equally irrelevant to the question in this case. A determination that a particular asset is community property is clearly not an "assignment" of that property from one spouse to another. It is no more than a conclusion that the property interest—from the moment it arose—belonged equally to the two parties to the marriage. Principles § 97. 57 It is no doubt for these reasons that the Court places no great reliance on the "garnishment," "attachment," or "assignment" provisions of § 231m. The Court does, however, discern a major conflict between the clause prohibiting "anticipation" of payments and the California community property law. Yet it seems to me demonstrably clear that this provision of § 231m is no more relevant to the issue in this case than the "garnishment," "attachment," and "assignment" provisions. 58 There is, as the Court acknowledges, no legislative history to explain the meaning of the "anticipation" restraint in the Railroad Retirement Act. It can only be assumed, therefore, that Congress intended that it was to operate, as at common law,5 to ensure that the trustees of the fund would not make or be compelled to make lump-sum payments inconsistent with the periodic benefits provided by statute. See Griswold, supra, § 512. Like the other terms of § 231m, its import is thus procedural, not substantive. Griswold, supra, § 512. 59 The Court suggests that the "anticipation" restraint conflicts with California community property law because state law permits a court, upon dissolution of a marriage, to consider the value of benefits that are not yet due and then to make the actual award of community property out of other assets that are currently available. The reasoning seems to be that if an employee cannot "anticipate" benefits by securing a lump-sum award, the employee's spouse is similarly prevented from "anticipating" a community property interest by receiving assets of equal value from the marital estate. This reasoning ignores the express wording of § 231m. The clause prohibits anticipation of "the payment" of a pension or annuity. A state judgment that considers the value of the pension interest acquired during marriage and satisfies that interest by ordering the transfer of other community assets does not anticipate a pension "payment." There is, accordingly, no conflict between such a judgment and § 231m, for it has no impact at all upon the timing of payments to the employee and is therefore not at all incompatible with the distribution system established by Congress. 60 The Court also suggests that the "no anticipation" provision of § 231m was designed to preserve congressional "freedom to amend the Act." Yet it has never been established that Congress is free to terminate or reduce the benefits afforded by the railroad retirement system. Unlike the Social Security Act, see Flemming v. Nestor, 363 U.S. 603, 608-611, 80 S.Ct. 1367, 1371-1373, 4 L.Ed.2d 1435, the Railroad Retirement Act contains no express provision permitting Congress to terminate it. Indeed, the legislative history of the Act suggests that it was established to provide security to railroad workers whose benefits under private pension programs had frequently been treated as discretionary payments. See H.R.Rep.No.1711, 74th Cong., 1st Sess., 10-11 (1935). The drafters of the original legislation expressly stated that one of the important features of any retirement plan was a guarantee to the worker of an "absolute" right to receive the pension. Id., at 11. It thus seems obvious that the "no anticipation" provision—included as it was in the 1935 version of the Act—had no relationship whatever to any possibility that Congress might try to terminate or reduce the benefits payable under the Act. Whether Congress could ever do so is an open question, a question neither presented nor properly to be decided in the present case. 61 Finally, the Court suggests that "anticipation" would harm an employee who leaves the industry before retirement and thus is unable to "regain" the amount of the offset. But this difficulty becomes wholly imaginary when the nature of the community property award is understood. A spouse receives only one-half the value of the pension interest attributable to work performed by the other spouse during the marriage. The "current connection with industry" requirement for supplemental benefits referred to by the Court obtains at the time the employee becomes eligible for current pension payments. If the employee is still working at the time the marriage is dissolved, a California court would be obligated to give heed to the benefit provisions of the Act in appraising the value of the interest acquired by the employee's spouse during the marriage. And surely occasional problems in assessing the precise value of the community property—problems with which the courts of California routinely deal—cannot provide a basis for the Court's finding of pre-emption.6 IV 62 The Railroad Retirement Act, unlike the statutes involved in Wissner v. Wissner, and Free v. Bland, thus contains no evidence that Congress intended to withdraw the benefits at issue from the reach of California community property law. Believing, as I do, that the pre-emption perceived by the Court is entirely of its own making, I respectfully dissent. 1 H.R.Rep.No.1711, 74th Cong., 1st Sess., 10 (1935). 2 Railroad Retirement Tax Act, 26 U.S.C. §§ 3201-3233. 3 This Court ruled that the Railroad Retirement Act of 1934 was unconstitutional and did so on the ground that it took property in violation of the Fifth Amendment and exceeded Congress' power under the Interstate Commerce Clause. Railroad Retirement Board v. Alton R. Co., 295 U.S. 330, 55 S.Ct. 758, 79 L.Ed. 1468 (1935). Congress then promptly enacted substantially similar legislation in 1935 based on its power to tax and spend to promote the general welfare. 49 Stat. 967 and 974. The operation of that legislation was enjoined. Alton R. Co. v. Railroad Retirement Board, 16 F.Supp. 955 (DC1936). After Presidential intervention and extensive negotiation, a bill was produced that became the Railroad Retirement Act of 1937. 50 Stat. 307. That Act was amended several times to make it conform more closely to the existing Social Security Act. In 1970 Congress established a Commission on Railroad Retirement to study the actuarial soundness of the system. The Commission submitted a report, The Railroad Retirement System: Its Coming Crisis, H.R.Doc.No.92-350 (1972). Further industry negotiation produced the bill that became the 1974 Act. See id., at 55-75; Hearing on Women and Railroad Retirement before the Subcommittee on Retirement Income and Employment of the Select House Committee on Aging, 94th Cong., 1st Sess. (1976) (Hearing on Women and Railroad Retirement). 4 See H.R.Doc.No.92-350 (1972); Skolnik, Restructuring the Railroad Retirement System, 38 Soc.Sec.Bull., No. 4, p. 23 (1975). 5 "The entitlement of a spouse of an individual to an annuity under section 231a(c) of this title shall end on the last day of the month preceding the month in which . . . the spouse and the individual are absolutely divorced . . . ." 6 The Social Security Act specifically provides: "The right to alter, amend, or repeal any provision of this [Act] is reserved to the Congress." 49 Stat. 648, 42 U.S.C. § 1304. While the Railroad Retirement Act does not expressly incorporate that very language, it definitely does so indirectly, because the minimum Railroad Retirement Act benefit is the benefit that would have been received under the Social Security Act. See 45 U.S.C. § 231b(a)(1). 7 The goal of this provision, in the words of a union negotiator who testified, was "to make it sure that the annuitant gets the pension." Hearings on S.2395 before the Senate Committee on Interstate Commerce, 75th Cong., 1st Sess., 29 (1937) (statement of George M. Harrison, president of the Brotherhood of Railway Clerks). 8 The consent provision reads in its entirety: "Notwithstanding any other provision of law, effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States (including any agency or instrumentality thereof and any wholly owned Federal corporation) to an individual, including members of the armed services, shall be subject, in like manner and to the same extent as if the United States were a private person, to legal process brought for the enforcement, against such individual of his legal obligations to provide child support or make alimony payments." 9 The entire definition reads: "The term 'alimony', when used in reference to the legal obligations of an individual to provide the same, means periodic payments of funds for the support and maintenance of the spouse (or former spouse) of such individual, and (subject to and in accordance with State law) includes but is not limited to, separate maintenance, alimony pendente lite, maintenance, and spousal support; such term also includes attorney's fees, interest, and court costs when and to the extent that the same are expressly made recoverable as such pursuant to a decree, order, or judgment issued in accordance with applicable State law by a court of competent jurisdiction. Such term does not include any payment or transfer of property or its value by an individual to his spouse or former spouse in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses." 10 See also Cal.Civ.Code Ann. § 4800 (West Supp.1978); W. deFuniak & M. Vaughn, Principles of Community Property § 1 (2d ed. 1971). 11 Ibid. Only a small minority of common-law States still adhere strictly to the view that title alone controls the distribution of property on divorce. Foster & Freed, From a Survey of Matrimonial Laws in the United States: Distribution of Property Upon Dissolution, 3 Comm.Prop.J. 231, 232 (1976). 12 Reporter's transcript on appeal in No. D 860954 (Super.Ct. Los Angeles) 23; Tr. of Oral Arg. 32. 13 Petition for Hearing in No. LA 30712 (Cal.Sup.Ct.) p. 14. 14 In re Fithian, 10 Cal.3d 592, 111 Cal.Rptr. 369, 517 P.2d 449, cert. denied, 419 U.S. 825, 95 S.Ct. 41, 42 L.Ed.2d 48 (1974) (federal military retirement pay); cf. In re Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976) (nonvested interest in a private employer's retirement plan); see generally Martin, Social Security Benefits for Spouses, 63 Cornell L.Rev. 789, 830-836 (1978); Reppy, Community and Separate Interests in Pensions and Social Security Benefits after Marriage of Brown and ERISA, 25 UCLA L.Rev. 417-421, 429-443, 483-511 (1978) (discussing cases) (hereinafter Interests in Pensions). 15 Texas courts have divided on the question whether an expectation of receiving Railroad Retirement Act benefits is community property. Compare Allen v. Allen, 363 S.W.2d 312 (Tex.Civ.App., Houston, 1962) with Eichelberger v. Eichelberger, 557 S.W.2d 587 (Tex.Civ.App., Waco, 1977) (writ dismissed). 16 The statute provided that payments to the named beneficiary "shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary." 49 Stat. 609, 38 U.S.C. § 454a (1946 ed.). 17 Senator John F. Kennedy described the amendment on the floor of the Senate: "[The amendment] makes it clear that railroad retirement and unemployment benefits are still exempt from Federal or State taxation, garnishment and attachment, a clarification made necessary by an inadvertent oversight in last year's new tax law and doubts raised in several States." 101 Cong.Rec. 11772 (1955). See S.Rep.No.1040, 84th Cong., 1st Sess., 9-10 (1955); Hearing on S.1589 before the Subcommittee on Railroad Retirement of the Senate Committee on Labor and Public Welfare, 84th Cong., 1st Sess., 29-30 (1955) (remarks of Lester P. Schoene, representing all standard railway labor organizations). See also Rev.Rul. 70-343, 1970-2 Cum.Bull. 4. 18 Hearing on Women and Railroad Retirement 5. The 1972 Report of the Commission on Railroad Retirement said that industry employment, 1.68 million during World War II, had fallen to 582,000 by the first quarter of 1972. The system's beneficiaries already outnumbered the employees who were contributing. The Commission said that, without the changes that it suggested and that Congress embodied in the 1974 Act, the system's funds would be consumed by 1988. H.R.Doc.No.92-350, pp. 10, 12, 18 (1972). 19 See LaFarr v. LaFarr, 132 Vt. 191, 315 A.2d 235 (1974); Heuchan v. Heuchan, 38 Wash.2d 207, 228 P.2d 470 (1951); Commonwealth v. Berfield, 160 Pa.Super. 438, 51 A.2d 523 (1947). (Before the 1974 revision of the Act, the § 231m exemption was codified as § 228l. See 45 U.S.C. § 228l (1970 ed.).) The dissenting opinion, post, at 598-600, argues that § 231m is irrelevant because respondent is a co-owner. Surely, however, inability to use any "legal process under any circumstances whatsoever" to enforce her asserted rights is a severe limitation on the nature of any ownership interest she might otherwise enjoy under state law. 20 Section 459, added to the Social Security Act in 1975, overrides § 231m for "alimony" claims. It was part of a package of measures primarily designed to combat increases in welfare payments resulting from an inability to compel payment of support obligations from solvent but unwilling parents. S.Rep.No.93-1356, pp. 42-43 (1974); U.S.Code Cong. & Admin.News 1974, p. 8133. After the section's adoption, courts disagreed on whether the alimony that could be made the subject of garnishment included community property. Compare United States v. Stelter, 553 S.W.2d 227, 229 (Tex.Civ.App.1977), rev'd, 567 S.W.2d 797 (Tex.1978); Williams v. Williams, 338 So.2d 869 (Fla.App.1976), with Marin v. Hatfield, 546 F.2d 1230 (C.A.5 1977); Kelley v. Kelley, 425 F.Supp. 181, 183 (W.D.La.1977). In 1977, Congress added § 462(c) and resolved that question. The amendment was the subject of a prior Committee Report, S.Rep.No.94-1350 (1976). Senator Nunn said that its purpose was to clarify prior law. Neither he nor the Committee explained why property divisions were excluded. See 123 Cong.Rec. 12909-12914, 12958-12959 (1977). Companion measures both established procedures to make garnishment more efficient, and amended § 303 of the Consumer Credit Protection Act, 15 U.S.C. § 1673(b), to pre-empt state law by limiting garnishments to less than 65% of the remuneration received for employment including retirement benefits. Pub.L.95-30, Tit. V., § 501(e)(2), 91 Stat. 161. 21 The original statute, enacted in 1934, contained a prohibition against attachment but not the phrase "nor shall the payment thereof be anticipated." Act of June 27, 1934, ch. 868, § 11, 48 Stat. 1288. The quoted phrase was added without explanation in 1935 and carried over in each later re-enactment of the statute. Act of Aug. 29, 1935, ch. 812, § 10, 49 Stat. 973; Act of June 24, 1937, ch. 382, § 12, 50 Stat. 316; Act of Oct. 16, 1974, Pub.L.93-445, § 14, 88 Stat. 1345. The Committee Reports attach no special meaning to it. See, e. g., H.R.Rep.No.1711, 74th Cong., 1st Sess., 12 (1935). It was mentioned during the hearings, but not discussed. See Hearing on H.R. 6956 before the House Committee on Interstate and Foreign Commerce, 75th Cong., 1st Sess., 69 (1937); Hearings on S.3151 before a Subcommittee of the Senate Committee on Interstate Commerce, 74th Cong., 1st Sess., 16 (1935). Congress has employed an identical phrase in the Railroad Unemployment Insurance Act, 52 Stat. 1096, as amended, 45 U.S.C. § 352(e). 22 In Hetrick v. Reading Co., 39 F.Supp. 22 (NJ 1941), the prohibition against anticipation was applied in this sense. The court held that a defendant employer could not offset a tort claim by the amount the plaintiff expected to receive in Railroad Retirement Act disability benefits. 23 See 45 U.S.C. § 231b(f)(2); S.Rep.No.93-1163 (1974); H.R.Rep.No.93-1345 (1974); U.S.Code Cong. & Admin.News 1974, p. 5702. For a similar catalog of uncertainties surrounding the payment of future social security benefits, see Interests in Pensions 529-533. 24 In this case, Congress has granted a separate spouse's benefit, and has terminated that benefit upon absolute divorce. Different considerations might well apply where Congress has remained silent on the subject of benefits for spouses, particularly when the pension program is a private one which federal law merely regulates. See Employee Retirement Income Security Act of 1974, 88 Stat. 829, 29 U.S.C. § 1001 et seq. Our holding intimates no view concerning the application of community property principles to benefits payable under programs that possess these distinctive characteristics. 1 This rule obtains regardless of the relative wealth of the parties. As stated in an early compilation of the Spanish civil law: "Although the husband may have more than the wife, or the wife more than the husband, in realty or in personalty, let the fruits be common to both." Novisima Recopilacion, Book 10, Tit. 4, Law 3, quoted in Principles § 66, p. 143 n. 72. 2 The Court suggests that the benefits here "more closely parallel" the federal homestead land at issue in McCune v. Essig, 199 U.S. 382, 26 S.Ct. 78, 50 L.Ed. 237, than those involved in Wissner and Bland. Ante, at 582. The pre-emption principles applied in McCune, however, were no less rigorous than those articulated in the more recent cases. In McCune, a husband and wife had settled land subject to the homestead laws, and the husband had filed an appropriate claim. He died intestate before a patent was issued. Under the intestate laws of Washington, a community property State, the husband's interest would have passed to his daughter. Two provisions in the Homestead Act, however, established specific rules governing the method of completing a claim. One gave to the widow the right to fulfill the settlement terms and the entitlement to the patent. 199 U.S., at 388, 389, 26 S.Ct., at 79-80. Another expressly provided that the fee was to "inure to the benefit of" children only if the mother and father were dead. Id., at 389, 26 S.Ct., at 80. Noting that "[I]t requires an exercise of ingenuity to establish uncertainty in these provisions," the Court held that Washington law could not apply to reverse the order of ownership established in the statute. Ibid. In McCune, then, no less than in Wissner and Bland, the Court based its finding of pre-emption upon federal provisions that were "express" and "clear." 3 Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424, is not to the contrary. The Court did not there hold that the anti-attachment clause in the National Service Life Insurance Act had an effect on the substantive ownership interest in the proceeds. The Court simply reasoned that Congress might have included the clause in order to protect the serviceman's unrestricted choice of beneficiary. That choice was clearly established in a different and "controlling" provision of the Act. Id., at 658, 70 S.Ct., at 399. 4 The 1975 amendment to the Social Security Act permitting those to whom alimony or child-support obligations are owed to garnish federal benefits to satisfy their claims, 42 U.S.C. § 659, hardly transforms these terms of § 231m into provisions that bear on the ownership of railroad retirement benefits. Section 659 was enacted as part of a general bill designed to keep dependents of solvent but unwilling parents receiving federal benefits off the welfare rolls. S.Rep.No.93-1356, pp. 42-43 (1974). With respect to actions for the enforcement of family-support obligations, the new provision waives the sovereign immunity of the United States and overrides contrary provisions in federal social insurance and retirement statutes. There is, however, nothing in either its language or legislative history to suggest that Congress, when it enacted § 659, intended to make a statement about substantive property rights that might generally affect the various federal benefit systems. Such an intent is not to be found either in the 1977 definitional amendment to § 659, in which Congress expressly stated that "alimony" was not meant to include payments or transfers "in compliance with any community property settlement." On its face, the amendment, § 462(c), simply states a legal truism. An alimony award is entirely distinct from a community property settlement. The only legislative history to explain the definitional amendment is the sponsor's statement that its intent was merely to clarify. 123 Cong.Rec. 12913 (1977). The Court acknowledges that before the amendment some decisions had construed the "alimony" exception to encompass community property awards. Ante, at 587 n. 20. One might infer, therefore, that the amendment had the limited purpose of restating the obvious in order to quell unnecessary litigation. Whatever its purpose, it is clear that § 462(c) could not have been intended to insulate railroad retirement benefits from the reach of state community property law. Addressed as it is to a provision waiving the immunity of the Federal Government to suit, it can mean no more than that a claimant under a community property award cannot proceed directly against the United States. 5 This type of restraint is thought to have been developed in the late 18th century as a means of protecting the separate equitable estate of a married woman. Hart, The Origin of the Restraint Upon Anticipation, 40 L.Q.Rev. 221 (1924). It prevented the trustee of her estate from making income payments before they were due or from honoring transfers by the beneficiary that would have had the effect of forcing such payments and thereby dissolving the trust established for her protection. Ibid. In the modern spendthrift trust, it has the similar function of preventing the trustee from making lump-sum payments in derogation of the periodic payments or time restrictions provided for in the trust instrument. See E. Griswold, Spendthrift Trusts § 512 (2d ed.1947). 6 The Court also observes that "anticipation" of a community property interest would harm the employee to the extent that the award to the employee's spouse might exceed the lump-sump benefits payable to the employee's heirs should the employee die before collecting benefits. But survivor benefits payable under the Act are wholly distinct from the community property interest involved here.

910

440 U.S. 1 99 S.Ct. 887 59 L.Ed.2d 100 E. Richard FRIEDMAN et al.v.N. Jay ROGERS et al. N. Jay ROGERS et al., Appellants, v. E. Richard FRIEDMAN et al. TEXAS OPTOMETRIC ASSOCIATION, INC., Appellant, v. N. Jay ROGERS et al. Nos. 77-1163, 77-1164 and 77-1186. Argued Nov. 8, 1978. Decided Feb. 21, 1979. Rehearings Denied April 16, 1979. See 441 U.S. 917, 99 S.Ct. 2018. Syllabus Section 5.13(d) of the Texas Optometry Act prohibits the practice of optometry under a trade name and § 2.02 requires that four of the six members of the Texas Optometry Board, which regulates the practice of optometry in the State, be members of the Texas Optometric Association (TOA), a professional organization of optometrists. Rogers, a Board member but ineligible for membership in TOA because of noncompliance with the code of ethics required for membership, brought an action challenging the constitutionality of these provisions. A three-judge District Court held that § 2.02 is related reasonably to the State's purpose of ensuring enforcement of the Act and therefore constitutional under the Equal Protection Clause of the Fourteenth Amendment, but that § 5.13(d) is an unconstitutional restriction of the "free flow of commercial information" under the First Amendment. Held: 1. Section 5.13(d) is constitutional. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346, and Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810, distinguished. Pp. 8-16. (a) The use of a trade name in connection with optometrical practice conveys no information about the price and nature of the services offered by an optometrist until it acquires meaning over a period of time by associations formed in the minds of the public between the name and some standard of price or quality. Because these ill-defined associations of trade names with price and quality information can be manipulated by the users of trade names, there is a significant possibility that trade names will be used to mislead the public. Pp. 11-13. (b) The State's interest in protecting the public from such deceptive and misleading use of optometrical trade names is substantial and well demonstrated in this case, and the prohibition against the use of trade names is a constitutionally permissible regulation in furtherance of this interest. Rather than stifling commercial speech, such prohibition ensures that information regarding optometrical services will be communicated more fully and accurately to consumers than it had been in the past. Pp. 13-16. 2. Section 2.02 is also constitutional. Pp. 17-19. (a) The history of the Texas Optometry Act shows that such provision is related reasonably to the State's legitimate purpose of securing a regulatory board that will administer the Act faithfully. Pp. 17-18. (b) While Rogers has a constitutional right to a fair and impartial hearing in any disciplinary proceeding conducted against him by the Texas Optometry Board, his challenge to the fairness of the Board does not arise from any disciplinary proceeding against him. Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488, and Wall v. American Optometric Assn., 379 F.Supp. 175 (ND Ga.), summarily aff'd sub nom. Wall v. Hardwick, 419 U.S. 888, 95 S.Ct. 166, 42 L.Ed.2d 134, distinguished. Pp. 18-19. D.C., 438 F.Supp. 428, affirmed in part and reversed and remanded in part. Larry Niemann, Austin, Tex., for Texas Optometric Association, Inc. Dorothy Prengler, Austin, Tex., for E. Richard Friedman et al. and by Robert Q. Keith, Beaumont, Tex., for N. J. Rogers et al. Mr. Justice POWELL delivered the opinion of the Court. 1 Texas law prohibits the practice of optometry under a trade name. It also requires that four of the six members of the State's regulatory board, the Texas Optometry Board, be members of the Texas Optometric Association, a professional organization of optometrists. A three-judge District Court sustained the constitutionality of the statute governing the composition of the Texas Optometry Board against a challenge based on the First and Fourteenth Amendments. But it held that the prohibition of the practice of optometry under a trade name ran afoul of First Amendment protection of commercial speech. 438 F.Supp. 428 (ED Tex.1977). These appeals and the cross-appeal bring both of the District Court's holdings before the Court.1 2 * The Texas Legislature approved the Texas Optometry Act (Act) in 1969, repealing an earlier law governing the practice of optometry in the State. Section 2.01 of the Act establishes the Texas Optometry Board (Board) and § 2.02 prescribes the qualifications for Board members.2 The Board is responsible for the administration of the Act, and has the authority to grant, renew, suspend, and revoke licenses to practice optometry in the State.3 The Act imposes numerous regulations on the practice of optometry,4 and on several aspects of the business of optometry.5 Many of the Act's business regulations are contained in § 5.13, which restricts fee splitting by optometrists and forbids an optometrist to allow his name to be associated with any optometrical office unless he is present and practicing there at least half of the hours that the office is open or half of the hours that he practices, whichever is less. Section 5.13(d), at issue here, prohibits the practice of optometry under an assumed name, trade name, or corporate name.6 3 The dispute in this case grows out of the schism between "professional" and "commercial" optometrists in Texas. Although all optometrists in the State must meet the same licensing requirements and are subject to the same laws regulating their practices, they have divided themselves informally into two groups according to their divergent approaches to the practice of optometry.7 Rogers, an advocate of the commercial practice of optometry and a member of the Board, commenced this action by filing a suit against the other five members of the Board. He sought declaratory and injunctive relief from the enforcement of § 2.02 of the Act, prescribing the composition of the Board, and § 5.13(d) of the Act, prohibiting the practice of optometry under a trade name. 4 Section 2.02 of the Act requires that four of the six members of the Board must be members of a state organization affiliated with the American Optometric Association (AOA). The only such organization is the Texas Optometric Association (TOA), membership in which is restricted to optometrists who comply with the Code of Ethics of the AOA. Rogers and his fellow commercial optometrists are ineligible for membership in TOA because their business methods are at odds with the AOA Code of Ethics. In his complaint, Rogers alleged that he is deprived of equal protection and due process because he is eligible for only two of the six seats on the Board, and because he is subject to regulation by a Board composed primarily of members of the professional faction. Regarding § 5.13(d), Rogers alleged that while the section prohibits optometrists from practicing under trade names, the prohibition is not extended to ophthalmologists. Rogers claimed that this disparity of treatment denies him the equal protection of the laws, as he is denied the right to conduct his optometrical practice as he has in the past under the name "Texas State Optical." 5 The three-judge District Court that was convened to consider Rogers' challenge to the constitutionality of the Texas law granted two motions to intervene. The TOA intervened as a defendant, adopting without alteration the position taken by the individual members of the Board whom Rogers originally named as defendants. The Texas Senior Citizens Association (TSCA) intervened on behalf of Rogers. This intervenor claimed that its members have a Fourteenth Amendment right to representation of the general public on the Board, and that because § 2.02 subjects "commercial" optometrists to regulation by "professional" optometrists, the statute discourages optometrists from communicating truthful commercial information to TSCA members. The TSCA also urged that the prohibition of the practice of optometry under a trade name violates the First Amendment right of its members to receive information about the availability of optometrical services. 6 The District Court found that § 2.02 is related reasonably to the State's purpose of ensuring enforcement of the Act and therefore constitutional under the Equal Protection Clause. As to the claim that a Board dominated by professional optometrists would treat commercial optometrists unfairly, the District Court held that any claim that non-TOA members did not receive due process when called before the Board could be settled when and if the problem arose.8 Concluding that the proffered justifications for § 5.13(d) were outweighed by the importance of the commercial speech in question, the District Court held § 5.13(d) unconstitutional and enjoined its enforcement by the Board. 7 In No. 77-1164, Rogers and the TSCA appeal from the District Court's decision upholding the constitutionality of § 2.02. In Nos. 77-1163 and 77-1186, the members of the Board other than Rogers, and the TOA, respectively, appeal from the decision striking down § 5.13(d) as unconstitutional. We noted probable jurisdiction, 435 U.S. 967, 98 S.Ct. 1604, 56 L.Ed.2d 58, and now affirm the decision in No. 77-1164 and reverse in Nos. 77-1163 and 77-1186. II 8 In holding that § 5.13(d) infringes First Amendment rights, the District Court relied primarily on this Court's decisions in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), and Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). A trade name is a form of advertising, it concluded, because after the name has been used for some time, people "identify the name with a certain quality of service and goods." If found specifically "that the Texas State Optical [TSO] name has come to communicate to the consuming public information as to certain standards of price and quality, and availability of particular routine services," and rejected the argument that the TSO name misleads the public as to the identity of the optometrists with whom it deals. Balancing the constitutional interests in the commercial speech in question against the State's interest in regulating it, the District Court held that the prohibition of the use of trade names by § 5.13(d) is an unconstitutional restriction of the "free flow of commercial information." 438 F.Supp., at 431. A. 9 A review of Virginia Pharmacy and Bates shows that the reliance on them by the court below, a reliance reasserted here by Rogers and the TSCA (the plaintiffs), was misplaced. At issue in Virginia Pharmacy was the validity of Virginia's law preventing advertising by pharmacists of the prices of prescription drugs. After establishing that the economic nature of the pharmacists' interest in the speech did not preclude First Amendment protection for their advertisements, the Court discussed the other interests in the advertisements that warranted First Amendment protection. To individual consumers, information about prices of prescription drugs at competing pharmacies "could mean the alleviation of physical pain or the enjoyment of basic necessities." 425 U.S., at 764, 96 S.Ct., at 1827. Society also has a strong interest in the free flow of commercial information, both because the efficient allocation of resources depends upon informed consumer choices and because "even an individual advertisement, though entirely 'commercial,' may be of general public interest." Ibid. The Court acknowledged the important interest of the State in maintaining high standards among pharmacists, but concluded that this interest could not justify the ban on truthful price advertising when weighed against the First Amendment interests in the information conveyed. 10 In the next Term, the Court applied the rationale of Virginia Pharmacy to the advertising of certain information by lawyers. After weighing the First Amendment interests identified in Virginia Pharmacy against the State's interests in regulating the speech in question, the Court concluded that the truthful advertising the prices at which routine legal services will be performed also is protected by the First Amendment. Bates v. State Bar of Arizona, supra. 11 In both Virginia Pharmacy and Bates, we were careful to emphasize that "[s]ome forms of commercial speech regulation are surely permissible." Virginia Pharmacy, supra, at 770, 96 S.Ct., at 1830; accord, Bates, supra, 433 U.S., at 383, 97 S.Ct., at 2708. For example, restrictions on the time, place, or manner of expression are permissible provided that "they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information." Virginia Pharmacy, supra, at 771, 96 S.Ct., at 1830. Equally permissible are restrictions on false, deceptive, and misleading commercial speech. 12 "Untruthful speech, commercial or otherwise, has never been protected for its own sake. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789, 805-806 (1974); Konigsberg v. State Bar, 366 U.S. 36, 49, and n. 10, 81 S.Ct. 997, 1005-1006, 6 L.Ed.2d 105, 116 (1961). Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to a State's dealing effectively with this problem. The First Amendment, as we construe it today, does not prohibit the State from insuring that the stream of commercial information flow cleanly as well as freely." Id., at 771-772, 96 S.Ct., at 1830 (footnote omitted); accord, Bates, supra, 433 U.S., at 383, 97 S.Ct., at 2708. 13 Regarding the permissible extent of commercial-speech regulation, the Court observed in Virginia Pharmacy that certain features of commercial speech differentiate it from other varieties of speech in ways that suggest that "a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired." 425 U.S., at 772 n. 24, 96 S.Ct., at 1830. Because it relates to a particular product or service, commercial speech is more objective, hence more verifiable, than other varieties of speech. Commercial speech, because of its importance to business profits, and because it is carefully calculated, is also less likely than other forms of speech to be inhibited by proper regulation. These attributes, the Court concluded, indicate that it is "appropriate to require that a commercial message appear in such a form . . . as [is] necessary to prevent its being deceptive. . . . They may also make inapplicable the prohibition against prior restraints." Ibid.; see id., at 775-781, 96 S.Ct., at 1832-1835 (STEWART, J., concurring).9 B 14 Once a trade name has been in use for some time, it may serve to identify an optometrical practice and also to convey information about the type, price, and quality of services offered for sale in that practice. In each role, the trade name is used as part of a proposal of a commercial transaction. Like the pharmacist who desired to advertise his prices in Virginia Pharmacy, the optometrist who uses a trade name "does not wish to editorialize on any subject, cultural, philosophical, or political. He does not wish to report any particularly newsworthy fact, or to make generalized observations even about commercial matters." Id., at 761, 96 S.Ct., at 1825. His purpose is strictly business. The use of trade names in connection with optometrical practice, then, is a form of commercial speech and nothing more.10 15 A trade name is, however, a significantly different form of commercial speech from that considered in Virginia Pharmacy and Bates. In those cases, the State had proscribed advertising by pharmacists and lawyers that contained statements about the products or services offered and their prices. These statements were self-contained and self-explanatory. Here, we are concerned with a form of commercial speech that has no intrinsic meaning. A trade name conveys no information about the price and nature of the services offered by an optometrist until it acquires meaning over a period of time by associations formed in the minds of the public between the name and some standard of price or quality.11 Because these ill-defined associations oftrade names with price and quality information can be manipulated by the users of trade names, there is a significant possibility that trade names will be used to mislead the public. 16 The possibilities for deception are numerous. The trade name of an optometrical practice can remain unchanged despite changes in the staff of optometrists upon whose skill and care and public depends when it patronizes the practice. Thus, the public may be attracted by a trade name that reflects the reputation of an optometrist no longer associated with the practice. A trade name frees an optometrist from dependence on his personal reputation to attract clients, and even allows him to assume a new trade name if negligence or misconduct casts a shadow over the old one. By using different trade names at shops under his common ownership, an optometrist can give the public the false impression of competition among the shops. The use of a trade name also facilitates the advertising essential to large-scale commercial practices with numerous branch offices, conduct the State rationally may wish to discourage while not prohibiting commercial optometrical practice altogether. 17 The concerns of the Texas Legislature about the deceptive and misleading uses of optometrical trade names were not speculative or hypothetical, but were based on experience in Texas with which the legislature was familiar when in 1969 it enacted § 5.13(d). The forerunner of § 5.13(d) was adopted as part of a "Professional Responsibility Rule" by the Texas State Board of Examiners in Optometry in 1959.12 In a decision upholding the validity of the Rule, the Texas Supreme Court reviewed some of the practices that had prompted its adoption. Texas State Bd. of Examiners in Optometry v. Carp, 412 S.W.2d 307, appeal dismissed and cert. denied, 389 U.S. 52, 88 S.Ct. 241, 19 L.Ed.2d 51 (1967). One of the plaintiffs in that case, Carp, operated 71 optometrical offices in Texas under at least 10 different trade names. From time to time, he changed the trade names of various shops, though the licensed optometrists practicing in each shop remained the same. He purchased the practices of other optometrists and continued to practice under their names, even though they were no longer associated with the practice. In several instances, Carp used different trade names on offices located in close proximity to one another and selling the same optical goods and services. The offices were under common management, and had a common staff of optometrists, but the use of different trade names facilitated advertising that gave the impression of competition among the offices. 18 The Texas court found that Carp used trade names to give a misleading impression of competitive ownership and management of his shops. It also found that Rogers, a party to this suit and a plaintiff in Carp, had used a trade name to convey the impression of standardized optometrical care. All 82 of his shops went under the trade name "Texas State Optical" or "TSO," and he advertised "scientific TSO eye examination[s]" available in every shop. 412 S.W.2d, at 312. The TSO advertising was calculated as well, the court found, to give "the impression that [Rogers or one of his brothers] is present at a particular office. Actually they have neither been inside nor seen some of their eighty-two offices distributed generally over Texas." Id., at 313. Even if Rogers' use and advertising of the trade name were not in fact misleading, they were an example of the use of a trade name to facilitate the large-scale commercialization which enhances the opportunity for misleading practices.13 19 It is clear that the State's interest in protecting the public from the deceptive and misleading use of optometrical trade names is substantial and well demonstrated.14 We are convinced that § 5.13(d) is a constitutionally permissible state regulation in furtherance of this interest. We emphasize, in so holding, that the restriction on the use of trade names has only the most incidental effect on the content of the commercial speech of Texas optometrists. As noted above, a trade name conveys information only because of the associations that grow up over time between the name and a certain level of price and quality of service. Moreover, the information associated with a trade name is largely factual, concerning the kind and price of the services offered for sale. Since the Act does not prohibit or limit the type of informational advertising held to be protected in Virginia Pharmacy and Bates, the factual information associated with trade names may be communicated freely and explicitly to the public. An optometrist may advertise the type of service he offers, the prices he charges,15 and whether he practices as a partner, associate, or employee with other optometrists.16 Rather than stifling commercial speech, § 5.13(d) ensures that information regarding optometrical services will be communicated more fully and accurately to consumers than it had been in the past when optometrists were allowed to convey the information through unstated and ambiguous associations with a trade name. In sum, Texas has done no more than require that commercial information about optometrical services "appear in such a form . . . as [is] necessary to prevent its being deceptive." Virginia Pharmacy, 425 U.S., at 772 n. 24, 96 S.Ct., at 1830 n. 24.17 III 20 We stated the applicable constitutional rule for reviewing equal protection challenges to local economic regulations such as § 2.02 in New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976). 21 "When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations. See, e. g., Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973). Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest." 22 The history of the Act shows that § 2.02 is related reasonably to the State's legitimate purpose of securing a Board that will administer the Act faithfully. 23 Prior to 1967, the TOA dominated the State Board of Examiners; during that period, the State Board adopted various rules for the regulation of the optometrical profession, including the Professional Responsibility Rule. Between 1967 and 1969, the commercial optometrists secured a majority on the State Board and took steps to repeal the Professional Responsibility Rule. This precipitated a legislative struggle between the commercial and professional optometrists which ended in the passage of the Act in 1969. At that time the legislature enacted into law, with certain modifications, the Professional Responsibility Rule long supported by the TOA, and created the Board to administer the Act. In view of its experience with the commercial and professional optometrists preceding the passage of the Act,18 it was reasonable for the legislature to require that a majority of the Board be drawn from a professional organization that had demonstrated consistent support for the rules that the Board would be responsible for enforcing. Nor is there any constitutional basis for TSCA's due process claim that the legislature is required to place a representative of consumers on the Board.19 24 Although Rogers has no constitutional right to be regulated by a Board that is sympathetic to the commercial practice of optometry, he does have a constitutional right to a fair and impartial hearing in any disciplinary proceeding conducted against him by the Board. Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973); Wall v. American Optometric Assn., 379 F.Supp. 175 (ND Ga.), summarily aff'd sub nom., Wall v. Hardwick, 419 U.S. 888, 95 S.Ct. 166, 42 L.Ed.2d 134 (1974). In both Gibson and Wall, however, disciplinary proceedings had been instituted against the plaintiffs and the courts were able to examine in a particular context the possibility that the members of the regulatory board might have personal interests that precluded a fair and impartial hearing of the charges. Finding the presence of such prejudicial interests, it was appropriate for the courts to enjoin further proceedings against the plaintiffs. E. g., Gibson, supra, at 570, 578-579, 93 S.Ct., at 1693, 1697-1698. In contrast, Rogers' challenge to the fairness of the Board does not arise from any disciplinary proceeding against him.20 IV 25 The portion of the District Court's judgment appealed from in No. 77-1164, sustaining the constitutionality of § 2.02, is affirmed. That part of the District Court's judgment appealed from in Nos. 77-1163 and 77-1186, declaring § 5.13(d) unconstitutional insofar as it proscribes the use of trade names by optometrists, is reversed. The case is remanded with instructions to dissolve the injunction against the enforcement of § 5.13(d). 26 So ordered. 27 Mr. Justice BLACKMUN, with whom Mr. Justice MARSHALL joins, concurring in part and dissenting in part. 28 I join Part III of the Court's opinion and its judgment of affirmance with respect to No. 77-1164 (the § 2.02, or Texas Optometry Board composition, issue). I dissent, however, from Part II of the Court's opinion and from its judgment of reversal with respect to Nos. 77-1163 and 77-1186 (the § 5.13(d), or trade-name, issue). 29 I do not agree with the Court's holding that the Texas Optometry Act's § 5.13(d), which bans the use of a trade name "in connection with" the practice of optometry in the State, is constitutional. In my view, the Court's restricted analysis of the nature of a trade name overestimates the potential for deception and underestimates the harmful impact of the broad sweep of § 5.13(d). The Court also ignores the fact that in Texas the practice of "commercial" optometry is legal. It has never been outlawed or made illegal. This inescapable conclusion is one of profound importance in the measure of the First Amendment rights that are asserted here. It follows, it seems to me, that Texas has abridged the First Amendment rights not only of Doctor Rogers but also of the members of the intervenor-plaintiff Texas Senior Citizens Association by absolutely prohibiting, without reasonable justification, the dissemination of truthful information about wholly legal commercial conduct. 30 * The First Amendment protects the "free flow of commercial information." Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 764, 96 S.Ct. 1817, 1827, 48 L.Ed.2d 346 (1976). It prohibits a State from banning residential "For Sale" signs, Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 50 L.Ed.2d 155 (1977), or from disciplining lawyers who advertise the availability of routine professional services, Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), or from preventing pharmacists from disseminating the prices at which they will sell prescription drugs, Virginia Pharmacy Board, supra. In each of these cases, the Court has balanced the public and private interests that the First Amendment protects against the justifications proffered by the State. Without engaging in any rigid categorization of the degree of scrutiny required, the Court has distinguished between permissible and impermissible forms of state regulation.1 31 In 1976, Texas had 934 resident licensed optometrists divided almost evenly between "professional" and "commercial" factions. Rogers is the leader of the commercial forces. He and his associates operate more than 100 optometry offices. Before the enactment of § 5.13(d) in 1969, their offices used, and where still allowed by a grandfather provision, § 5.13(k) (which, but for the decision of the District Court, would have expired on January 1, 1979), continue to use, the name Texas State Optical, or TSO. An optometrist who agrees to participate with Rogers in his organization must obey an elaborate set of restrictions on pain of termination. He must purchase all inventory and supplies from Rogers Brothers; do all laboratory work at their laboratory; abide by their policies concerning the examination of patients; take patients on a first-come-first-served basis rather than by appointment; and retain Rogers Brothers at 4% of net cash to do all accounting and advertising. App. A-71 to A-98. As a result of these and other rules, the Rogers organization is able to offer and enforce a degree of uniformity in care at all its offices along with other consumer benefits, namely, sales on credit, adjustment of frames and lenses without cost, one-stop care, and transferability of patient records among Texas State Optical offices.2 The TSO chain typifies commercial optometry, with its emphasis on advertising, volume, and speed of service. 32 The Court today glosses over the important private and public interests that support Rogers' use of his trade name. For those who need them, eyeglasses are one of the "basic necessities" of life in which a consumer's interest "may be as keen, if not keener by far, than his interest in the day's most urgent political debate." Virginia Pharmacy Board, 425 U.S., at 763-764, 96 S.Ct., at 1826. For the mobile consumer, the Rogers trade name provides a valuable service.3 Lee Kenneth Benham, a professor and economist whose studies in this area have been relied upon by the Federal Trade Commission,4 testified in a deposition which is part of the record here: 33 "One of the most valuable assets which individuals have in this large mobile country is their knowledge about trade names. Consumers develop a sophisticated understanding of the goods and services provided and the prices associated with different trade names. This permits them to locate the goods, services, and prices they prefer on a continuing basis with substantially lower search costs than would otherwise be the case. This can perhaps be illustrated by pointing out the information provided by such names as Sears, Neiman Marcus or Volkswagen. This also means that firms have an enormous incentive to develop and maintain the integrity of the products and services provided under their trade name: the entire package they offer is being judged continuously by consumers on the basis of the samples they purchase." App. A-336. 34 And the District Court found in this case that "the Texas State Optical name [TSO] has come to communicate to the consuming public information as to certain standards of price and quality, and availability of particular routine services." 438 F.Supp. 428, 431 (ED Tex.1977). 35 The Rogers trade name also serves a distinctly public interest. To that part of the general public that is not then in the market for eye care, a trade name is the distinguishing characteristic of the commercial optometrist. The professional faction does not use trade names. Without trade names, an entirely legal but regulated mode of organizing optometrical practice would be banished from that public's view. The appellants in Nos. 77-1163 and 77-1186 do not argue that the Rogers partnership contracts run afoul of any statute other than § 5.13(d). The Act, indeed, explicitly approves other incidents of commercial optometry, including the leasing of space on a percentage basis, § 5.13(b); the hiring of professional employees without regard to supervision, § 5.13(c); and the leasing of space in mercantile establishments, § 5.14. The Texas Optometry Act, with limited exceptions in § 5.09(a), does not prohibit advertising. Yet § 5.13(d) will bar Rogers from telling both consumers and the rest of the public that the TSO organization even exists. It totally forbids the use of a trade name "in connection with his practice of optometry."5 36 The political impact of forcing TSO out of the public view cannot be ignored. Under the Texas Sunset Act, the Texas Optometry Act will expire September 1, 1981. Tex.Rev.Civ.Stat.Ann., Art. 4552-2.01a (Vernon Supp.1978-1979). By preventing TSO from advertising its existence, the State has struck a direct blow at Rogers' ability to campaign for the re-enactment of the portions of the statute he favors, and for the demise of those, such as § 2.02, that he finds objectionable. The citizen is more likely to pay attention to the head of a statewide organization whose reputation is known than to an optometrist whose influence is obscurely perceived. II 37 The Court characterizes as "substantial and well demonstrated" the state interests offered to support suppression of this valuable information. Ante, at 15. It first contends that because a trade name has no intrinsic meaning, it can cause deception. The name may remain unchanged, it is pointed out, despite a change in the identities of the optometrists who employ it. Secondly, the Court says that the State may ban trade names to discourage commercial optometry while stopping short of prohibiting it altogether. Neither of these interests justifies a statute so sweeping as § 5.13(d). A. 38 Because a trade name has no intrinsic meaning, it cannot by itself be deceptive. A trade name will deceive only if it is used in a misleading context. The hypotheticals posed by the Court, and the facts of Texas State Bd. of Examiners in Optometry v. Carp, 412 S.W.2d 307 (Tex.), appeal dismissed and cert. denied, 389 U.S. 52, 88 S.Ct. 241, 19 L.Ed.2d 51 (1967), concern the use of optometric trade names in situations where the name of the practicing optometrist is kept concealed. The deception lies not in the use of the trade name, but in the failure simultaneously to disclose the name of the optometrist. In the present case, counsel for the State conceded at oral argument that § 5.13(d) prohibits the use of a trade name even when the optometrist's name is also prominently displayed. Tr. of Oral Arg. 39. It thus prohibits wholly truthful speech that is entirely removed from the justification on which the Court most heavily relies to support the statute. 39 The Court suggests that a State may prohibit "misleading commercial speech" even though it is "offset" by the publication of clarifying information. Ante, at 12 n. 11. Corrected falsehood, however, is truth, and, absent some other regulatory justification, a State may not prohibit the dissemination of truthful commercial information. By disclosing his individual name along with his trade name, the commercial optometrist acts in the spirit of our First Amendment jurisprudence, where traditionally "the remedy to be applied is more speech, not enforced silence." Linmark Associates, Inc. v. Willingboro, 431 U.S., at 97, 97 S.Ct., at 1620, quoting Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).6 The ultimate irony of the Court's analysis is that § 5.13(d), because of its broad sweep, actually encourages deception. That statute, in conjunction with § 5.13(e),7 prevents the consumer from ever discovering that Rogers controls and in some cases employs the optometrist upon whom the patient has relied for care. In effect, the statute conceals the fact that a particular practitioner is engaged in commercial rather than professional optometry, and so deprives consumers of information that may well be thought relevant to the selection of an optometrist. B 40 The second justification proffered by the Court is that a State, while not prohibiting commercial optometry practice altogether, could ban the use of trade names in order to discourage commercial optometry. Just last Term, however, the Court rejected the argument that the States' power to create, regulate, or wind up a corporation by itself could justify a restriction on that corporation's speech. See First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 780 n. 16, 98 S.Ct. 1407, 1418, n. 16, 55 L.Ed.2d 707 (1978). Moreover, this justification ignores the substantial First Amendment interest in the dissemination of truthful information about legally available professional services. See Bigelow v. Virginia, 421 U.S. 809, 822-825, 95 S.Ct. 2222, 2232-2234, 44 L.Ed.2d 600 (1975). It is not without significance that most of the persons influenced by a trade name are those who, by experience or by reputation, know the quality of service for which the trade name stands. The determination that banning trade names would discourage commercial optometry, therefore, necessarily relies on an assumption that persons previously served thought that the trade-name practitioner had performed an acceptable service. If the prior experience had been bad, the consumer would want to know the trade name in order to avoid those who practice under it. The first and second stated purposes of § 5.13 are "to protect the public in the practice of optometry," and to "better enable members of the public to fix professional responsibility." These purposes are ill-served by a statute that hinders consumers from enlisting the services of an organization they have found helpful, and so, in effect, prevents consumers from protecting themselves. 41 The Court repeatedly has rejected the "highly paternalistic" approach implicit in this justification. See First Nat. Bank of Boston v. Bellotti, 435 U.S., at 791 n. 31, 98 S.Ct., at 1424 n. 31. There is nothing about the nature of an optometrist's services that justifies adopting an approach of this kind here. An optometrist's duties are confined by the statute, § 1.02(1), to measuring the powers of vision of the eye and fitting corrective lenses. See Williamson v. Lee Optical Co., 348 U.S. 483, 486, 75 S.Ct. 461, 463, 99 L.Ed. 563 (1955) (defining terms). The optometrist does not treat disease. His service is highly standardized. Each step is controlled by statute. § 5.12. Many of his functions are so mechanical that they can be duplicated by machines that would enable a patient to measure his own vision.8 Patients participate in the refraction process, and they frequently can easily assess the quality of service rendered. The cost per visit is low enough $15 to $35—that comparison shopping is sometimes possible. See App. A-420. Because more than half the Nation's population uses eyeglasses, 43 Fed.Reg. 23992 (1978), reputation information is readily available. In this context, the First Amendment forbids the choice which Texas has made to shut off entirely the flow of commercial information to consumers who, we have assumed, "will perceive their own best interests if only they are well enough informed." Virginia Pharmacy Board, 425 U.S., at 770, 96 S.Ct., at 1829. 42 Because § 5.13(d) absolutely prohibits the dissemination of truthful information about Rogers' wholly legal commercial conduct to consumers and a public who have a strong interest in hearing it, I would affirm the District Court's judgment holding that § 5.13(d) is unconstitutional. 1 The District Court also sustained a constitutional challenge to the statute prohibiting price advertising by optometrists, but upheld the statute regulating the referral of patients by optometrists to opticians. Neither of these holdings has been appealed to this Court. 2 Section 2.02 provides: "To be qualified for appointment as a member of the board, a person must be a licensed optometrist who has been a resident of this state actually engaged in the practice of optometry in this state for the period of five years immediately preceding his appointment. A person is disqualified from appointment to the board if he is a member of the faculty of any college of optometry, if he is an agent of any wholesale optical company, or if he has a financial interest in any such college or company. At all times there shall be a minimum of two-thirds of the board who are members of a state optometric association which is recognized by and affiliated with the American Optometric Association." The Act is codified as Art. 4552 of the Texas Revised Civil Statutes Annotated (Vernon 1976). The section numbers of the Act and those within Art. 4552 are the same, and we will refer only to the Act. 3 Act § 4.04. 4 It is unlawful to practice optometry without a license. § 5.04. An applicant for a license to practice optometry must meet certain educational standards, § 3.02, and must pass an examination covering subjects specified in the Act. §§ 3.01, 3.05. Once licensed, an optometrist must meet an annual continuing education requirement to be eligible for renewal of his license. § 4.01B. Optometrists are forbidden to treat diseases of the eye, and to prescribe ophthalmic lenses without a personal examination of the patient. §§ 5.05, 5.07. In a section entitled "Basic competence," the Act specifies the elements of the examination that an optometrist must conduct before he prescribes for a patient. § 5.12. 5 An optometrist must display his license in his office; when practicing away from his office, he must include his name and license number on a receipt given to each patient. § 5.01. Fraudulent, deceitful, and misleading advertising is proscribed by § 5.09, though the ban placed by that section on truthful price advertising has been nullified by the decision of the District Court in this case. See n. 1, supra. An optometrist is forbidden to advertise in his office windows or reception rooms, and to use certain types of signs to advertise his practice. § 5.11. The practice of optometry on the premises of mercantile establishments is regulated, § 5.14, and relationships between optometrists and opticians are restricted. § 5.15. 6 Section 5.13(d) provides in part: "No optometrist shall practice or continue to practice optometry under, or use in connection with his practice of optometry, any assumed name, corporate name, trade name, or any name other than the name under which he is licensed to practice optometry in Texas . . . ." The scope of the prohibition in § 5.13(d) is limited by various provisions in § 5.13 that make it clear that the Act does not proscribe partnerships for the practice of optometry, or the employment of optometrists by other optometrists. Regarding partnerships, counsel for the defendant Board members indicated at oral argument that § 5.13(d) does not require that the names of all partners be included in the name used to identify the office of an optometrical partnership. Tr. of Oral Arg. 28. With respect to employees, § 5.13(d) provides that "[o]ptometrists who are employed by other optometrists shall practice in their own names, but may practice in an office listed under the name of the individual optometrist or partnership of optometrists by whom they are employed." 7 No matter which of these business methods an optometrist adopts, the standards for licensing are uniformly high. An optometrist, to qualify for a license, must be a graduate of a university or college of optometry, and must pass an examination in "practical, theoretical, and physiological optics, in theoretical and practical optometry, and in the anatomy, physiology and pathology of the eye as applied to optometry." Act §§ 3.02, 3.05. The dissenting opinion minimizes the professional character of an optometrist's services, stating that his duties are "confined . . . to measuring the powers of vision of the eye and fitting corrective lenses." Post, at 27. But it is clear from the requirements for licensing imposed by the Act that the Texas Legislature considers optometry to be a professional service requiring in the public interest a high level of knowledge and training. 8 The District Court also held that § 2.02 does not create a constitutionally impermissible irrebuttable presumption against nonmembers of TOA, and that its decision striking down the Act's prohibition of price advertising removed any danger that TOA's domination of the Board could be used to suppress truthful advertising by optometrists. 9 The application of First Amendment protection to speech that does "no more than propose a commercial transaction," Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 385, 93 S.Ct. 2553, 2558, 37 L.Ed.2d 669 (1973), has been recognized generally as a substantial extension of traditional free-speech doctrine which poses special problems not presented by other forms of protected speech. Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Va.L.Rev. 1 (1979); Note 57 B.U.L.Rev. 833 (1977). Cf. Comment, First Amendment Protection for Commercial Advertising: The New Constitutional Doctrine, 44 U.Chi.L.Rev. 205 (1976). By definition, commercial speech is linked inextricably to commercial activity: while the First Amendment affords such speech "a limited measure of protection," it is also true that "the State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity." Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456, 98 S.Ct. 1912, 1919, 56 L.Ed.2d 444 (1978). Because of the special character of commercial speech and the relative novelty of First Amendment protection for such speech, we act with caution in confronting First Amendment challenges to economic legislation that serves legitimate regulatory interests. Our decisions dealing with more traditional First Amendment problems do not extend automatically to this as yet uncharted area. See, e. g., id., at 462 n. 20, 98 S.Ct., at 1922 n. 20 (overbreadth analysis not applicable to commercial speech). When dealing with restrictions on commercial speech we frame our decisions narrowly, "allowing modes of regulation [of commercial speech] that might be impermissible in the realm of noncommercial expression." Id., at 456, 98 S.Ct., at 1918. 10 In First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), the state law at issue prohibited the bank from publicizing its views on the merits of a proposed state constitutional amendment that was to be submitted to a referendum. In holding that the statute was unconstitutional, the Court stated that free discussion of governmental affairs "is at the heart of the First Amendment's protection." Id., at 776, 98 S.Ct., at 1415. Similarly in Bigelow v. Virginia, 421 U.S. 809, 822, 95 S.Ct. 2222, 2232, 44 L.Ed.2d 600 (1975), the Court noted explicitly that the constitutionally protected advertisement "did more than simply propose a commercial transaction." Such speech is categorically different from the mere solicitation of patronage implicit in a trade name. See n. 9, supra. 11 A trade name that has acquired such associations to the extent of establishing a secondary meaning becomes a valuable property of the business, protected from appropriation by others. The value as a business asset of a trade name with secondary meaning has been recognized in the limitations imposed on the Federal Trade Commission's remedial powers under § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, which prohibits "unfair methods of competition." Because of the property value of trade names, the Court held in FTC v. Royal Milling Co., 288 U.S. 212, 217-218, 53 S.Ct. 335, 337, 77 L.Ed. 706 (1933), and Jacob Siegel Co. v. FTC, 327 U.S. 608, 611-613, 66 S.Ct. 758, 759-760, 90 L.Ed. 888 (1946), that before prohibiting the use of a trade name under § 5, the FTC must determine that the deceptive or misleading use of the name cannot be remedied by any means short of its proscription. But a property interest in a means of communication does not enlarge or diminish the First Amendment protection of that communication. Accordingly, there is no First Amendment rule, comparable to the limitation on § 5, requiring a State to allow deceptive or misleading commercial speech whenever the publication of additional information can clarify or offset the effects of the spurious communication. There is no claim in this case that Rogers or other optometrists practicing under trade names have been deprived of property without due process of law, or indeed that their property has been taken at all. Accordingly, we do not have occasion to consider whether § 5.13(k), the limited grandfather clause applicable to § 5.13(d), would defeat such claims. 12 The Rule provided in part that no optometrist should practice under or use an assumed name in connection with his practice. Partners were allowed to practice under their full or last names, however, and optometrists employed by other optometrists could practice under their own names in an office listed in the names of their employers. When the Texas Legislature enacted the Texas Optometry Act in 1969, it included the Professional Responsibility Rule, with only minor changes, as § 5.13 of the Act. The purpose of the legislature was to continue the protection of the public from false, deceptive, and misleading practices by optometrists, as the preamble to § 5.13 makes clear. "The provisions of this section are adopted in order to protect the public in the practice of optometry, better enable members of the public to fix professional responsibility, and further safeguard the doctor-patient relationship." 13 Although the individual defendants and the TOA (collectively, the defendants) rely primarily on Carp to establish the history of false and misleading uses of optometrical trade names, some evidence of such practices also was included in the deposition testimony presented to the District Court. A former associate of Carp's testified to some of the trade-name abuses that had occurred in their business. Shannon Deposition 8. Rogers' testimony showed that the "Texas State Optical" name was used by offices wholly owned by him, partly owned by him, and by offices in which he had no ownership interest. The dissenting opinion states that the "Rogers organization is able to offer and enforce a degree of uniformity in care at all its offices . . . ." Post, at 21. This was not Rogers' testimony. He stated that he exercised "no control whatsoever" over "office policy routines" in those TSO offices in which he owned no interest. Rogers Deposition 16. It appears from Rogers' testimony that his primary business relationship with such offices was their participation in the TSO advertising and their purchase of materials and equipment from his supply house. Id., at 16-18, 22-23. 14 The plaintiffs argue that the fact that the public might be subject to similar deception by optometrists who do not use trade names but practice in partnerships or with numerous employees shows that the State actually was not concerned with misleading and deceptive practices when it enacted § 5.13(d). The plaintiffs have not attempted to show, however, that any of the demonstrated abuses associated with the use of trade names also has occurred apart from their use. Tr. of Oral Arg. 29. There is no requirement that the State legislate more broadly than required by the problem it seeks to remedy. See Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955). 15 As adopted, § 5.09 of the Act proscribed price advertising by optometrists. But the court below invalidated that prohibition, and its ruling has not been appealed. See n. 1, supra. 16 As stated supra, at 891, § 5.13 allows an optometrist to associate his name only with an office in which he practices. § 5.13(e). 17 Rogers did not produce any evidence in support of his claim that § 5.13(d) violates his right to equal protection of the laws because it does not apply to ophthalmologists. Even assuming what Rogers did not demonstrate, that ophthalmologists are in fact free of any regulation comparable to § 5.13(d), the uncontested evidence of the defendants showed that the regulations contained in that section are a response to the particular history of the business of optometry. E. g., Friedman Deposition 138-142: Tr. of Oral Arg. 5. The plaintiffs did not attempt to show that there was any comparable history of the use of trade names by ophthalmologists. Because we conclude that § 5.13(d) is a constitutionally permissible restriction on deceptive and misleading commercial speech, we need not consider the other justifications for the statute suggested by the defendants. We leave for another day the question whether § 5.13(d) is affected by recently promulgated regulations of the Federal Trade Commission concerning the advertising of ophthalmic goods and services. 43 Fed.Reg. 23992 (1978). 18 Riley Deposition, App. A-209 to A-236, A-251 to A-252. 19 The Due Process Clause imposes only broad limits, not exceeded here, on the exercise by a State of its authority to regulate its economic life, and particularly the conduct of the professions. Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978); North Dakota Pharmacy Board v. Snyder's Drug Stores, Inc., 414 U.S. 156, 164-167, 94 S.Ct. 407, 412-414, 38 L.Ed.2d 379 (1973); Williamson v. Lee Optical Co., 348 U.S. 483, 487-488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955). Cf. Weinberger v. Salfi, 422 U.S. 749, 767-774, 95 S.Ct. 2457, 2467-2471, 45 L.Ed.2d 522 (1975). 20 Since there is no support in the record for TSCA's speculation that the TOA members on the Board will act in excess of their authority by discouraging lawful advertising by optometrists, there is no merit in TSCA's claim that § 2.02 violates its members' First Amendment rights by creating a Board with a majority drawn from the TOA. The claim of the plaintiffs that § 2.02 is inconsistent with § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, was neither alleged in the District Court nor mentioned in the jurisdictional statement in this Court. The plaintiffs' attempt to raise the issue in their brief in No. 77-1164 does not put the question properly before us. 1 See Canby & Gellhorn, Physician Advertising: The First Amendment and the Sherman Act, 1978 Duke L.J. 543, 552-554. 2 Rogers owns some Texas State Optical offices; in others he is merely a partner; and in still others he has no financial interest other than licensing the TSO trade name and selling optical supplies and services to the "associated" optometrist. The Court, ante, at 13 n. 13, relies on Rogers' deposition testimony to suggest that he exerts no control at all over associated offices. The representative contract introduced into evidence, however, requires that, as a condition of using the TSO trade name, the licensee must operate the office in accord with TSO policy and purchase all optical material from Rogers Brothers Laboratory. App. A-82 to A-83. See Brief for Appellee Texas Optometric Association, Inc., in No. 77-1164, pp. 16-18. The parties do not question the District Court's factual finding that the TSO trade name is associated with certain standards of quality. See infra, at 23. 3 Trade names are a vital form of commercial speech. It has even been suggested that commercial speech can be defined as "speech referring to a brand name product or service that is not itself protected by the first amendment, issued by a speaker with a financial interest in the sale of the product or service or in the distribution of the speech." Comment, First Amendment Protection for Commercial Advertising: The New Constitutional Doctrine, 44 U.Chi.L.Rev. 205, 254 (1976). 4 The Federal Trade Commission has promulgated a rule pre-empting certain state laws that restrict advertising of ophthalmic goods and services. 43 Fed.Reg. 24006 (1978). The Commission's statement of basis and purpose characterizes the Benham studies as "reliable." Id., at 23995. See Benham, The Effect of Advertising on the Price of Eyeglasses, 15 J.Law & Econ. 337 (1972); Benham & Benham, Regulating Through the Professions: A Perspective on Information Control, 18 J.Law & Econ. 421 (1975). 5 Rogers may not even inform the public that he is associated with any 1 of the more than 100 offices his organization controls, unless he spends a specified amount of his practice time at that office. See § 5.13(e). 6 The Court's prior cases reviewing orders of the Federal Trade Commission have recognized that, when a trade name is alleged to be deceptive, the deception can be cured by "requiring proper qualifying words to be used in immediate connection with the names." FTC v. Royal Milling Co., 288 U.S. 212, 217, 53 S.Ct. 335, 337, 77 L.Ed. 706 (1933); see Jacob Siegel Co. v. FTC, 327 U.S. 608, 611-613, 66 S.Ct. 758, 759-760, 90 L.Ed. 888 (1946). The Court would distinguish these cases, ante, at 12 n. 11, on the ground that the corporate interest protected there arose under the Fifth Amendment rather than the First. No justification for that distinction is offered. 7 Section 5.13 in pertinent part reads: "(e) No optometrist shall use, cause or allow to be used, his name or professional identification, as authorized by Article 4590e, as amended, Revised Civil Statutes of Texas, on or about the door, window, wall, directory, or any sign or listing whatsoever, of any office, location or place where optometry is practiced, unless said optometrist is actually present and practicing optometry therein during the hours such office, location or place of practice is open to the public for the practice of optometry. * * * * * "(g) The requirement of Subsections (e) and (f) of this section that an optometrist be 'actually present' in an office, location or place of practice holding his name out to the public shall be deemed satisfied if the optometrist is, as to such office, location or place of practice, either: "(1) physically present therein more than half the total number of hours such office, location, or place of practice is open to the public for the practice of optometry during each calendar month for at least nine months in each calendar year; or "(2) physically present in such office, location, or place of practice for at least one-half of the time such person conducts, directs, or supervises any practice of optometry. "(h) Nothing in this section shall be interpreted as requiring the physical presence of a person who is ill, injured, or otherwise incapacitated temporarily." As indicated by the Court's opinion, ante, at 16 and n. 16, an optometrist may not advertise that he is the employee of another optometrist unless the employer is "actually present and practicing" at the same location with the employee. Conversely, when the employer's name can be advertised, the employee's name need not be mentioned. 8 See Bannon, A New Automated Subjective Optometer, 54 Am. J. Optometry & Phys. Optics 433 (1977); Guyton, Automated refraction, 13 Ivest. Ophthalmology 814 (1974); Marg, Anderson, Chung, & Neroth, Computer-Assisted Eye Examination VI. Identification and Correction of Errors in the Refractor III System for Subjective Examination, 55 Am. J. Optometry & Phys. Optics 249 (1978).

23

440 U.S. 48 99 S.Ct. 914 59 L.Ed.2d 136 William E. BUTNER, Petitioner,v.UNITED STATES et al. No. 77-1410. Argued Nov. 27, 1978. Decided Feb. 21, 1979. Syllabus In Chapter XI arrangement proceedings under the Bankruptcy Act, petitioner acquired a second mortgage on certain North Carolina real estate to secure a $360,000 indebtedness but received no express security interest in the rents earned by the property. The bankruptcy judge thereafter appointed an agent to collect the rents and apply them to the payment of taxes, insurance, interest, and principal payments due on the first and second mortgages. The mortgagor was later adjudicated a bankrupt, at which time the first and second mortgages were in default, and the trustee was ordered to collect and retain all rents. The bankrupt's properties were ultimately sold to petitioner for $174,000, that price being paid by reduction of the estate's indebtedness to petitioner from $360,000 to $186,000. At the sale date the trustee had accumulated almost $163,000 in rents which petitioner unsuccessfully sought to have applied to the balance of the second mortgage indebtedness, the bankruptcy judge ruling that the $186,000 balance due petitioner should be treated as a general unsecured claim. The District Court reversed. Though recognizing that under North Carolina law a mortgagor is deemed the owner of the land subject to the mortgage and during his possession is entitled to rents and profits, even after default, the court viewed the agent's appointment during the arrangement proceedings as tantamount to the appointment of a receiver which satisfied the state-law requirement of a change of possession, giving the mortgagee an interest in the rents which no further action after the bankruptcy adjudication was required to preserve. The Court of Appeals reversed, reinstating the disposition of the bankruptcy judge. The appellate court held that the bankruptcy adjudication had terminated the state-court receivership status arising out of the appointment of the agent to collect rents, and that because petitioner had made no request during the bankruptcy for a sequestration of rents or for the appointment of a receiver, petitioner had not taken the kind of action North Carolina law required to give a mortgagee a security interest in the rents collected after the bankruptcy adjudication. Held: Apart from certain special provisions, the Bankruptcy Act generally leaves the determination of property rights in the assets of a bankrupt's estate to state law. The law of the State where the property is located accordingly governs a mortgagee's right to rents during bankruptcy, and a federal bankruptcy court should take whatever steps are necessary to ensure that a mortgagee is afforded in federal bankruptcy court the same protection he would have under state law had no bankruptcy ensued. Though the general principle of the applicability of state law to determine property rights in a bankrupt's assets was applied by both the District Court and the Court of Appeals (and those courts properly did not follow the minority federal equity rule under which a mortgagee is afforded a secured interest in rents even if state law would not recognize any such interest until after foreclosure), those courts disagreed about the requirements of North Carolina law. However, that state-law issue as such will not be reviewed by this Court. Pp. 51-58. 566 F.2d 1207, affirmed. J. Steven Brackett, Hickory, N.C., for petitioner. Allan A. Ryan, Jr., Washington, D.C., for respondent the United States. Joe N. Cagle, Hickory, N.C., for respondents, Cagle et al. Mr. Justice STEVENS delivered the opinion of the Court. 1 A dispute between a bankruptcy trustee and a second mortgagee over the right to the rents collected during the period between the mortgagor's bankruptcy and the foreclosure sale of the mortgaged property gave rise to the question we granted certiorari to decide. 436 U.S. 955, 98 S.Ct. 3067, 57 L.Ed.2d 1120. That question is whether the right to such rents is determined by a federal rule of equity or by the law of the State where the property is located. 2 On May 14, 1973, Golden Enterprises, Inc. (Golden), filed a petition for an arrangement under Chapter XI of the Bankruptcy Act. 11 U.S.C. §§ 701-799. In those proceedings, the bankruptcy judge approved a plan consolidating various liens on North Carolina real estate owned by Golden. As a result, petitioner acquired a second mortgage securing an indebtedness of $360,000.1 Petitioner did not, however, receive any express security interest in the rents earned by the property. 3 On April 18, 1974, the bankruptcy judge granted Golden's motion to appoint an agent to collect the rents and to apply them as directed by the court. The order of appointment provided that the money should be applied to tax obligations, payments on the first mortgage, fire insurance premiums, and interest and principal on the second mortgage. There is no dispute about the collections or payments made pursuant to that order. 4 The arrangement plan was never confirmed. On February 14, 1975, Golden was adjudicated a bankrupt, and the trustee in bankruptcy was appointed. At that time both the first and second mortgages were in default. The trustee was ordered to collect and retain all rents "to the end that the same may be applied under this or different or further orders of [the bankruptcy] [c]ourt." App. 342a-343a. 5 After various alternatives were considered, and after the District Court refused to confirm a first sale, the properties were ultimately sold to petitioner on November 12, 1975, for $174,000. That price was paid by reducing the estate's indebtedness to petitioner from $360,000 to $186,000. 6 As of the date of sale, a fund of $162,971.32 had been accumulated by the trustee pursuant to the February 14 court order that he collect and retain all rents. On December 1, 1975, petitioner filed a motion claiming a security interest in this fund and seeking to have it applied to the balance of the second mortgage indebtedness. The bankruptcy judge denied the motion, holding that the $186,000 balance due to petitioner should be treated as a general unsecured claim. 7 The District Court reversed. It recognized that under North Carolina law, a mortgagor is deemed the owner of the land subject to the mortgage and is entitled to rents and profits, even after default, so long as he retains possession. But the court viewed the appointment of an agent to collect rents during the arrangement proceedings as tantamount to the appointment of a receiver. This appointment, the court concluded, satisfied the state-law requirement of a change of possession giving the mortgagee an interest in the rents; no further action after the adjudication in bankruptcy was required to secure or preserve this interest. 8 The Court of Appeals reversed and reinstated the disposition of the bankruptcy judge. Golden Enterprises, Inc. v. United States, 566 F.2d 1207. The court acknowledged that the agent appointed to collect rents before the bankruptcy was equivalent to a state-court receivership, but held that the adjudication terminated that relationship. Because petitioner had made no request during the bankruptcy for a sequestration of rents or for the appointment of a receiver, petitioner had not, in the court's view, taken the kind of action North Carolina law required to give the mortgagee a security interest in the rents collected after the bankruptcy adjudication. One judge dissented, adopting the position of the District Court. Id., at 1211. 9 * We did not grant certiorari to decide whether the Court of Appeals correctly applied North Carolina law. Our concern is with the proper interpretation of the federal statutes governing the administration of bankrupt estates. Specifically, it is our purpose to resolve a conflict between the Third and Seventh Circuits on the one hand, and the Second, Fourth, Sixth, Eighth, and Ninth Circuits on the other, concerning the proper approach to a dispute of this kind. 10 The courts in the latter group regard the question whether a security interest in property extends to rents and profits derived from the property as one that should be resolved by reference to state law.2 In a few States, sometimes referred to as "title States," the mortgagee is automatically entitled to possession of the property, and to a secured interest in the rents.3 In most States, the mortgagee's right to rents is dependent upon his taking actual or constructive possession of the property by means of a foreclosure, the appointment of a receiver for his benefit, or some similar legal proceeding.4 Because the applicable law varies from State to State, the results in federal bankruptcy proceedings will also vary under the approach taken by most of the Circuits. 11 The Third and Seventh Circuits have adopted a federal rule of equity that affords the mortgagee a secured interest in the rents even if state law would not recognize any such interest until after foreclosure.5 Those courts reason that since the bankruptcy court has the power to deprive the mortgagee of his state-law remedy, equity requires that the right to rents not be dependent on state-court action that may be precluded by federal law.6 Under this approach, no affirmative steps are required by the mortgagee—in state or federal court—to acquire or maintain a right to the rents. II 12 We agree with the majority view. 13 The constitutional authority of Congress to establish "uniform Laws on the subject of Bankruptcies throughout the United States"7 would clearly encompass a federal statute defining the mortgagee's interest in the rents and profits earned by property in a bankrupt estate. But Congress has not chosen to exercise its power to fashion any such rule. The Bankruptcy Act does include provisions invalidating certain security interests as fraudulent, or as improper preferences over general creditors.8 Apart from these provisions, however, Congress has generally left the determination of property rights in the assets of a bankrupt's estate to state law.9 14 Property interests are created and defined by state law. Unless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding. Uniform treatment of property interests by both state and federal courts within a State serves to reduce uncertainty, to discourage forum shopping, and to prevent a party from receiving "a windfall merely by reason of the happenstance of bankruptcy." Lewis v. Manufacturers National Bank, 364 U.S. 603, 609, 81 S.Ct. 347, 350, 5 L.Ed.2d 323. The justifications for application of state law are not limited to ownership interests; they apply with equal force to security interests, including the interest of a mortgagee in rents earned by mortgaged property.10 15 The minority of courts which have rejected state law have not done so because of any congressional command, or because their approach serves any identifiable federal interest. Rather, they have adopted a uniform federal approach to the question of the mortgagee's interest in rents and profits because of their perception of the demands of equity. The equity powers of the bankruptcy court play an important part in the administration of bankrupt estates in countless situations in which the judge is required to deal with particular, individualized problems. But undefined considerations of equity provide no basis for adoption of a uniform federal rule affording mortgagees an automatic interest in the rents as soon as the mortgagor is declared bankrupt. 16 In support of their rule, the Third and Seventh Circuits have emphasized that while the mortgagee may pursue various state-law remedies prior to bankruptcy, the adjudication leaves the mortgagee "only such remedies as may be found in a court of bankruptcy in the equitable administration of the bankrupt's assets." Bindseil v. Liberty Trust Co., 248 F. 112, 114 (CA3 1917).11 It does not follow, however, that "equitable administration" requires that all mortgagees be afforded an automatic security interest in rents and profits when state law would deny such an automatic benefit and require the mortgagee to take some affirmative action before his rights are recognized. What does follow is that the federal bankruptcy court should take whatever steps are necessary to ensure that the mortgagee is afforded in federal bankruptcy court the same protection he would have under state law if no bankruptcy had ensued. This is the majority view, which we adopt today. 17 The rule of the Third and Seventh Circuits, at least in some circumstances, affords the mortgagee rights that are not his as a matter of state law. The rule we adopt avoids this inequity because it looks to state law to define the security interest of the mortgagee. At the same time, our decision avoids the opposite inequity of depriving a mortgagee of his state-law security interest when bankruptcy intervenes. For while it is argued that bankruptcy may impair or delay the mortgagee's exercise of his right to foreclosure, and thus his acquisition of a security interest in rents according to the law of many States, a bankruptcy judge familiar with local practice should be able to avoid this potential loss by sequestering rents or authorizing immediate state-law foreclosures. Even though a federal judge may temporarily delay entry of such an order, the loss of rents to the mortgagee normally should be no greater than if he had been proceeding in a state court: for if there is a reason that persuades a federal judge to delay, presumably the same reason would also persuade a state judge to withhold foreclosure temporarily. The essential point is that in a properly administered scheme in which the basic federal rule is that state law governs, the primary reason why any holder of a mortgage may fail to collect rent immediately after default must stem from state law. III 18 Recognizing that the bankruptcy frustrated petitioner's right to take possession of the mortgaged property and thereby to establish his right to rents as a matter of North Carolina law, the Court of Appeals assumed that a request to the bankruptcy judge for sequestration of rents, for the appointment of a receiver, or for permission to proceed with a state-court foreclosure would have satisfied the state-law requirement. Since none of these steps was taken during the bankruptcy, the Court of Appeals held that petitioner had no right to the rents. 19 The dissenting judge in the Court of Appeals, as well as the District Judge, felt that the action taken during the arrangement proceedings, coupled with informal requests for abandonment of the property during the bankruptcy, was sufficient to comply with North Carolina law. Neither of these judges, however, based his analysis on the federal rule followed in the Third and Seventh Circuits. They merely disagreed with the majority about the requirements of North Carolina law. 20 In this Court the parties have argued the state-law question at great length, each stressing different aspects of the record. We decline to review the state-law question. The federal judges who deal regularly with questions of state law in their respective districts and circuits are in a better position than we to determine how local courts would dispose of comparable issues.12 21 The judgment is affirmed. 22 It is so ordered. 1 Originally, the second mortgage was held by petitioner along with Robert L. McKaughn, Jr., and Jack Sipe Construction Co. Subsequently, McKaughn and the Sipe Construction Co. assigned all of their rights in the indebtedness and deeds of trust to petitioner, thus making him the sole second mortgagee. 2 See In re Brose, 254 F. 664, 666 (CA2 1918) (" 'The general rule is that the mortgagee is not entitled to the rents and profits of the mortgaged premises until he takes actual possession, or until possession is taken, in his behalf, by a receiver, . . . or until, in proper form, he demands and is refused possession.' This general rule the federal courts will follow, except in cases where it appears that the law of the state where the premises are situated applies a different rule") (quoting Freedman's Savings & Trust Co. v. Shepherd, 127 U.S. 494, 502-503, 8 S.Ct. 1250, 1254, 32 L.Ed. 163); Tower Grove Bank & Trust Co. v. Weinstein, 119 F.2d 120, 122 (CA8 1941) ("In this circuit the law is settled that the construction of mortgages is governed by local state law"); In re Hotel St. James Co., 65 F.2d 82 (CA9 1933); In re American Fuel & Power Co., 151 F.2d 470, 481 (CA6 1945). See also Fidelity Bankers Life Ins. Co. v. Williams, 506 F.2d 1242, 1243 (CA4 1974). See generally 4A W. Collier, Bankruptcy ¶ 70.16, pp. 157-165 (14th ed. 1975); Hill, The Erie Doctrine in Bankruptcy, 66 Harv.L.Rev. 1013 (1953). 3 In some title States, the mortgagee's right to rents and profits may be exercised even prior to default, see Me.Rev.Stat.Ann., Tit. 33, § 502 (1964); in all events, the right at least attaches upon default, see Uvalda Naval Stores Co. v. Cullen, 165 Ga. 115, 117, 139 S.E. 810, 811 (1927). See generally R. Kratovil, Modern Mortgage Law and Practice § 294, p. 204 (1972); Comment, The Mortgagee's Right to Rents and Profits Following a Petition in Bankruptcy, 60 Iowa L.Rev. 1388, 1390-1391 (1975). North Carolina has been classified as a "title" State, Comment, The Mortgagee's Right to Rents After Default, 50 Yale L.J. 1424, 1425 n. 6 (1941), although it does not adhere to this theory in its purest form. Under its case law, a mortgagee is entitled to possession of the mortgaged property upon default, and need not await actual foreclosure. Such possession might be secured either with the consent of the mortgagor or by an action in ejectment. But so long as the mortgagor does remain in possession, even after default, he—not the mortgagee—appears to be entitled to the rents and profits. See Brannock v. Fletcher, 271 N.C. 65, 155 S.E.2d 532 (1967); Gregg v. Williamson, 246 N.C. 356, 98 S.E.2d 481 (1957); Kistler v. Development Co., 205 N.C. 755, 757, 172 S.E. 413, 414 (1934) ("In the absence of a stipulation to the contrary a mortgagor of real property who is permitted to retain possession is entitled to the rents and profits. Credle v. Ayers, 126 N.C. 11, 35 S.E. 128. As between the mortgagor and the mortgagee equity makes the mortgage a charge upon the rents and profits when the mortgagor is insolvent and the security is inadequate . . . but the prevailing rule is that a mortgagee is not entitled to rents until entry is made or a suit for foreclosure has begun"). 4 See Tower Grove Bank & Trust Co. v. Weinstein, supra; Central States Life Ins. Co. v. Carlson, 98 F.2d 102 (CA10 1938); 4A Collier, supra, n. 2, at 157-158. 5 See Bindseil v. Liberty Trust Co., 248 F. 112 (CA3 1917); In re Pittsburgh-Duquesne Development Co., 482 F.2d 243 (CA3 1973); In re Wakey, 50 F.2d 869 (CA7 1931). 6 See, e. g., Central Hanover Bank & Trust Co. v. Philadelphia & Reading Coal & Iron Co., 99 F.2d 642, 645 (CA3 1938): "It is settled in this circuit that in a bankruptcy proceeding a mortgage creditor is entitled without prior demand to the net income of the mortgaged property from the date of adjudication if it is needed to pay the amount due him. . . . This is because the bankruptcy proceeding has taken from the Debtor the possession of his property and in so doing has deprived the mortgage creditor of his ordinary remedy to reach the property mortgaged and its income. It, therefore, follows upon equitable principles, as Judge Woolley pointed out in Bindseil v. Liberty Trust Co., supra, . . . 'that after insolvency has taken the debtor's property out of his hands, its income or product belongs to the lien creditor, who has thus become its virtual owner; and that such income or product issuing from mortgaged property, should not be diverted from the mortgage creditor who has a lien to general creditors who have no lien.' " 7 U.S.Const., Art. I, § 8, cl. 4. 8 See 1 U.S.C. §§ 96(a) and (b) (authorizing trustee to void as preferences certain transfers made by the bankrupt within four months of bankruptcy); §§ 107(a) and (d) (invalidating certain liens obtained through judicial proceedings within four months of bankruptcy and certain fraudulent transfers made within one year of bankruptcy); § 110(c) (authorizing trustee to strike down secret liens and transfers); § 110(e) (invalidating any transfer deemed fraudulent under federal or state law). See generally 3 Collier, supra, n. 2, ¶ 60.01, pp. 743-746. 9 "The Federal Constitution, Article I, § 8, gives Congress the power to establish uniform laws on the subject of bankruptcy throughout the United States. In view of this grant of authority to the Congress it has been settled from an early date that state laws to the extent that they conflict with the laws of Congress, enacted under its constitutional authority, on the subject of bankruptcies are suspended. While this is true, state laws are thus suspended only to the extent of actual conflict with the system provided by the Bankruptcy Act of Congress. Sturges v. Crowninshield, 4 Wheat. 122, 4 L.Ed. 529; Ogden v. Saunders, 12 Wheat. 213, 6 L.Ed. 606. "Notwithstanding this requirement as to uniformity the bankruptcy acts of Congress may recognize the laws of the state in certain particulars, although such recognition may lead to different results in different States. For example, the Bankruptcy Act recognizes and enforces the laws of the states affecting dower, exemptions, the validity of mortgages, priorities of payment and the like. Such recognition in the application of state laws does not affect the constitutionality of the Bankruptcy Act, although in these particulars the operation of the act is not alike in all the states." Stellwagen v. Clum, 245 U.S. 605, 613, 38 S.Ct. 215, 217, 62 L.Ed. 507. 10 Conversely, the federal statutory basis for voiding fraudulent and preferential transfers in order to protect general creditors applies to both security interests and other interests in property. 11 See also Central Hanover Bank & Trust Co. v. Philadelphia & Reading Coal & Iron Co., supra; In re Wakey, supra. 12 See The Tungus v. Skovgaard, 358 U.S. 588, 596, 79 S.Ct. 503, 508, 3 L.Ed.2d 524; United New York & New Jersey Sandy Hook Pilots Assn. v. Halecki, 358 U.S. 613, 615, 79 S.Ct. 517, 518, 3 L.Ed.2d 541. See also Bishop v. Wood, 426 U.S. 341, 345-346, 96 S.Ct. 2074, 2077-2078, 48 L.Ed.2d 684.

78

440 U.S. 29 99 S.Ct. 903 59 L.Ed.2d 122 DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Petitioner,v.Genevieve O. RASMUSSEN et al. GEO CONTROL, INCORPORATED and New Hampshire Insurance Company, Petitioners, v. Genevieve O. RASMUSSEN et al. Nos. 77-1465, 77-1491. Argued Nov. 28, 1978. Decided Feb. 21, 1979. Syllabus The Longshoremen's and Harbor Workers' Compensation Act (Act) Amendments of 1972, to combat inflation, replaced the Act's $70 maximum limitation on weekly disability benefits with a four-step limitation scheme tied to specified percentages of the "applicable national average weekly wage" determined annually by the Secretary of Labor. § 6(b)(1). At the same time, death benefits to surviving spouses and children were increased, respectively, from 35% to 50% and from 15% to 16 2/3% of the deceased's average weekly wages. Total weekly death benefits were still limited to 66 2/3% of the deceased's average weekly wages, but the former specific dollar minimum and maximum limitations on average weekly wages were replaced by a provision dealing only with a minimum limitation tied to the applicable national average weekly wage. Thus, as amended, § 9(e) provides that "(i)n computing death benefits the average weekly wages of the deceased shall be considered to have been not less than the applicable national average weekly wage as prescribed in section 6(b) but the total weekly benefits shall not exceed the average weekly wages of the deceased." Respondents, the widow and son of a covered employee, claimed combined death benefits ($532 per week) equal to 66 2/3% of the deceased's average weekly wages. The employer, its insurance carrier, and the Director of the Department of Labor's Office of Workers' Compensation Programs (petitioners) contended that § 6(b)(1)'s limitation on disability payments (then $167 per week), was meant to apply to death benefits as well as disability benefits and that Congress's failure to place a maximum on death benefits when it amended § 9(e) was inadvertent. An administrative decision in respondents' favor was affirmed by the Court of Appeals. Held: Death benefits payable under the Act are not subject to the maximum limitations placed on disability payments by § 6(b)(1). This conclusion is supported by both the language and legislative history of the 1972 Amendments. Pp. 35-47. (a) That the omission of a maximum limitation on death benefits was inadvertent is disproved by the legislative history of the 1972 Amendments, especially the pertinent Committee Reports, which clearly reflect the Committees' understanding that the minimum and maximum limitations on death benefits of former § 9(e) were being eliminated and that only a minimum benefits provisions tied to the applicable national average weekly wage was being substituted in their place. Pp. 37-41. (b) Section 6(d), which provides that "determinations" under § 6 "with respect to a period" shall apply to employees currently receiving disability benefits or survivors currently receiving death benefits during such period, does not render the maximum limitations contained in § 6(b)(1) applicable to death benefits Congress' use of the word "determinations" in § 6(d) and of its verb form elsewhere in § 6 strongly suggests that it intended the term to refer only to the Secretary of Labor's annual determination under § 6(b)(3) of the national average weekly wage, not to the mathematical computation of disability benefit maximums contemplated under § 6(b)(1). This view is confirmed by § 6(d)'s legislative history. Pp. 41-44. (c) Since both the language and legislative history of the 1972 Amendments show that Congress' omission of a ceiling on death benefits was intentional, this Court must reject petitioners' suggested interpretation of the Act. Pp. 45-47. 567 F.2d 1385, affirmed. Kent L. Jones, Washington, D.C., for petitioner in No. 77-1465, pro hac vice, by special leave of Court. Albert H. Sennett, San Francisco, Cal., for petitioners in No. 77-1491. James Buckley Ostmann, Washington, D.C., for respondents in both cases. Mr. Justice REHNQUIST delivered the opinion of the Court. 1 In May 1973 William Rasmussen was employed as a hydrologist by Geo Control, Inc., which was under contract with the United States to perform work in South Vietnam. Rasmussen was fatally injured during the course of his employment when the vehicle in which he was riding was blown up by a land mine. His employment was within the coverage of the Defense Base Act. 42 U.S.C. § 1651 et seq., which incorporates the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33 U.S.C. § 901 et seq. (Act). It is undisputed that Rasmussen's surviving widow and son,1 respondents here, are entitled to death benefits under § 9 of the Act, 33 U.S.C. § 909; the issue dividing the parties and the Courts of Appeals2 is whether death benefits payable under the Act are subject to the maximum limits expressly placed on disability payments by § 6(b)(1). The Act's language and legislative history persuade us that they are not. 2 * Prior to passage of the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972, 86 Stat. 1251, both disability and death benefits payable under the Act were subject to the same minimum and maximum limitations. Former § 6(b) limited disability benefits to no more than $70 per week and no less than $18 per week. Death benefits were limited under § 9(b) to 66SCAS1651;% of the deceased's "average weekly wages," which were "considered to have been not more than $105 nor less than $27 . . . ." 33 U.S.C. § 909(e) (1970 ed.). Accordingly, weekly death benefits, like disability benefits, could not exceed $70 nor be less than $18.3 The $70 maximum on death and disability benefits, established in 1961, gradually lost real value as inflation exacted its annual toll,4 and in 1972 Congress moved to give covered workers added protection. 3 The basic formula for determining compensation for permanent total disability—66 2/3% of the employee's average weekly wages was left unchanged by the 1972 Amendments. The Amendments, however, replaced the $70 maximum limitation on disability benefits with an entirely new limitations scheme tied to the "applicable national average weekly wage." New § 6(b)(1) provides in pertinent part: 4 "[C]ompensation for disability shall not exceed the following percentages of the applicable national average weekly wage as determined by the Secretary . . . 5 "(A) 125 per centum or $167, whichever is greater, during the period ending September 30, 1973. 6 "(B) 150 per centum during the period beginning October 7 1, 1973, and ending September 30, 1974. 8 "(C) 175 per centum during the period beginning October 9 1, 1974, and ending September 30, 1975. 10 "(D) 200 per centum beginning October 1, 1975." 33 11 U.S.C. § 906(b)(1). 12 The "applicable national average weekly wage" is determined annually by the Secretary of Labor. 33 U.S.C. § 906(b)(3). The Senate Committee on Labor and Public Welfare estimated that approximately 90% of the disabled workers covered under the amended Act would receive benefits equal to a full 662/3% of their average weekly wages. S.Rep.No.92-1125, p. 5 (1972), Legislative History of the Longshoremen's and Harbor Workers' Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Labor and Public Welfare by the Subcommittee on Labor), p. 67 (1972) (hereinafter Leg.Hist.). The four-step phase-in of the section's maximum limitation from 125% to 200% of the applicable national average weekly wage was designed to ease the impact on covered employers of the increase in compensation payments, which Congress expected to at least double for most covered workers. Ibid. 13 Section 9(b) was amended in 1972 to increase death benefits to surviving spouses from 35% to 50% of the deceased's average weekly wages. Death benefits to surviving children were increased from 15% to 16 on Labor% of the deceased's average weekly wages. Total weekly death benefits payable to survivors, however, are still limited to 66s equal t% of the deceased's average weekly wage. 33 U.S.C. § 909(b). The 1972 Amendments deleted the specific dollar minimum and maximum limitations on average weekly wages and substituted in their place a provision dealing only with a minimum limitation, which was tied to the applicable national average weekly wage. Section 9(e) now provides: 14 "In computing death benefits the average weekly wages of the deceased shall be considered to have been not less than the applicable national average weekly wage as prescribed in section 6(b) but the total weekly benefits shall not exceed the average weekly wages of the deceased." 33 U.S.C. § 909(e). 15 Pursuant to § 9, respondents claimed combined death benefits of $532 per week, two-thirds of Rasmussen's average weekly wages of $798. Geo Control, its insurance carrier, and the Director of the Department of Labor's Office of Workers' Compensation Programs (OWCP), petitioners here, contended that the limitations on disability payments contained in § 6(b)(1) of the Act—initially $167 per week and now $396.50 per week5—apply to death benefits in the same manner as to benefits for permanent total disability.6 The dispute was submitted to an Administrative Law Judge, who sustained respondents' position. Petitioners appealed the adverse ruling to the Benefits Review Board, which affirmed. The legislative history of the 1972 Amendments convinced the Board that "elimination of the maximum benefit provision from Section 9(e) of the Act . . . was done consciously and intentionally" and that "failure to substitute a new maximum was . . . a deliberate action." App. to Pet. for Cert. in No. 77-1465, pp. 22A-23A. Petitioners appealed the Board's order directly to the United States Court of Appeals for the Ninth Circuit. 33 U.S.C. § 921(c). The Court of Appeals affirmed, largely adopting the reasoning of the Review Board. We granted certiorari to resolve a conflict among the Courts of Appeals on this issue,7 436 U.S. 955, 98 S.Ct. 3068, 57 L.Ed.2d 1120 (1978), and we now affirm the judgment of the Court of Appeals for the Ninth Circuit. II 16 Petitioners' case for incorporating the maximum limitations on disability benefits of § 6(b)(1) into the death benefit provisions of § 9 rests entirely on § 6(d), which in pertinent part provides that "determinations" made under the section "shall apply to employees or survivors . . . receiving compensation for permanent total disability or death benefits . . . ." 33 U.S.C. § 906(d). This subsection's references to "survivors" and "death benefits" demonstrate, according to petitioners, that Congress intended death benefits to be limited by the compensation maximums contained in § 6(b)(1). Anticipating the obvious question—why did not Congress, either expressly or by reference to § 6(b)(1), put the ceiling on death benefits back into the section of the Act dealing with death benefits—the Director of OWCP concedes that § 9(e) was "[u]ndeniably, the most obvious place to stipulate a maximum on death benefits," but suggests that Congress merely "overlooked" this fact when amending the death benefits provisions. Brief for Petitioner in No. 77-1465, pp. 28-29. 17 One need only state petitioners' argument to recognize its flaws. They suggest, on the one hand, that Congress forgot to stipulate a maximum on death benefits when it amended § 9(e), although that section had contained a fixed ceiling on death benefits since the Act's initial passage in 1927.8 On the other hand, petitioners urge that Congress remembered the question of death benefit maximums while considering § 6, and rather than incorporate a death benefits ceiling in the section of the Act dealing with death benefits, Congress consciously decided to limit death benefits in the section dealing with disability compensation. 18 The logic of petitioners' position is further weakened by the structure of § 6 itself, for if Congress had chosen that section as the vehicle for limiting death benefits, it would have been a simple matter to add the words "and death" after the word "disability" in the opening sentence of § 6(b)(1). Nor does petitioners' contention deal with the fact that Congress had the collective presence of mind to include a minimum limitation on death benefits in § 9(e). The Director maintains that the path petitioners urge us to follow, while admittedly "tortuous," ultimately leads to "what may be assumed to have been the congressional intent to avoid disparate treatment" of disability and death beneficiaries. Brief for Petitioner in No. 77-1465, pp. 11, 32. We agree that petitioners' suggested interpretation of the Act is tortuous, and believe that it is refuted by the plain language and legislative history of the pertinent provisions of the 1972 Amendments. A. 19 The language of § 9(e) is unambiguous: the average weekly wages on which death benefits are calculated can be no less than the applicable national average weekly wage. In amending § 9(e), Congress replaced specific minimum and maximum limitations on average weekly wages, and hence on death benefits, with a minimum limitation governed by the applicable national average weekly wage. That the omission of a maximum limitation on death benefits was inadvertent is disproved by the legislative history of the 1972 Amendments. 20 In 1971 two pairs of identical bills were introduced in the 92d Congress and considered by the Senate Committee on Labor and Public Welfare and the House Committee on Education and Labor. S. 525 and H.R. 3505 would have retained fixed dollar maximums for both disability and death benefits.9 In contrast, S. 2318 and H.R. 12006, which ultimately formed the nucleus of the 1972 Amendments, proposed the elimination of fixed dollar ceilings on both disability and death benefits.10 21 The difference in treatment of benefit maximums between the competing bills could hardly have gone unnoticed. Senator Eagleton opened hearings on S. 2318 and S. 525 before the Subcommittee on Labor of the Committee on Labor and Public Welfare, summarizing the intent of the competing bills as follows: 22 "S. 2318, which I cosponsored with Senator Williams, would eliminate the maximum payment limitations. . . . 23 "The second bill, S. 525, introduced by the late Senator Prouty at the request of the administration, would also increase the benefits although retaining a maximum limitation." Hearings on S. 2318 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 2d Sess., 2 (1972) (hereinafter Hearings). 24 Supporters of both measures vigorously debated the virtues and vices of fixed ceilings on disability and death benefit payments.11 The provisions of S. 2318 and H.R. 12006 as reported by their respective Committees were identical and were ultimately enacted as the Longshoremen's and Harbor Workers' Act Amendments of 1972.12 The Committee Reports accompanying the House and Senate bills clearly reflect the Committees' understanding that the minimum and maximum limitations on death benefits of former § 9(e) were being eliminated and that only a minimum benefit provision tied to the applicable national average weekly wage was being substituted in their place.13 In light of this evidence of congressional intent, we find it impossible to conclude that the absence of a fixed maximum limitation on death benefits in § 9(e) was the result of inadvertence. B 25 The benefit maximums contained in § 6(b)(1) are plainly restricted to "compensation for disability." Petitioners argue, however, that Congress made § 6(b)(1)'s disability benefits maximums applicable to death benefit through § 6(d). Close examination of the wording used by Congress in the latter provision persuades us otherwise. Section 6(d) provides: 26 "Determinations under this subsection with respect to a period shall apply to employees or survivors currently receiving compensation for permanent total disability or death benefits during such period, as well as those newly awarded compensation during such period." 27 Since there are no "determinations" made under § 6(d), its reference to "this subsection" is plainly in error. The parties agree, and we conclude, that the words "this subsection" should read "this section."14 The question thus becomes what "determinations . . . with respect to a period" did Congress have in mind when it enacted § 6(d). 28 The operative words of the subsection, "determinations" and "period," appear together in § 6 in only one other place. Paragraph (3) of § 6(b) provides: 29 "As soon as practicable after June 30 of each year, and 30 in any event prior to October 1 of such year, the Secretary shall determine the national average weekly wage for the three consecutive calendar quarters ending June 30. Such determination shall be the applicable national average wage for the period beginning with October 1 of that year and ending with September 30 of the next year. The initial determination under this paragraph shall be made as soon as practicable after [October 27, 1972]." 33 U.S.C. § 906(b)(3) (Emphasis added.) 31 Elsewhere in § 6, both minimum and maximum limits on total disability benefits are tied to the "applicable national average weekly wage as determined by the Secretary under paragraph (3) . . . ." 33 U.S.C. § 906(b)(1); see § 906(b)(2). Congress' careful use of the word "determination" and its verb form strongly suggests that it intended the term to refer only to the Secretary of Labor's annual determination under § 6(b)(3) of the national average weekly wage, not to the mathematical computation of disability benefit maximums contemplated under § 6(b)(1). This view of § 6(d) is confirmed by the provision's legislative history. The Senate Committee on Labor and Public Welfare, in its section-by-section analysis of S. 2318, stated: 32 "Subsection (d) states that determinations of national average weekly wage made with respect to a period apply to employees or survivors currently receiving compensation for permanent total disability or death benefits, as well as those who begin receiving compensation for the first time during the period." S.Rep.No.92-1125, p. 18 (1972), Leg.Hist. 80.15 33 Because determinations of the national average weekly wage govern minimum death benefits as well as both minimum and maximum total disability benefits, § 6(d)'s reference to "survivors . . . receiving . . . death benefits" is not surprising. Congress intended increases in the national average weekly wage to be reflected by corresponding increases in minimum death benefits and both minimum and maximum total disability benefits.16 See S.Rep.No.921125, supra, at 5-6, Leg.Hist. 67-68. We conclude that § 6(d) does not render the maximum limitations contained in § 6(b)(1) applicable to death benefits. C 34 Finally, petitioners urge that, the Act's language and legislative history notwithstanding, Congress could not have intended to place a "premium on death." They cannot and do not dispute, however, that Congress did precisely that in situations in which the employee's average weekly wages are less than the applicable national average weekly wage and he is survived by a spouse and one or more children.17 Congress may well have retained maximum benefit limitations in § 6(b)(1) to discourage feigned disability, a consideration wholly inapplicable to death benefits. Nor is it inconceivable that the financial needs of the disabled worker's family could increase upon his death. The typical disabled worker, though no longer physically able to ply his trade, might be able to contribute to the family's livelihood by assuming a variety of domestic responsibilities, thus releasing his spouse into the work force. The disabled worker's death would under such circumstances rob the family of an economic asset. 35 Petitioners entreat us to interpret the 1972 Amendments "to avoid an absurd and discriminatory consequence." Even if we agreed with petitioners' characterization of Congress' failure to put a ceiling on death benefits, we would be required to decline petitioners' invitation, for our examination of the language and legislative history of the 1972 Amendments convinces us that the omission was intentional. Congress has put down its pen, and we can neither rewrite Congress' words nor call it back "to cancel half a Line." Our task is to interpret what Congress has said; so doing, we conclude that death benefits payable under the Act are not subject to the maximum limitations contained in § 6(b)(1). The judgment of the Court of Appeals is 36 Affirmed. 37 Mr. Justice POWELL took no part in the consideration or decision of these cases. 1 Rasmussen's surviving son is entitled to benefits until his 18th birthday, or, if he qualifies under the Act as a student, until his 23d birthday. See 33 U.S.C. §§ 902(14), (18), and 909(b). 2 Compare 567 F.2d 1385 (case below), with Director, Office of Workers' Comp. v. O'Keefe, 545 F.2d 337 (CA3 1976), and Director, Office of Workers' Comp. v. Boughman, 178 U.S.App.D.C. 132, 545 F.2d 210 (1976). 3 Under former § 9(b) a surviving widow was entitled to 35% of her deceased husband's average wages and an additional 15% of the deceased's wages for each surviving child, subject to a limit of 662/3% of the deceased's wages. Thus, a widow without children, although nominally entitled by former § 9(b) to 35% of her deceased husband's average weekly wages was actually entitled only to 35% of $105. A widow with three or more children, however, was entitled to the maximum aggregate percentage of weekly wages (662/3), which would result in the award of $70 in weekly death benefits. The 1972 Amendments increased the percentage shares of surviving widows and children to 50 and 162/3, respectively, although the maximum aggregate percentage limitation of 662/3 was retained. 4 According to 1972 congressional reports, the average weekly wage for private, nonagricultural employees was $135 a week, while longshoremen averaged over $200 per week in some ports. H.R.Rep.No.92-1441, p. 1 (1972), Legislative History of the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Labor and Public Welfare by the Subcommittee on Labor), p. 207 (1972) (hereinafter Leg.Hist.); S.Rep.No.92-1125, p. 4 (1972), Leg.Hist., p. 66, U.S.Code Cong. & Admin.News 1972, p. 4698. The $70 limitation on death and disability benefits precluded most employees and their survivors from receiving 662/3% of the employee's average weekly wages, and in some cases the $70 maximum constituted as little as 30% of the employee's average weekly wages. S.Rep.No.92-1125, p. 5, Leg.Hist. 67. 5 The national average weekly wages determined by the Secretary of Labor since 1972, along with corresponding maximum benefit levels under § 6(b)(1), are as follows: National Section Average 6(b)(1) Effective Date Weekly Wage Maximum 11/26/72 $131.80 $167.00 10/1/73 140.36 210.54 10/1/74 149.14 261.00 10/1/75 159.19 318.38 10/1/76 171.27 342.54 10/1/77 183.61 367.22 10/1/78* 198.25 396.50 * Based on preliminary figures. 6 The dispute was initially litigated before the Deputy Commissioner for the Fifteenth Compensation District of the Department of Labor's Office of Workers' Compensation Programs (OWCP), who ruled that § 6(b)(1)'s limitations on compensation apply to death benefits as well as to benefits for permanent total disability. On appeal the Benefits Review Board vacated the decision on the ground that the Deputy Commissioner lacked authority to resolve the issue. 7 See n. 2, supra. 8 The original Act provided that compensation benefits for disability were not to exceed $25 per week. Act of Mar. 4, 1927, § 6(b), 44 Stat. 1426. The maximum compensation benefit for death was 662/3% of the employee's average weekly wages, considered to be not more than $37.50 per week. § 9(c), 44 Stat. 1430. Thus, the maximum weekly benefit for both disability and death was $25. Subsequent amendments raised benefit levels, but did not disturb the relationship between disability and death compensation maximums. See Act of June 24, 1948, ch. 623, §§ 1, 3, 62 Stat. 602; Act of July 26, 1956, ch. 735, §§ 1, 4, 70 Stat. 654, 655; Act of July 14, 1961, Pub.L. 87-87, §§ 1, 2, 75 Stat. 203. 9 S. 525, 92d Cong., 1st Sess., §§ 4(a), 8(c) (1971), Leg.Hist. 395, 399; H.R. 3505, 92d Cong., 1st Sess., §§ 4(a), 8(c) (1971), Leg.Hist. 417, 421. Section 4(a) of both the House and Senate bills provided in pertinent part: "Section 6(b) of such Act is amended to read as follows: " 'Compensation for disability shall not exceed $119 a week and compensation for total disability shall not be less that $35 per week . . ..' " Section 8(c) of both bills would have amended § 9(e) of the Act to read: "In computing death benefits the average weekly wages of the deceased shall be considered to have been not more than $178.50, nor less than $52.50, but the total weekly compensation shall not exceed the weekly wages of the deceased." 10 S. 2318, 92d Cong., 2d Sess., §§ 4(a), 10(b) (1971), Leg.Hist. 6, 10; H.R. 12006, 92d Cong., 1st Sess., §§ 4(a), 10(b) (1971), Leg.Hist. 146, 149-150. As originally introduced, § 10(b) of both the House and Senate bills would have amended § 9(e) of the Act to read: "In computing death benefits the average weekly wages of the deceased shall be considered to have been not less than $80 but the total weekly compensation shall not exceed the weekly wages of the deceased." Original § 4(a) of both bills contained a similar provision for disability benefits: "Section 6(b) of such Act is amended to read as follows: '(b) Compensation for total disability shall not be less than $54 per week: Provided, however, That, if the employee's average weekly wages as computed under section 10 are less than $54 per week, he shall receive as compensation for total disability his average weekly wages.' " 11 Witnesses representing workers covered by the Act generally supported removal of fixed ceilings on compensation payments. Witness Thomas W. Gleason, President of the International Longshoremen's Association, AFL-CIO, testified: "We strongly support the enactment of S. 2318 as the most effective proposal to accomplish the long overdue increase in the benefit levels of injured longshoremen. First and foremost, that bill would eliminate the artificial and totally unrealistic restrictions on benefit amounts. This would enable compensation awards, for the first time, to reflect realistically the loss of earnings suffered by injured employees. . . . "The administration bill, S. 525, would also raise benefit levels. The proposed increase in maximum weekly compensation from $70.00 to $119.00 represents a substantial improvement, but one that is already obsolete. . . . * * * * * "We urge that the Congress not adopt a benefit level grounded on built-in obsolescence. Far more equitable is the approach manifested in S. 2318." Hearings 156-158. See id., at 63 (testimony of Howard McGuigan, Legislative Representative, AFL-CIO), 133 (testimony of Patrick Tobin, Washington Representative, International Longshoremen's and Warehousemen's Union), 700 (testimony of Frank E. Fitzsimmons, General President, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America). Not surprisingly, representatives of employers subject to the Act's provisions were generally opposed to elimination of benefit maximums. Edward D. Vickery, representing the National Maritime Compensation Committee, opposed S. 2318, stating: "[W]e respectfully submit that it is not advisable to remove the monetary maximum benefits payable per week under the Longshoremen's Act and therefore recommend that the provisions of Section 8 of S. 525 be retained in this regard." Hearings 334. Witness Ralph Hartman, an assistant manager in the Safety and Workmen's Compensation Division of Bethlehem Steel Corporation, proposed a compromise position: "[W]e endorse the basic concepts of S. 2318, and propose innovations or variations which we consider urgent and demanding, yet equitable to all concerned. * * * * * "Of major impact and importance to the industry are the proposals to increase weekly benefits. One such proposal would amend section 6(b) of the act by increasing the minimum weekly rate from $18 to $54 and eliminating the present maximum weekly benefit rate of $70. "We agreed that the minimum rate should be increased. However, this proposal leaves us with a weekly benefit rate of two-thirds of the employee's average weekly earnings without limitation. * * * * * "We recognize the intent of the proposal, and we suggest for your consideration that the maximum weekly benefit be predicated upon the average weekly wage in the shipbuilding and ship repair industry, that it be 66 and two-thirds percent of the injured employee's average weekly wage computed under section 10, subject to a maximum of 150 percent of the average weekly wage of the shipbuilding and ship repair industry." Id., at 171-172. It is inconceivable that Congress, with this debate on benefit maximums raging all about it, unwittingly omitted a death benefit ceiling in amended § 9(b). 12 S. 2318 was passed by the Senate on September 14, 1972. 118 Cong.Rec. 30670, 30674. H.R. 12006 was passed by the House on October 14, 1972, 118 Cong.Rec. 36376, 36389, and returned to the Senate, which concurred in the identical House version. 118 Cong.Rec. 36265, 36274 (1972). 13 Precisely this understanding is expressed in the House Report which accompanied H.R. 12006: "Subsection (d) of this section amends section 9(e) of the Act, eliminating the dollar minimum and maximum set out under persent [sic] law for the average weekly wages of the deceased to be used in computing death benefits. The minimum substituted by this amendment is the applicable national average weekly wage as prescribed in section 6(b) of the Act, except that the total weekly benefits may not exceed the actual average weekly wages of the deceased." H.R.Rep.No.92-1441, p. 19 (1972), Leg.Hist. 225, U.S.Code Cong. & Admin.News 1972, p. 4716. Both the House and Senate Reports, in discussing the major provisions of the respective bills, deal expressly with the subject of minimum and maximum death benefits, noting that such benefits are "subject to a maximum of 662/3 percent of the [deceased's] average weekly wages" and to "[a] minimum . . . tied to the applicable national average weekly wage . . . ." S.Rep.No.92-1125, p. 6 (1972), Leg.Hist. 68; H.R.Rep.No.92-1441, p. 4 (1972), Leg.Hist. 210, U.S.Code Cong. & Admin.News 1972, p. 4701. 14 Section 6(d)'s reference to "this subsection" apparently refers to subsection (a) of § 5 of the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972, 86 Stat. 1252, and hence to §§ 6(b)-(d) of the Act. See Director, Office of Workers' Comp. Programs v. O'Keefe, 545 F.2d, at 344; Director, Office of Workers' Comp. Programs v. Boughman, 178 U.S.App.D.C., at 137, 545 F.2d, at 215. 15 Petitioners place heavy reliance on the following passage from the Senate Report accompanying S. 2318: "To the extent that employees receiving compensation for total permanment [sic ] disability or survivors receiving death benefits receive less than the compensation they would receive if there were no phase in, their compensation is to be increased as the ceiling moves to 200 percent." S.Rep.No.92-1125, p. 5 (1972), Leg.Hist. 67. This language does indeed suggest that the gradual annual increase in maximum benefits from 125% to 200% of the national average provided in § 6(b)(1) applies to survivors as well as to disabled employees. The quoted statement, however, is followed immediately in the Senate Report by a conflicting statement. In apparent reference to the combined effect of § 6(b)(3) and § 6(d), the Senate Report states: "The bill also requires an annual redetermination by the Secretary which will allow any increase in the national average weekly wage to be reflected by an appropriate increase in compensation payable under the Act." S.Rep.No. 92-1125, supra, at 5-6, Leg.Hist. 67-68; see n. 17, infra. This latter statement is consistent with our reading of § 6, and to the extent the earlier statement in an indication of legislative intent, we agree with the Court of Appeals that "it is overwhelmingly outweighed by the contrary purport of the legislative history as a whole." 567 F.2d, at 1388 n. 5. 16 Petitioners maintain that interpreting § 6(d) to refer to determinations of national average weekly wage would render the provision duplicative of § 10(f). Added by the 1972 Amendments, § 10(f) provides: "Effective October 1 of each year, the compensation or death benefits payable for permanent total disability or death arising out of injuries sustained after [October 27, 1972], shall be increased by a percentage equal to the percentage (if any) by which the applicable national weekly wage for the period beginning on such October 1, as determined under section 6(b), exceeds the applicable national average weekly wage, as so determined, for the period beginning with the preceding October 1." This provision makes clear that, in cases of permanent total disability and death, benefits are adjusted upward each year that the national average wage rises. Although § 10(f) gives the incremental increase in compensation payments to all beneficiaries in death and permanent total disability cases, including those unaffected by a statutory minimum or maximum, the incidental effect is partially to lift any ceiling and, to the same extent, any floor applicable to such benefits. Although § 6(d) and § 10(f) overlap substantially, they are not entirely duplicative. The latter section applies only when benefits of a particular type are received in two consecutive years. If an employee receiving benefits for total and permanent disability in year 1 died in year 2, his survivors must look to § 6(d) to determine whether the "applicable" national average weekly wage for purposes of computing minimum death benefits under § 9(e) is the national average wage determined by the Secretary for year 1, when the employee's injury occurred, or that determined for year 2, when the employee died. For example, suppose that a covered worker was permanently and totally disabled in year 1. Suppose further that at the time of the injury his average weekly wages were $90 and that the national average weekly wage was $100. The worker would be entitled under § 8(a) to disability benefits of $60 per seek (662/3% of $90), significantly more than the minimum payment of $50 per week (50% of $100) provided under § 6(b)(2). If the worker died during the following year, leaving a widow and one or more children, his survivors would be entitled to death benefits amounting to 662/3% of the national average weekly wage. Assuming the national average weekly wage had increased 5% in year 2, the question would arise whether the worker's survivors were entitled to death benefits calculated on the higher national average weekly wage. Reference to § 6(d) reveals that the worker's widow and children, having been "newly awarded" death benefits during year 2, would be entitled to calculate their benefits on the higher national average weekly wage. Further, the legislative history of the 1972 Amendments indicates that Congress was fully aware of the similarities between §§ 6(d) and 10(f). In its discussion of "maximum and minimum benefit amounts," the Senate Report accompanying S. 2318 states: "The bill also requires an annual redetermination by the Secretary which will allow any increase in the national average weekly wage to be reflected by an appropriate increase in compensation payable under the Act. A similar provision for upgrading benefits in future years for cases of permanent total disability or death benefits is contained in Section 10 of the Act (Section 11 of the bill)." S.Rep.No.92-1125, pp. 5-6 (1972), Leg.Hist. 67-68 (emphasis added). 17 A totally disabled employee is entitled to 66 2/3% of his average weekly wages, 33 U.S.C. § 908(a), or 50% of the national average weekly wage, 33 U.S.C. § 906(b)(2), whichever is greater. If the disabled employee dies, however, his surviving spouse and children are entitled to no less than 66 2/3% of the national average weekly wage or 100% of the deceased employee's average weekly wages, whichever is lesser. 33 U.S.C. § 909(e). Thus, the death of a totally disabled employee whose average weekly wages were greater than half the national average weekly wage but less than the national average weekly wage would result in an increase in benefits payable under the Act. The Court of Appeals demonstrated this fact with the following examples: "If we assume the Secretary has determined that the applicable national average weekly wage is $100, the compensation for an employee whose actual average weekly wage was $60 would be determined as follows: "1. Total Disability Benefits "Under [33 U.S.C.] § 908(a) the employee would normally receive 66 2/3 percent of his average weekly wage, or $40. However, § 906(b)(2) states that the minimum compensation shall be 50 percent of the national average weekly wage, or $50. An employee in this situation would receive $50 compensation for total disability. "2. Death Benefits "Under [33 U.S.C.] § 909(b), if, for example, the employee is survived by a widow or widower and one or more children, the total amount payable is 66 2/3 percent of the average weekly wage of the deceased, or $40. However, § 909(e) states that where the average weekly wage is less than the national average weekly wage, the national average should be used in place of the employee's actual average, and here we should take 66 2/3 percent of $100, or $66.66. § 909(e) then limits this minimum compensation to the actual average weekly wage, so the survivors would receive $60 compensation. "Making these same assumptions, the minimum compensation calculations for employees with average weekly wages greater than half the national average weekly wage and less than the national average weekly wage result in greater compensation for death than disability, as the following chart indicates: Employee's Death Total Nat'l. Avg. Avg. Benefits Disability $100 $100 $66.66 $66.66 100 99 66.66 66.00 100 75 66.66 50.00 100 60 60.00 50.00 100 51 51.00 50.00 100 50 50.00 50.00"

78

440 U.S. 93 99 S.Ct. 939 59 L.Ed.2d 171 Cyrus R. VANCE, Secretary of State, et al., Appellants,v.Holbrook BRADLEY et al. No. 77-1254. Argued Nov. 27, 1978. Decided Feb. 22, 1979. Syllabus Section 632 of the Foreign Service Act of 1946, which requires persons covered by the Foreign Service retirement system to retire at age 60, though no mandatory retirement age is established for Civil Service employees, including those who serve abroad, held not to violate the equal protection component of the Due Process Clause of the Fifth Amendment. Pp. 95-112. (a) The standard of rationality, rather than strict scrutiny, is to be used in determining whether this statute violates equal protection. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520. Pp. 96-97. (b) Congress has recognized the distinctive requirements associated with the conduct of the country's foreign relations and has provided personnel policies for the Foreign Service, a relatively small, homogeneous, and particularly able corps, separate and apart from the Civil Service system. One of the differences, the earlier retirement age for Foreign Service officers specified in § 632, operates in conjunction with statutory "selection out" provisions as part of an integral plan to create "a correctly balanced [Foreign] Service that [was] constructed so that the size of the various classes would correspond with the distribution of the work load of the Service," selection out operating primarily at the lower, and compulsory retirement at the higher, Foreign Service levels. Pp. 98-102. (c) Section 632 also furthers the congressional purpose of removing from the Foreign Service those who are sufficiently old that they may be less dependable than younger persons in facing the rigors of overseas duty. Since Congress attached special importance to the high performance in the conduct of our foreign relations, it was rational to avoid the risks of having older employees in the Foreign Service engaged in such activity, while tolerating those risks involved when older Civil Service employees work abroad. Pp. 103-106. (d) Another reason for not equating the situation with respect to Civil Service employees serving overseas with that of the Foreign Service is that about 60% of the relatively small group in the latter category serve in overseas posts at any one time, whereas only about 5% of Civil Service employees are in overseas service at any one time and such service is mainly on a voluntary basis. Pp. 106-108. (e) Even if the classification at issue here is to some extent both underinclusive and overinclusive, perfection is not required to satisfy equal protection standards, and such imperfection as exists can be rationally related to the secondary objective of legislative convenience. Pp. 108-109. (f) Appellees have not satisfied the burden of demonstrating that Congress had no reasonable basis for believing that conditions overseas generally are more demanding than those in this country and that at age 60 or before many persons begin to decline. Pp. 109-112. 436 F.Supp. 134, reversed. Sol. Gen. Wade H. McCree, Jr., Detroit, Mich., for appellants. Zona F. Hostetler, Washington, D. C., for appellees. Mr. Justice WHITE delivered the opinion of the Court. 1 The issue presented is whether Congress violates the equal protection component of the Fifth Amendment's Due Process Clause1 by requiring retirement at age 60 of federal employees covered by the Foreign Service retirement and disability system but not those covered by the Civil Service retirement and disability system. A three-judge District Court was convened to hear this challenge to the constitutionality of a federal statute by appellees, a group of former and present participants in the Foreign Service retirement system. Treating the case as submitted on cross motions for summary judgment, the District Court examined the affidavits and allegations presented by both sides, held the distinction invalid, and gave judgment for appellees. 436 F.Supp. 134 (DC 1977).2 We noted probable jurisdiction, 436 U.S. 903, 98 S.Ct. 2230, 56 L.Ed.2d 400 (1978), and now reverse. 2 * The statutory provision under attack, § 632 of the Foreign Service Act of 1946, 60 Stat. 1015, as amended, 22 U.S.C. § 1002, mandates the retirement at age 60 of participants in the Foreign Service retirement system.3 That system covered only Foreign Service officers in the State Department, but it has been expanded to include Foreign Service Reserve officers with unlimited tenure,4 career Foreign Service Staff officers and employees,5 Foreign Service Information officers and career staff in the International Communication Agency,6 and certain employees of the Agency for International Development.7 Unlike these employees, personnel covered by the Civil Service retirement system presently face no mandatory retirement age8 and, when this suit was brought, were not required to retire until age 70.9 3 Appellees have not suggested that the statutory distinction between Foreign Service personnel over age 60 and other federal employees over that age10 burdens a suspect group or a fundamental interest; and in cases where these considerations are absent, courts are quite reluctant to overturn governmental action on the ground that it denies equal protection of the laws.11 The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process12 and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. Thus, we will not overturn such a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational. The District Court and the parties are in agreement that whether § 632 violates equal protection should be determined under the standard stated in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), and similar cases; and thus that the section is valid if it is "rationally related to furthering a legitimate state interest." Id., at 312, 96 S.Ct. at 2566. 4 In arguing that § 632 easily satisfies this standard, the appellants submit that one of their legitimate and substantial goals is to recruit and train and to assure the professional competence, as well as the mental and physical reliability, of the corps of public servants who hold positions critical to our foreign relations, who more often than not serve overseas, frequently under difficult and demanding conditions, and who must be ready for such assignments at any time. Neither the District Court nor appellees dispute the validity of this goal. The appellants also submit that compulsory retirement at age 60 furthers this end in two principal ways: first, as an integral part of the personnel policies of the Service designed to create predictable promotion opportunities and thus spur morale and stimulate superior performance in the ranks; second, by removing from the Service those who are sufficiently old that they may be less equipped or less ready than younger persons to face the rigors of overseas duty in the Foreign Service. The District Court rejected each of these latter submissions and in our view erred in each instance. II 5 At least since the enactment of the Rogers Act in 1924, which created the Foreign Service by reorganizing the diplomatic and consular services into a single entity, Congress has recognized the distinctive requirements associated with the conduct of the country's foreign relations and has provided personnel policies for the Foreign Service separate and apart from the general Civil Service system. Among other differences, Foreign Service officers have been subject to an earlier retirement age than is true in the Civil Service. 6 Congress continued to give special attention to the Foreign Service when it passed the Foreign Service Act of 1946, 60 Stat. 999, which, with amendments, is still in effect. That Act reorganized the Foreign Service, provided it with a new personnel structure, and revised its retirement system. The intention was to produce a "disciplined and mobile corps of trained men . . . through entry at the bottom on the basis of competitive examination and advancement by merit to positions of command." H.R.Rep.No. 2508, 79th Cong., 2d Sess., 1 (1946).13 In furtherance of "the fundamental career principle"14 that had earlier been established for the Service, id., at 5, Congress found that "[t]he promotion system must insure the rapid advancement of men of ability to positions of responsibility and the elimination of men who have reached their ceilings of performance." Id., at 2-3. Thus, not only was initial selection to be on the basis of merit but Foreign Service officers were also to be classified based on their individual abilities and to be regularly examined for promotion by selection boards. Those officers failing to measure up to the performance expected for their class or who had failed to win promotion within an allotted time were "selected out." The aim was to stimulate superior performance and to retain only those capable of conducting themselves in this manner in widely different assignments around the world. 7 It was also in 1946 that the compulsory retirement age for most classes of Foreign Service officers was lowered from 65 to 60. This provision, § 632, was grouped with the selection-out sections of the Act.15 Together these sections "prescribe the criteria as to length of service in classes which will determine whether officers are selected out or retired," H.R.Rep.No. 2508, supra, at 90, and were designed "to assure a reasonable pyramid of promotion." Ibid. The retirement and selection-out provisions are part of an integral plan to create "a correctly balanced Service that [was] constructed so that the size of the various classes would correspond with the distribution of the workload of the Service." Ibid. Selection out operates primarily at the lower levels of the Service; compulsory retirement operates at the top of the pyramid. Congress in 1946 required officers in the then-highest category,16 career ministers, and in the next-highest, class 1, to retire at ages 65 and 60, respectively. These officers were not subject to selection out by the 1946 Act,17 but as Congress expressly noted with respect to class 1, "the mandatory provisions of the retirement for age . . . accomplish the desired result of insuring turn-over in this class." Id., at 91.18 8 The District Court nevertheless rejected this justification for § 632, stating in conclusory fashion that "recruiting and promoting younger people solely because of their youth is inherently discriminatory and cannot provide a legitimate basis for the statutory scheme." 436 F.Supp., at 136. Whether or not this is a sound legal proposition, we think that the District Court mischaracterized the purpose of § 632 and the manner in which it operates. Congress was intent not on rewarding youth qua youth, but on stimulating the highest performance in the ranks of the Foreign Service by assuring that opportunities for promotion would be available despite limits on the number of personnel classes and on the number of positions in the Service. Aiming at superior achievement can hardly be characterized as illegitimate, and it is equally untenable to suggest that providing promotion opportunities through the selection-out process and through early retirement does not play an acceptable role in the process. As this Court has previously observed with respect to the selection-out structure provided by Congress for naval officers, which was the model for the Foreign Service Act of 1946, the scheme "results in a flow of promotions commensurate with the Navy's current needs and serves to motivate qualified commissioned officers to so conduct themselves that they may realistically look forward to higher levels of command." Schlesinger v. Ballard, 419 U.S. 498, 510, 95 S.Ct. 572, 578, 42 L.Ed.2d 610 (1975). 9 The District Court also rejected this justification for § 632 because "there is no obvious reason why [it] would not equally apply to the Civil Service." 436 F.Supp., at 136. But this criticism ignores the evident congressional conviction that the country should be at great pains to assure the high quality of those occupying positions critical to the conduct of our foreign relations in the post-war world.19 Congress plainly intended to create a relatively small, homogeneous, and particularly able corps of Foreign Service officers. It was thought that the tasks performed by this corps were sufficiently demanding and important to the Nation that it was necessary to pursue more rigorous policies to ensure excellence then those generally applicable in the Government. There is no selection-out system in the Civil Service, for example; the competitive examination process is not generally as rigorous; and there are far wider variations in the nature of the various Civil Service positions and personnel. Perhaps Congress will someday attempt to devise a regime such as this one for all federal employees, but for now it has determined to employ it only in connection with what it deems to be a few distinctive groups such as the Foreign Service. See also Civil Service Reform Act of 1978, Pub.L. 95-454, §§ 3(6), 401-415, 92 Stat. 1113, 1154-1179 (creating Senior Executive Service). The judgment that the Foreign Service needs such a system more than do many other departments is one of policy, and this kind of policy, under our constitutional system, ordinarily is to be "fixed only by the people acting through their elected representatives." Firemen v. Chicago, R. I. & P. R. Co., 393 U.S. 129, 138, 89 S.Ct. 323, 328, 21 L.Ed.2d 289 (1968). Since the congressional judgment to place a high value on the proper conduct of our foreign affairs can hardly be said to be constitutionally impermissible, it was not for the District Court to refuse to accept it.20 III 10 The appellants also submit that the Foreign Service involves extended overseas duty under difficult and often hazardous conditions and that the wear and tear on members of this corps is such that there comes a time when these posts should be filled by younger persons. Mandatory retirement, it is said, minimizes the risk of less than superior performance by reason of poor health or loss of vitality. In this respect, the appellants accurately reflect the legislative record, which without doubt articulates both the purpose of maintaining a competent Foreign Service and the relationship of required retirement to that goal. 11 As we have indicated, under the Rogers Act retirement of Foreign Service officers was required at 65, whereas under the relevant statute the retirement age for most Civil Service employees with sufficient length of service was 70 years of age. Choosing the lower age for the Foreign Service was a considered choice.21 The principal sponsor of the legislation identified the reason for retiring Foreign Service and military officers earlier than Civil Service employees: 12 "I think the analogy of the foreign service officer to the Army officer and to the naval officer is much more complete than to the civil-service employee in Washington. 13 "The foreign-service officer is going hither and yon about the world, giving up fixed places of abode, often rendering difficult and hazardous service of prime importance to the United States. 14 * * * * * 15 "I call to the attention of the gentleman the fact that the kind of service which these men must render involves going to the Tropics; it involves very difficult and unsettling changes in the mode of life. The consensus of opinion was that the country was better off to retire them, as a general rule, at 65." 65 Cong.Rec. 7564-7565 (1924) (Rep. Rogers). 16 In the intervening years, the Federal Government has often repeated the concern first raised in 1924.22 Congress not only retained the lower retirement age for Foreign Service officers when it reorganized the Foreign Service in 1946, but it also lowered the age to 60. In expanding the coverage of the Foreign Service retirement system to reach others than Foreign Service officers, Congress obviously reaffirmed its own judgment that the system should provide a lower retirement age than in the Civil Service system, just as it did in 1978 when it repealed the mandatory age for the retirement of Civil Service employees but left intact the rule for those under the Foreign Service system.23 17 The District Court did not deny the legitimacy of the legislative purpose to assure a vigorous and competent Foreign Service, nor did it reject the proposition that the mandatory retirement provision could rationally be deemed to serve that end. It thus assumed that overseas duty is more demanding than stateside duty and that those over age 60 often are less able to face the rigors of the Foreign Service. The District Court nevertheless invalidated § 632 because it was deemed to discriminate against older Foreign Service employees vis-a-vis those older employees in the Civil Service who serve overseas in comparable positions for nearly as long as do Foreign Service personnel and yet are not forced to retire at age 60. Only a small percentage of all United States civilians working in foreign countries for this Government are within the scope of § 632, and, according to the District Court, it is "patently arbitrary and irrational" to impose the disadvantage of early retirement upon only those relatively few. 436 F.Supp., at 138. 18 Our first difficulty with this conclusion is that it ignores what we have already pointed out—namely, that Congress has legislated separately for the Foreign Service and has gone to great lengths to assure that those conducting our foreign relations will be sufficiently competent and reliable in all respects. If Congress attached special importance to high performance in these positions, which it seems to us that it did, it was quite rational to avoid the risks connected with having older employees in the Foreign Service but to tolerate those risks in the Civil Service. Whether or not individual judges may agree with this assessment, it is not for the courts to reject it. 19 Putting aside this rational basis for sustaining § 632, however, the District Court was in error for other reasons in invalidating the statute on the ground that Civil Service employees serving overseas under similar conditions and facing comparable hardships were not also subject to the burden of early retirement. Those subject to § 632 compose a relativelys small group of public servants furnishing the required professionalism in the Foreign Service. Approximately 60% of them are serving in overseas posts at any one time. Almost all of them are subject to assignment to such posts at any time as a condition of their employment.24 Each such person is assigned and reassigned with some regularity and each spends a substantial portion of his career overseas. Even accepting the District Court's judgment that some Civil Service employees serve in foreign posts under conditions as trying as those faced by Foreign Service officers, the latter are trained for and experienced at performing tasks in the Foreign Service; they are not freely interchangeable with Civil Service employees. It would thus appear sensible that the Government would take steps to assure itself that not just some, but all members of the Service have the capability of rendering superior performance and satisfying all of the conditions of the Service. 20 The same is not true of the Civil Service. Only approximately 5% of these employees serve overseas at any one time, and foreign duty is in the main a voluntary matter.25 We are unwilling to hold that if Congress deems early retirement a useful device to maintain the quality of the Foreign Service it may nevertheless not adopt it without insisting on the same retirement age for all Civil Service employees or at least for those Civil Service employees who choose to seek a career in overseas service. In order to staff the overseas Civil Service positions with sufficiently competent persons Congress obviously has not thought it useful to provide for retirement at age 60. At least to date, its judgment has been otherwise with respect to the Foreign Service, and that judgment is not invalid as a denial of equal protection. 21 Even if the classification involved here is to some extent both underinclusive and overinclusive, and hence the line drawn by Congress imperfect, it is nevertheless the rule that in a case like this "perfection is by no means required." Phillips Chemical Co. v. Dumas School Dist., 361 U.S. 376, 385, 80 S.Ct. 474, 480, 4 L.Ed.2d 384 (1960); accord, San Antonio School Dist. v. Rodriquez, 411 U.S. 1, 51, 93 S.Ct. 1278, 1306, 36 L.Ed.2d 16 (1973). The provision "does not offend the Constitution simply because the classification 'is not made with mathematical nicety . . . .' " Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970), quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911).26 If increasing age brings with it increasing susceptibility to physical difficulties, as the District Court was apparently willing to assume, the fact that individual Foreign Service employees may be able to perform past age 60 does not invalidate § 632 any more than did the similar truth undercut compulsory retirement at age 50 for uniformed state police in Murgia. Because Congress desired to maintain the competence of the Foreign Service, the mandatory retirement age of 60 rationally furthers its legitimate objective, and it makes no difference that some Foreign Service personnel may not be subject to the rigors of overseas service or that some Civil Service employees serve in various hardship positions in foreign lands. 22 We accept such imperfection because it is in turn rationally related to the secondary objective of legislative convenience. The Foreign Service retirement system and the Civil Service retirement system are packages of benefits, requirements, and restrictions serving many different purposes. When Congress decided to include groups of employees within one system or the other, it made its judgments in light of those amalgamations of factors. Congress was entitled to conclude that certain groups of employees share more characteristics with Foreign Service officers than with Civil Service personnel even though not serving for as long in as important overseas posts, and that other employees share more characteristics with Civil Service personnel than with Foreign Service officers even though serving some time in some overseas positions. Congress chose not to examine exactly which individual employees are likely to serve long enough in important enough positions in demanding enough locales to warrant mandatory early retirement. Rather than abandoning its primary end completely, or unnecessarily including all federal employees within the means, it drew a line around those groups of employees it thought most generally pertinent to its objective. Whether we, or the District Court, think Congress was unwise in not choosing a means more precisely related to its primary purpose is irrelevant. Califano v. Jobst, 434 U.S. 47, 56-58, 98 S.Ct. 95, 100-102 (1977); New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976). IV 23 Despite all this, appellees urge us to affirm the judgment on a basis not relied upon by the District Court: that the mandatory retirement age of 60 has no relation to the objective of reliable service in important foreign posts because overseas conditions often are not in fact more taxing than those in the United States and because arriving at 60 has an insufficient relationship to reduced physical and mental potential.27 24 Appellees rely in particular on the posture of the case—cross motions for summary judgment. They point out that their affidavits state that many overseas posts are as comfortable and safe as any in the United States; that many Foreign Service personnel under 60 have health problems; that employees just under the mandatory retirement age fill their fair share of hardship posts; and that age is not related to susceptibility to certain diseases and ailments commonly linked to life overseas. 25 Appellees seem to believe that appellants had to have current empirical proof that health and energy tend to decline somewhat by age 60 and had to offer such proof for the District Court's perusal before the statute could be sustained.28 Such evidence of course would argue powerfully for sustaining the statute, see Murgia, 427 U.S., at 314-315, n. 7, 96 S.Ct., at 2567, n. 7. But this case, as equal protection cases recurringly do, involves a legislative classification contained in a statute. In ordinary civil litigation, the question frequently is which party has shown that a disputed historical fact is more likely than not to be true. In an equal protection case of this type, however, those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker. Lindsley v. Natural Carbonic Gas Co., 220 U.S., at 78-79, 31 S.Ct., at 340; accord, Schilb v. Kuebel, 404 U.S. 357, 364, 92 S.Ct. 479, 484, 30 L.Ed.2d 502 (1971); United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 6, 91 S.Ct. 16, 17, 27 L.Ed.2d 4 (1970); seeMcGinnis v. Royster, 410 U.S. 263, 274, 93 S.Ct. 1055, 1061, 35 L.Ed.2d 282 (1973) (finding that the legislature "could have concluded rationally that" certain facts were true); Williamson v. Lee Optical Co., 348 U.S. 483, 487, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955). As we have said in a slightly different context: 26 "The District Court's responsibility for making 'findings of fact' certainly does not authorize it to resolve conflicts in the evidence against the legislature's conclusion or even to reject the legislative judgment on the basis that without convincing statistics in the record to support it, the legislative viewpoint constitutes nothing more than what the District Court in this case said was 'pure speculation.' " Firemen v. Chicago, R. I. & P. R. Co., 393 U.S., at 138-139, 89 S.Ct., at 2567. 27 Consequently, appellees were required to demonstrate that Congress has no reasonable basis for believing that conditions overseas generally are more demanding than conditions in the United States and that at age 60 or before many persons begin something of a decline in mental and physical reliability. Appellees have not satisfied these requirements. They say that many overseas posts are as pleasant as those in the United States and that many people over age 60 are healthy and many younger people are not.29 But they admit that age does in fact take its toll, and that Congress could perhaps have rationally chosen age 70 as the cutoff. Brief for Appellees 76-77; see Tr. of Oral Arg. 21-24, 27. And we have noted the common-sense proposition that aging—almost by definition inevitably wears us all down.30 Murgia, supra, at 315, 96 S.Ct., at 2567. All appellees can say to this is that "[i]t can be reasonably argued that, given modern societal facts," those between age 60 and 70 are as reliable as those under age 60. Brief for Appellees 76. But it is the very admission that the facts are arguable that immunizes from constitutional attack the congressional judgment represented by this statute: 28 "It makes no difference that the facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety." Rast v. Van Deman & Lewis Co., 240 U.S. 342, 357, 36 S.Ct. 370, 374, 60 L.Ed. 679 (1916). 29 For these reasons, the judgment appealed from must be reversed. 30 So ordered. 31 Mr. Justice MARSHALL, dissenting. 32 The Court today finds a rational basis for the forced retirement of Foreign Service personnel at age 60, on a record devoid of evidence that persons of that age or older are less capable of performing their jobs than younger employees. I adhere to my view in Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 317-327, 96 S.Ct. 2562, 2568-2573, 49 L.Ed.2d 520 (1976) (Marshall, J., dissenting), that mandatory retirement provisions warrant more than this minimal level of equal protection review. Because I believe that the statute at issue here cannot withstand closer scrutiny, I respectfully dissent. 33 * A person's interest in continued Government employment, although not "fundamental" as the law now stands, certainly ranks among the most important of his personal concerns that Government action would be likely to affect. Id., at 322-323, 96 S.Ct., at 2571-2572; cf. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Board of Regents v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972); Smith v. Texas, 233 U.S. 630, 636, 641, 34 S.Ct. 681, 684, 58 L.Ed. 1129 (1914). This interest is of special significance to older employees, because 34 "[o]nce terminated, the elderly cannot readily find alternative employment. The lack of work is not only economically damaging, but emotionally and physically draining. Deprived of his status in the community and of the opportunity for meaningful activity, fearful of becoming dependent on others for his support, and lonely in his new-found isolation, the involuntarily retired person is susceptible to physical and emotional ailments as a direct consequence of his enforced idleness. Ample clinical evidence supports the conclusion that mandatory retirement poses a direct threat to the health and life expectancy of the retired person . . . ." Massachusetts Bd. of Retirement v. Murgia, supra, 427 U.S., at 323, 96 S.Ct., at 2572 (footnote omitted). 35 When legislative action affects individual interests of such dimension, a heightened level of judicial scrutiny is appropriate. 36 In addition, mandatory retirement provisions warrant careful judicial attention because of the class on which the deprivation is imposed. To be sure, the elderly are not a "discrete and insular minorit[y]," United States v. Carolene Products Co., 304 U.S. 144, 153 n. 4, 58 S.Ct. 778, 784 n. 4, 82 L.Ed. 1234 (1938),1 in need of "extraordinary protection from the majoritarian political process." San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16 (1973). But they have suffered from discrimination based upon generalizations that are inaccurate for many, if not most, of the age group affected. See Report of the Secretary of Labor to the Congress on Age Discrimination in Employment Under Section 715 of the Civil Rights Act of 1964, The Older American Worker 8 (1965) (hereinafter Labor Report); 113 Cong.Rec. 34742 (1967) (remarks of Rep. Burke); H.R.Rep.No. 95-527, pt. 1, p. 2 (1977); Note, The Cost of Growing Old: Business Necessity and the Age Discrimination in Employment Act, 88 Yale L.J. 565, 576-577 (1979), and sources cited therein. Such generalizations stigmatize the aged as physically and mentally deficient, regardless of their individual capabilities. Cf. House Select Committee on Aging, Mandatory Retirement: The Social and Human Cost of Enforced Idleness, 95th Cong., 1st Sess., 35, 37 (Comm. Print 1977) (hereafter House Select Committee on Aging); C. Edelman & I. Siegler, Federal Age Discrimination in Employment Law 15-17 (1978) (hereafter Edelman & Siegler). Particularly in the area of employment, significant deprivations have been imposed on the basis of these stereotypes, see 29 U.S.C. § 621(a); Labor Report 18-19; Note, The Age Discrimination in Employment Act of 1967, 90 Harv.L.Rev. 380, 380-381, 383 (1976).2 37 Considering the importance of the interests at stake and the prevalence of discrimination against the aged, I cannot agree that the glancing oversight of the rational-basis test fulfills our obligation to ensure that all persons receive the equal protection of the laws. I would require proof that the Foreign Service's mandatory retirement scheme "serves important governmental objectives and [is] substantially related to achievement of those objectives." Califano v. Webster, 430 U.S. 313, 316-317, 97 S.Ct. 1192, 1194, 51 L.Ed.2d 360 (1977); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976); Massachusetts Bd. of Retirement v. Murgia, 427 U.S., at 325, 96 S.Ct., at 2572 (Marshall, J., dissenting). Measured by this standard, the Foreign Service's mandatory retirement provisions must fall. II 38 Before applying this intermediate standard, it is first necessary to determine the nature of the classifications that the statute delimits. In this case, there are two. The statutory scheme distinguishes between civil servants and Foreign Service personnel and between Foreign Service employees under 60 and those 60 or over. Appellees unequivocally claimed in this Court that the latter distinction was unconstitutional, see Brief for Appellees 76-78; Tr. of Oral Arg. 26-28, as the Court seems to concede, ante, at 109-110, and n. 27. Nonetheless, the Court summarily dismisses this claim, finding that appellees abandoned it below after the judgment of the District Court had issued. 39 By limiting its consideration of the classifications at issue, the majority has evaded the more difficult question in this case. This Court has repeatedly held that a "prevailing party may . . . assert in a reviewing court any ground in support of his judgment, whether or not that ground was relied upon or even considered by the trial court." Dandridge v. Williams, 397 U.S. 471, 475, n. 6, 90 S.Ct. 1153, 1156, n. 6, 25 L.Ed.2d 491 (1970); accord, California Bankers Assn. v. Shultz, 416 U.S. 21, 71, 94 S.Ct. 1494, 1522, 39 L.Ed.2d 812 (1974); Langnes v. Green, 282 U.S. 531, 538-539, 51 S.Ct. 243, 246, 75 L.Ed. 520 (1931); United States v. American Railway Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 563, 68 L.Ed. 1087 (1924).3 The judgment of the District Court was that § 632 of the Foreign Service Act of 1946, 22 U.S.C. § 1002, "violates the equal protection guarantees embodied in the Fifth Amendment." App. to Juris. Statement 9A. Appellees' contention that the statute discriminates against persons aged 60 and over patently is a ground for affirming that judgment. Whether appellees previously abandoned the issue is irrelevant since the purported abandonment came after the District Court had granted summary judgment. Because the Government had the opportunity to present evidence on the issue, it could in no way be prejudiced by its resurrection here. Thus, the claim is properly before us. III 40 Undoubtedly, an important objective of the Foreign Service retirement system is to assure the "professional competence" of the Foreign Service corps. See ante, at 97. The Court finds that mandatory retirement at age 60 is rationally related to this objective in two ways. In the Court's view, the physical and psychological difficulties that Foreign Service personnel face as a result of frequent overseas assignments impair their performance at an earlier age than most persons, including, it seems, civil servants exposed to much the same conditions. Hence, the majority concludes, Congress could reasonably have determined that 60-year-olds would lack the vitality necessary to perform their jobs competently. The Court also finds that the early retirement age creates "room at the top," thereby ensuring a predictable supply of promotion opportunities for younger employees. Such opportunities, it is said, are necessary to "spur morale and stimulate superior performance in the ranks." Ante, at 98. A fair reading of the record before us, however, reveals no substantial relationship between the mandatory retirement system and the articulated objective of the statutory scheme. A. 41 In my judgment, appellees have successfully challenged the Government's central premise that the pressures of transient Foreign Service life diminish the capacity of older employees to perform their jobs. There is nothing inherent in any of the positions that appellees hold to indicate that early retirement is necessary to ensure excellence. Foreign Service officers in the State Department engage in economic and political research, visa or other consular work, negotiations with representatives of foreign governments, personnel recruitment and management, and other administrative functions. See United States Dept. of State and International Communication Agency, Foreign Service Officer Careers 4-8 (1978). Officers in the International Communication Agency lecture and perform cultural and other informational duties, as well as administrative and personnel management functions. Id., at 8-10. The Agency for International Development (AID) employs economists, financial analysts, staff attorneys, auditors, and accountants in providing economic and technical assistance to other countries. U. S. Civil Service Comm'n, Federal Jobs Overseas 10-11 (1975). The mandatory retirement provisions in addition cover Foreign Service staff personnel who perform technical, administrative, clerical, or custodial work. See H.R.Rep.No. 2104, 86th Cong., 2d Sess., 15 (1960).4 42 That older workers could effectively perform such Foreign Service jobs is also suggested by the lack of an early mandatory retirement provision for civil servants who spend much of their careers abroad doing work similar to that of Foreign Service personnel. Of the over 58,000 American civilians in Government positions overseas in 1976, only the 4,787 Foreign Service personnel faced mandatory retirement at age 60. 436 F.Supp. 134, 136 (DC 1977). Moreover, discrete segments of this work force, such as the Agriculture Department's Foreign Service, spend almost as much of their tenure overseas as do members of the State Department's Foreign Service. Id., at 137. The Court discounts these figures because it finds that the need for excellence in the Foreign Service may be more compelling than in the Civil Service. Ante, at 106. However, almost 40% of the Americans working overseas for Foreign Service agencies are civil servants who are not subject to forced retirement, and AID often has its work performed on a contract basis by other agencies that do not have mandatory retirement provisions. 436 F.Supp., at 136-137; see § 5, 92 Stat. 191. Despite this broad experience with older workers in analogous situations, the Government submitted no evidence that it has encountered age-related problems in connection with these or other civil servants aged 60 and over. 43 Appellees, on the other hand, introduced a substantial amount of medical testimony dispelling any adverse correlation between job performance and advancing age, and offered to introduce more. For example, the former chief psychiatrist for the Peace Corps stated flatly that "inability to perform work satisfactorily under stressful conditions in overseas cultures has no relationship to advancing age." Affidavit of Dr. J. English 2. See also Affidavit of Dr. D. Kessler; Affidavit of T. Fox.5 Similarly, appellees have pointed to a variety of studies indicating that older workers may be more competent than younger ones in the types of jobs involved in this case. The House Report accompanying the recent amendments to the Age Discrimination in Employment Act, H.R.Rep.No.95-527, pt. 1, p. 4 (1977), noted: 44 "Testimony to the committee cited the results of various research findings which indicate that older workers were as good or better than their younger coworkers with regard to dependability, judgment, work quality, work volume, human relations, and absenteeism; and older workers were shown to have fewer accidents on the job. As Congressman Pepper stated before our committee: 'The Labor Department's finding that there is more variation in work ability within the same age group than between age groups justifies judging workers on competency, not age.' " (Footnote omitted.) The House Select Committee on Aging 34 also observed: 45 "Studies by the Department of Labor, the late Ross McFarland of the Harvard School of Public Health, the National Council on the Aging, and many other experts in the field indicate that older workers can produce a quality and quantity of work equal or superior to younger workers, that they have as good, and usually better, attendance records as younger workers, that they are as capable of learning new skills and adapting to changing circumstances when properly presented as younger workers, and that they are generally more satisfied with their jobs than younger workers." 46 See also Report of the Secretary of Labor to the Congress Under Section 715 of the Civil Rights Act of 1964: Research Materials 86 (1965); Edelman & Siegler 27-31; Note, 88 Yale L.J., at 576-577, and sources cited therein. 47 The Court closes its eyes to appellees' evidence against the mandatory retirement provision and excuses the Government from producing evidence in support of it because Congress determined that the nomadic life of Foreign Service personnel would take its toll by the age of 60. This determination, the Court concludes, rested on the "common-sense proposition that aging—almost by definition—inevitably wears us all down." Ante, at 950.6 The issue, however, is not whether persons between age 60 and 70 "wear down," but whether they are competent Foreign Service personnel. Absent any concrete evidence in the record that they are less able, or indeed, any indication that Congress even considered such information when it enacted the statute, see n. 6, supra, the Court is remitted to unsubstantiated assumptions concerning the competency of older workers for white-collar jobs. 48 With respect to sex discrimination, we have refused to accept " 'overbroad' generalizations" about the characteristics of a particular class as substantial support for a legislative classification. See Califano v. Goldfarb, 430 U.S. 199, 211, 97 S.Ct. 1021, 1029, 51 L.Ed.2d 270 (1977) (plurality opinion); Craig v. Boren, 429 U.S., at 198-199, 97 S.Ct., at 457-458; Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). I believe the same rule should apply here. See supra, at 113-115. While age, unlike sex, is at some point likely to bear a relationship to ability, I would require a showing that a substantial relationship does in fact exist. Thus, to the extent that Congress in § 632 viewed age as predictive of a decline in competence, this Court should not simply assume the correlation, but should inquire whether age is a sufficiently accurate predictor to justify the significant deprivations imposed by forced retirement. See Craig v. Boren, supra, 429 U.S., at 201-202, 97 S.Ct., at 459-460.7 Since have adduced considerable evidence demonstrating the absence of any correlation, and the Government has presented no evidence to the contrary, the record simply does not support the Court's result. 49 Not only is mandatory retirement an insufficiently accurate predictor of competence, it is also an unnecessary one. As the Foreign Service personnel system now operates, persons who do not measure up to Service standards are selected out, or terminated, after an annual review. Ante, at 99. Further, all Foreign Service employees are given biennial medical examinations, as well as special examinations when necessary, and are subject to medical selection out if they are not fit for duty. See Record 20. Under this scheme, then, the continued competence of appellants' personnel is periodically assessed. With such individualized procedures already in effect, the Government cannot realistically claim that prohibiting resort to age-based generalizations would jeopardize the quality of the Foreign Service. Cf. United States Dept. of Agriculture v. Murry, 413 U.S. 508, 518-519, 93 S.Ct. 2832, 2837-2838, 37 L.Ed.2d 767 (1973) (Marshall, J., concurring); Craig v. Boren, supra, 429 U.S., at 199, 97 S.Ct., at 458. B 50 The other ground on which the Court upholds mandatory retirement is its function of 51 "stimulating the highest performance in the ranks of the Foreign Service by assuring that opportunities for promotion would be available despite limits on the number of personnel classes and on the number of positions in the Service. Aiming at superior achievement can hardly be characterized as illegitimate, and it is equally untenable to suggest that providing promotion opportunities through the selection-out process and through early retirement does not play an acceptable role in the process." Ante, at 101. 52 This justification, it seems to me, would legitimate any retirement system in which there are a limited number of high-level positions. Indeed, the Court acknowledges as much when it deems the rationale equally applicable to Foreign Service staff personnel, who were not designated by Congress as an elite cadre but who are nonetheless subject to the mandatory retirement provisions. Ante, at 99-100, n. 15. The fundamental flaw in this analysis is that the Court ends rather than begins its inquiry by articulating the legislative goal of a competent Foreign Service. See Trimble v. Gordon, 430 U.S. 762, 769, 97 S.Ct. 1459, 1464, 52 L.Ed.2d 31 (1977). The question that the majority fails to pursue is whether, on balance, mandatory retirement at 60 substantially furthers this goal. 53 The answer is not readily apparent, for even if mandatory retirement does ensure promotional opportunities for younger employees, it also deprives the Service of the talents of persons who it has admitted are, at least at the time of their retirement, "its best officers." S.Doc.No. 14, 90th Cong., 1st Sess., 118 (1967). In the absence of any evidence that employees aged 60 and over are less able, or that forced retirement does in fact boost productivity by enhancing recruitment and promotional opportunities, this proffered justification does not withstand analysis. 54 Moreover, appellees note that most Foreign Service officers, prompted by the generous pension benefits offered by the Service, retire well before the age of 60. See Record 20. The experience of the Civil Service and private employers suggests that this pattern would not change significantly were the mandatory retirement age raised. See U. S. Civil Service Comm'n, Federal Fringe Benefit Facts 16-17, 22 (1977); Retirement Age Policies: Hearing before the House Select Committee on Aging, 95th Cong., 1st Sess., pt. 1, p. 30 (1977).8 Thus, it cannot be assumed that, absent § 632, many Foreign Service personnel would stay on to "clog the promotional stream" for younger persons, particularly since those who remain would still be subject to selection out for health reasons, poor performance, or nonpromotion. IV 55 I do not disagree, of course, that Congress could legitimately take "great pains to assure the high quality of those occupying positions critical to the conduct of our foreign relations in the post-war world." Ante, at 101. Nor do I contend that this Court should substitute its judgment for that of the Congress or the Foreign Service on the appropriate retirement system for Foreign Service personnel. I submit, however, that it is the function of this Court to assess constitutional challenges to that system on the record before us. Appellees presented substantial evidence that the mandatory retirement provision has not accomplished the purposes for which it was designed. The Government failed to establish otherwise. Where individuals' livelihood, self-esteem, and dignity are so critically affected, I do not believe the Government should be relieved of that responsibility. 56 Accordingly, I dissent. 1 Concern with assuring equal protection was part of the fabric of our Constitution even before the Fourteenth Amendment expressed it most directly in applying it to the States. See Cong. Globe 39th Cong., 1st Sess., 2510 (1866) (Rep. Miller) (all of § 1 of the Fourteenth Amendment is already within the spirit of the Declaration of Independence); id., at 2459 (Rep. Stevens) (requirement of equal protection is part of Constitution but is not applicable to the States); id., at 1034 (Rep. Bingham, speaking of his original proposal for an equal protection clause) ("[e]very word of the proposed amendment is to-day in the Constitution"). Accordingly, the Court has held that the Due Process Clause of the Fifth Amendment forbids the Federal Government to deny equal protection of the laws. E. g., Hampton v. Mow Sun Wong, 426 U.S. 88, 100, 96 S.Ct. 1895, 1904, 48 L.Ed.2d 495 (1976); Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228, 43 L.Ed.2d 514 (1975); Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 695, 98 L.Ed. 884 (1954). 2 Appellees also urged in the District Court that the mandatory retirement age violated the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633a, an Executive Order, and Civil Service regulations. A single District Judge rejected these nonconstitutional claims, Bradley v. Kissinger, 418 F.Supp. 64 (DC 1976), and no appeal was taken. Appellees abandoned their other nonconstitutional claims. See 436 F.Supp., at 135 n. 1. 3 Participation in the system is defined by 22 U.S.C. § 1063. Recently, an average of 44 employees per year have been mandatorily retired. 4 § 16, 82 Stat. 814. 5 §§ 501(a), 522(a)-(c), 90 Stat. 834, 846-847. See also § 31(b), 74 Stat. 838 (including those with 10 years of continuous service). 6 § 9, 82 Stat. 812. 7 § 16, 87 Stat. 722-723. 8 Age Discrimination in Employment Act Amendments of 1978, § 5(c), 92 Stat. 191. 9 5 U.S.C. § 8335, which was repealed by the Age Discrimination in Employment Act Amendments of 1978, § 5(c), 92 Stat. 191. 10 Since the age factor is present in both groups, the gravamen of appellees' claim, as it developed, was that § 632 discriminates on the basis of job classification. The District Court originally stated in a footnote that, besides the distinction between Foreign Service and Civil Service personnel, appellees "also claim section 632 discriminates between those who have reached age sixty and those who are younger." In response to appellants' complaint that no such issue was in the case, appellees "stressed that [they were] eschewing any such claim in this case and claiming only that Foreign Service employees were being forced to retire without a rational basis at an earlier age than government employees generally." Plaintiffs' Memorandum of Points and Authorities in Response to Defendants' Motion for Reconsideration 4 (July 21, 1977). The District Court accepted appellees' invitation to remove from its opinion the sentence and accompanying discussion, expressly finding that the contention had been abandoned. Order of July 28, 1977. See also Plaintiffs' Memorandum of Points and Authorities in Opposition to Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment 4 (Nov. 24, 1976); Brief for Appellees 77; Tr. of Oral Arg. 20-22, 24. 11 E. g., San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 40, 93 S.Ct. 1278, 1300, 36 L.Ed.2d 16 (1973). 12 Congress' recent action with respect to mandatory retirement ages shows that the political system is working. See n. 8, supra, and accompanying text. Indeed, the House preserved the Foreign Service provision, at least for the time being, to allow the appropriate international relations committee to study the issue. 123 Cong.Rec. 30556 (1977). 13 The Senate Report's general discussion of the Act is identical to that of the House Report. Cf. S. Rep. No. 1731, 79th Cong., 2d Sess., 1-10 (1946). 14 Accord, H.R.Rep.No. 229, 84th Cong., 1st Sess., 2 (1955) (emphasizing the career concept; 101 Cong.Rec. 3554 (1955) (Rep. Richards) ("The Foreign Service is a career service that a man enters at the bottom and works his way up. When the Committee on Foreign Affairs wrote the Foreign Service Act of 1946 which the Congress adopted, that principle was stressed" ). Even when it occasionally found it necessary to make lateral entry easier, Congress emphasized that it still preferred to have "expansion take place over a period of years by the admission to the Foreign Service of applicants in the lower classifications." S.Rep.No. 127, 84th Cong., 1st Sess., 8 (1955), U.S.Code Cong. & Admin.News 1955, pp. 1866, 1873; accord, id., at 10 (statement of Deputy Under Secretary of State Henderson) (State Department would also prefer to have entrance be through the junior level); Hearings before the House Committee on Foreign Affairs on H.R. 4941, 84th Cong., 1st Sess., 45 (1955) (Rep. Williams) (recognizing policy of "entry at the bottom and working up on the merit basis" ). 15 Of those now subject to § 632, only Foreign Service Staff officers and employees are not also subject to selection out. Staff personnel covered by § 632, however, are expected to be career employees, and thus it is rational to presume for them as well that mandatory retirement would create room at the top and have the resulting ripple effect down through the ranks. 16 Congress later created an even higher category of "career ambassadors." Pub.L. 250, §§ 4-9, 69 Stat. 537. 17 Congress in 1955 made class 1 officers subject to the selection-out process as well, § 7, 69 Stat. 25-26, but nothing in the legislative history of that amendment indicates any reversal of the position that most of the involuntary vacancies in the higher ranks would have to be through mandatory retirement. 18 As Congress described the system, "[m]ost separations should occur near the top (for age or through voluntary retirement) or at the bottom, while the number of men selected out in the middle classes and at middle ages would be limited." H.R.Rep.No. 2508, 79th Cong., 2d Sess., 90 (1946). 19 See 65 Cong.Rec. 7564-7565 (1924) (remarks of Rep. Rogers quoted in text, infra, at 946-947) (Foreign Service positions are often "of prime importance to the United States"); 101 Cong.Rec. 3562 (1955) (Rep. Judd) ("The first responsibility of a good government is to safeguard the security of the nation. The first line of defense in achieving this first objective . . . is our diplomatic corps and those who direct and back it up in the Department of State"); id., at 3560 (Rep. Bentley) ("Because of the duties and responsibilities they undertake, because of the services they render to American individuals and American business interests, because of their vital role in the conduct of our foreign policy, we in the Congress should demand that the service be attractive enough to get the highest type of American men and women into its ranks"); id., at 3559 (Rep. Vorys) (Foreign Service must compete successfully with other Government agencies and private businesses to get the best persons to serve overseas). When Congress added to the Foreign Service retirement system certain personnel in what is now the International Communication Agency, it found that those employees are involved in a "vital activity" and should be subject "to the same stringent judgment of performance as Foreign Service officers." 22 U.S.C. §§ 1223(a) and (e). 20 Appellees also argue that however desirable it is to create promotion opportunities it is arbitrary to impose the burden only on those over age 60. It would be better, they say, to make the selection-out standards more demanding or in some other way to avoid the retirement of those who are over 60 but quite able to perform. Even were it not irrelevant to the equal protection analysis appropriate here that other alternatives might achieve approximately the same results, the compulsory retirement age assures room at the top at a predictable time; those in the ranks know that it will not be an intolerable time before they will have the opportunity to compete for maximum responsibility. In designing this unified personnel scheme in 1946, Congress presumed that those in the highest classes would be close to or over age 60, H.R.Rep.No. 2508, supra, at 91, that those in the next two highest categories would be between 45 and 55, id., at 92, and that those in the next two ranks down would be quite young. Id., at 93. These presumptions are hardly irrational in a system designed with the intention that most personnel would begin their professional careers at the bottom of the Service and move upward with time. See id., at 5; n. 14, supra. Thus, those who have reached age 60 are likely to have achieved the top ranks of the Service, and their departures usually will have a domino effect creating opportunities at each lower level. Moreover, appellees have not shown that their alternative would be any less arbitrary than they think the present system is. As Congress recognized, selection out works best at the lower ranks where differences in merit are the greatest. See H.R.Rep.No. 229, supra n. 14, at 12. At the top ranks, where the officers have all been selected up a number of times, it is increasingly difficult to try to draw fine distinctions between persons who may all be extremely competent. And because Congress decided to grant annuities to those in the upper categories who are selected out after having dedicated much of their lives to the service, it found that "the system should be administered to reduce to a minimum the number of separations of middle-aged men, not only because of the hardship on them, but because of the expense to the Government." H.R.Rep.No. 2508, supra n. 18, at 92. 21 Congress expressly rejected setting the Foreign Service retirement age at the same level as for Civil Service personnel. 65 Cong.Rec. 7586 (1924). 22 E. g., S.Rep.No. 168, 77th Cong., 1st Sess., 2 (1941), and H.R.Rep.No. 389, 77th Cong., 1st Sess., 3 (1941) (reprinting letter from Secretary of State Hull) ("experience has shown that the continued strain of 30 years or more of service representing this Government in foreign countries in widely different climates and environments makes it desirable both from the standpoint of the Government and of officers that retirements should be authorized by law, commencing at a minimum of 50 years of age"); Fifth Report of the Committee on Retirement Policy for Federal Personnel, S.Doc.No. 89, 83d Cong., 2d Sess., pt. 5, pp. 280-281 (1954) (employees consider that "Foreign Service as compared with service in the United States has many disadvantages"); Appendix to the Report to the President by the Cabinet Committee on Federal Staff Retirement Systems, S.Doc.No. 14, 90th Cong., 1st Sess., 112 (1967) ("The mandatory retirement age of 60 is set in recognition of the need to maintain the Foreign Service as a corps of highly qualified individuals with the necessary physical stamina and intellectual vitality to perform effectively at any of some 300 posts throughout the world including those in isolated, primitive, or dangerous areas"). When Congress included career staff in the retirement system, it found that the same concern applies to them: "The Foreign Service retirement system is designed to give recognition to the need for earlier retirement age for career Foreign Service personnel who spend the majority of their working years outside the United States adjusting to new working and living conditions every few years. Staff personnel who serve for any length of time are subject to the same conditions." H.R.Rep.No. 2104, 86th Cong., 2d Sess., 31 (1960), U.S.Code Cong. & Admin.News 1960, pp. 3407, 3425. 23 Of course, nothing in the Constitution, or in this opinion, limits Congress in reversing its judgment on this score or in determining that other competing policies are more important. 24 Not only must these employees constantly be available for foreign duty, but also Foreign Service officers are required by law to spend most of their careers overseas. 22 U.S.C. § 961(a). Most but not all of the employees subject to mandatory retirement at age 60 are subject to this latter requirement. The reason for the incomplete correlation is that not all those who are participants in the Foreign Service retirement system, 22 U.S.C. § 1063, are also defined as "officer[s] or employee[s] of the Service" by § 961(a). See also 22 U.S.C. § 937 (assignment of staff officers and employees). When Congress first provided for the integration of certain Civil Service employees of the State Department into the Foreign Service, it did so specifically to increase "the number of officers available for assignment overseas . . . ." S.Rep.No. 127, supra n. 14, at 2, U.S.Code Cong. & Admin.News, 1955, p. 1867. 25 The District Court was able to state with assurance only that a relative handful of these Civil Service personnel—employees of the Foreign Agricultural Service—remain overseas for nearly as long as do Foreign Service officers. 436 F.Supp., at 137. Many of the overseas Civil Service employees work for the military and have a statutorily guaranteed right of return to posts in the United States. 10 U.S.C. § 1586. 26 "[T]he demand for perfection must inevitably compromise with the hard facts of political life." Tussman & tenBroek, The Equal Protection of the Laws, 37 Calif.L.Rev. 341, 350 (1949). 27 This latter ground amounts to a contention that there is no justification for discriminating between Foreign Service employees over 60 and those under that age. Indeed, when pressed in oral argument, appellees stated that as an entirely separate theory. Tr. of Oral Arg. 27-29. But as noted earlier, n. 10, supra, the District Court found that appellees had abandoned any claim of this kind. Appellees have not informed us of any reason to believe that the District Court erred in that regard, and we are unable to discern one. In any event, as indicated in the text, we find no merit in the contention that Congress could not conclude that age involves increased risks of less than superior performance in overseas assignments. We note also that the argument is unresponsive to the justification for § 632 canvassed in Part II of this opinion. 28 "The State is not compelled to verify logical assumptions with statistical evidence." Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 812, 96 S.Ct. 2488, 2499, 49 L.Ed.2d 220 (1976). 29 Congress allows appellants to retain individual employees for up to five years beyond retirement age, if that is determined "to be in the public interest," 22 U.S.C. § 1002, thus eliminating some of the overinclusiveness. It also has provided for mandatory early retirement due to medical disability, which mitigates underinclusiveness. 30 The biennial physical examinations relied upon by the dissent, post, at 122, do not remove the risk of unexpected health problems undercutting reliability in the interim. 1 The class is not "discrete and insular" because all of us may someday belong to it, and voters may be reluctant to impose deprivations that they themselves could eventually have to bear. However, the time lag between when the deprivations are imposed and when their effects are felt may diminish the efficacy of this political safeguard. See L. Tribe, American Constitutional Law 1077 n. 3 (1978). The safeguard is also inadequate where, as here, the deprivation affects only a small and distinct segment of the work force, of which few legislators or voters will ever be a part. Thus, the elderly should receive an extra measure of judicial protection from majoritarian political processes in circumstances such as those presented here. 2 In its statement of findings and purpose for the Age Discrimination in Employment Act of 1967, 81 Stat. 602, 29 U.S.C. § 621(a), Congress noted that: "(1) in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs; "(2) the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons; "(3) the incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave . . . ." 3 This rule does not apply where accepting the ground advanced for affirmance would result in greater relief than was granted below. See FEA v. Algonquin SNG, Inc., 426 U.S. 548, 560 n. 11, 96 S.Ct. 2295, 2302, n. 11, 49 L.Ed.2d 49 (1976); United States v. Raines, 362 U.S. 17, 27, n. 7, 80 S.Ct. 519, 526, n. 7, 4 L.Ed.2d 524 (1960). The Court quite correctly does not rely on such a possibility here, as appellees claim only that their evidence establishes the impermissibility of mandatory retirement before age 70, and seek no greater relief than was granted below. Brief for Appellees 76; Tr. of Oral Arg. 23-24. 4 The jobs at issue in this case certainly involve nothing equivalent to the "stress functions" performed by the police officers in Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 311, 96 S.Ct. 2562, 2565, 49 L.Ed.2d 520 (1976). The officers there were required, inter alia, to control prison and civil disorders, respond to emergencies and natural disasters, and apprehend criminal suspects. Id., at 310, 96 S.Ct., at 2565. 5 In addition, a pulmonary specialist testified for appellees: "While some loss of pulmonary function occurs with age, such loss does not ordinarily advance to the pathological stage where it interferes with the ability to work and otherwise function. Certainly, such normal loss would not impair the ability of an individual to work effectively between the ages of sixty and seventy." Affidavit of Dr. A. Munzer 2. 6 It may in fact be overstatement to refer to a "[c]ongressional determination" on this issue. The only express evidence that Congress predicated early mandatory retirement on this theory came during the 1924 debates on the Foreign Service Act, when one Congressman noted the hardships of the transient life and of service in the Tropics. 65 Cong.Rec. 7565. The focus of the debate, however, was on the need for better salaries and retirement provisions in order to attract qualified persons into the Service. And since modes of travel as well as conditions in the Tropics and elsewhere overseas obviously have changed considerably since 1924, reliance on this legislative justification is misplaced. Cf. United States v. Carolene Products Co., 304 U.S. 144, 153, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938). When Congress extended the Foreign Service retirement system to staff personnel, it cited the frequent adjustments that the jobs required. However, it did so in the context of recommending that staff personnel be able to enjoy the "advantages" of the retirement system, H.R.Rep.No. 2104, 86th Cong., 2d Sess., 31 (1960), that is, that they be permitted to retire at an early age if they so desired. Thus, the 1960 legislative history nowhere reflects an assessment of the competence of these personnel to perform their jobs. Given the staleness of the only express congressional "determination" before us, and Congress' failure subsequently to focus on the issue, one may question the appropriateness of the extraordinary deference the Court here affords to congressional factfinding. See ante, at 109-112. 7 The Court implies that there is a "close fit" here because it appears "sensible that the Government would take steps to assure itself that not just some, but all members of the Service have the capability of rendering superior performance and satisfying all of the conditions of the Service." Ante, at 107. Significantly, however, the majority adverts to no evidence suggesting that Congress intended mandatory retirement to serve that objective. In any event, as the Court concedes, ante, at 108, the statute is both overinclusive and underinclusive with respect to this goal. And, as demonstrated infra, this page, the Government has available other more precise means to assure professional competence and physical ability. 8 In fact, the Chairman of the Civil Service Commission testified recently: "Insofar as the general Federal work force is concerned, the removal of the mandatory age 70 provision should have little effect on recruiting younger people. Our experience in recent years has been one of high turnover at the senior levels due to early retirement." H.R.Rep.No. 95-527, pt. 1, p. 3 (1977).

12

440 U.S. 59 99 S.Ct. 919 59 L.Ed.2d 144 State of CALIFORNIA, Plaintiff,v.State of ARIZONA and the United States. No. 78, Orig. Argued Jan. 9, 1979. Decided Feb. 22, 1979. Syllabus To resolve a dispute over the ownership of certain lands, California seeks to invoke this Court's original jurisdiction in an action to quiet title against Arizona and the United States, both of which contend that the United States has not consented to be a defendant and that therefore California's motion for leave to file a bill of complaint must be denied. Title 28 U.S.C. § 2409a(a) permits the United States to be named as a defendant in an action to adjudicate a disputed title to real property in which the United States claims an interest other than a security interest or water rights; and 28 U.S.C. § 1346(f) gives the federal district courts "exclusive original jurisdiction" of actions under § 2409a to quiet title to real property in which an interest is claimed by the United States. Held : Under § 2409a(a), the United States has waived its sovereign immunity to suit in this case, and hence there is no bar to the suit. The legislative history of § 1346(f) shows no intent by Congress to divest this Court of jurisdiction over such actions in cases otherwise within its original jurisdiction, an attempt that would raise grave constitutional questions. The section did no more than assure that such jurisdiction was not conferred upon the courts of any State. Pp. 65-68. Allan J. Goodman, Deputy Atty. Gen. of Cal., Sacramento, Cal., for State of Cal. Russell A. Kolsrud, Asst. Atty. Gen. of Ariz., Phoenix, Ariz., for State of Ariz. Louis F. Claiborne, Asst. Sol. Gen., Dept. of Justice, Washington, D. C., for the U. S. Mr. Justice STEWART delivered the opinion of the Court. 1 Since the admission of California to the Union in 1850, the southeastern boundary of the State has been the middle of the channel of the Colorado River. Act of Sept. 9, 1850, 9 Stat. 452. Neither the Gadsden Purchase in 1853 nor the admission of Arizona to statehood in 1912 changed the location of this 229-mile border. The location of the river did change, however, from causes both natural and artificial. These shifts created confusion about the location of the political boundary between California and Arizona. This problem was resolved through an interstate compact, ratified by the Congress in 1966.1 The Compact fixed the boundary by stations of longitude and latitude, divorced from the continuing shifts of the Colorado River. 2 California has taken the position, however, that the Compact settled only questions of political jurisdiction, not questions of ownership of real property, since, under the "equal-footing doctrine," California holds title to all lands beneath the navigable waters within its boundaries at the time of its admission to the Union. Pollard's Lessee v. Hagan, 3 How. 212, 219, 11 L.Ed. 565. See Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550. In the early 1970's the California State Lands Commission made a study of a stretch of 11.3 miles along the river to determine what land California owns. Both Arizona and the United States have a direct interest in such a determination. Arizona, of course, has the same rights under the equal-footing doctrine as does California. The United States is the principal riparian owner in this region, and determination of the width and location of the old riverbed thus will necessarily affect its property interests. California has presented the determinations of its Lands Commission to both Arizona and the United States; neither has acquiesced in the Commission's conclusions. 3 California seeks to invoke the Court's original jurisdiction in this suit to quiet title to the lands it claims, and thus resolve its dispute with Arizona and the United States.2 To sue Arizona, it relies on 28 U.S.C. § 1251(a), which confers on this Court "original and exclusive jurisdiction of . . . all controversies between two or more States." To sue the United States, it relies on 28 U.S.C. § 1251(b), which confers on this Court "original but not exclusive jurisdiction of . . . [a]ll controversies between the United States and a State." Both these heads of original jurisdiction find their source in Art. III, § 2, of the Constitution: "In all Cases . . . in which a State shall be Party, the supreme Court shall have original Jurisdiction." 4 It is undisputed that both Arizona and the United States are indispensable parties to this litigation, and it is California's need to sue both Arizona and the United States that creates the problem before us. Specifically, Arizona and the United States contend that the United States has not agreed to be a defendant in a quiet-title action in this Court. Yet this is the only federal court in which California can sue Arizona, because Congress has conferred upon it "original and exclusive jurisdiction" (emphasis added) over controversies between States. 28 U.S.C. § 1251(a)(1). 5 It is settled that the United States must give its consent to be sued even when one of the States invokes this Court's original jurisdiction: 6 "It does not follow that because a state may be sued by the United States without its consent, therefore the United States may be sued by a state without its consent. Public policy forbids that conclusion." Kansas v. United States, 204 U.S. 331, 342, 27 S.Ct. 388, 391, 51 L.Ed. 510. 7 See Oregon v. Hitchcock, 202 U.S. 60, 26 S.Ct. 568, 50 L.Ed. 935; Minnesota v. Hitchcock, 185 U.S. 373, 387, 22 S.Ct. 650, 655, 46 L.Ed. 954 (dicta). But cf. United States v. Texas, 143 U.S. 621, 12 S.Ct. 488, 36 L.Ed. 285. Yet the Court has recognized that an action in equity cannot be maintained without the joinder of indispensable parties.3 Shields v. Barrow, 17 How. 130, 15 L.Ed. 158; Mallow v. Hinde, 12 Wheat. 193, 6 L.Ed. 599. Thus, if the United States has not consented to be sued in an action such as this, California's motion for leave to file a complaint must be denied. "A bill of complaint will not be entertained which, if filed, could only be dismissed because of the absence of the United States as a party." Arizona v. California, 298 U.S. 558, 572, 56 S.Ct. 848, 855, 80 L.Ed. 1331. See Texas v. New Mexico, 352 U.S. 991, 77 S.Ct. 552, 1 L.Ed.2d 540, but see Florida v. Georgia, 17 How. 478, 494-496, 15 L.Ed. 181 (Taney, C. J.). 8 The suit, then, could not be maintained in any court. This Court could not hear the claims against the United States because it has not waived its sovereign immunity, and a district court could not hear the claims against Arizona, because this Court has exclusive jurisdiction over such claims. To resolve this asserted dilemma, the Solicitor General has made an undertaking on behalf of the United States. He has agreed that, if California is granted leave to file its complaint in this Court against Arizona, the United States will intervene with respect to the controversy over part of the area in question.4 Because, however, we have concluded that the United States has already waived its sovereign immunity to suit in this case, we need not assess the wisdom or validity of the Solicitor General's suggestion. 9 In 1972 Congress passed Pub.L. 92-562, 86 Stat. 1176. The Act made two relevant changes in Title 28 of the United States Code.5 First, it created a new § 2409a.6 Subsection (a) of this new section provides: 10 "The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest or water rights. . . . " 11 The remainder of the section defines the procedures to be followed in such suits. Second, the Congress amended 28 U.S.C. § 1346 to add a new subsection (f). That subsection provides: 12 "The district courts shall have exclusive original jurisdiction of civil actions under section 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States." 13 It is thus clear that the United States has waived its immunity to suit in actions brought against it to quiet title to land. The question is whether suits brought under that waiver may be heard in this Court. The Solicitor General argues that they may not, that § 1346(f) operates both to confer original jurisdiction over such a case on the federal district courts and simultaneously to withdraw the original jurisdiction of this Court. If this contention were accepted, a grave constitutional question would immediately arise. That question, quite simply, is whether Congress can deprive this Court of original jurisdiction conferred upon it by the Constitution. 14 The original jurisdiction of the Supreme Court is conferred not by the Congress but by the Constitution itself. This jurisdiction is self-executing, and needs no legislative implementation. Kentucky v. Dennison, 24 How. 66, 96, 16 L.Ed. 717; Florida v. Georgia, 17 How. 478, 492, 15 L.Ed. 181; Martin v. Hunter's Lessee, 1 Wheat. 304, 332, 4 L.Ed. 97. It is clear, of course, that Congress could refuse to waive the Nation's sovereign immunity in all cases or only in some cases but in all courts. Either action would bind this Court even in the exercise of its original jurisdiction. It is similarly clear that the original jurisdiction of this Court is not constitutionally exclusive—that other courts can be awarded concurrent jurisdiction by statute. Bors v. Preston, 111 U.S. 252, 4 S.Ct. 407, 28 L.Ed. 419; Ames v. Kansas ex rel. Johnston, 111 U.S. 449, 4 S.Ct. 437, 28 L.Ed. 482. But once Congress has waived the Nation's sovereign immunity, it is far from clear that it can withdraw the constitutional jurisdiction of this Court over such suits. 15 The constitutional grant to this Court of original jurisdiction is limited to cases involving the States and the envoys of foreign nations. The Framers seem to have been concerned with matching the dignity of the parties to the status of the court: 16 "The evident purpose [of the grant of original jurisdiction] was to open and keep open the highest court of the nation for the determination, in the first instance, of suits involving a State or a diplomatic or commercial representative of a foreign government. So much was due to the rank and dignity of those for whom the provision was made . . . ." Id., at 464, 4 S.Ct., at 444. 17 See The Federalist No. 81, pp. 507-509 (H. Lodge ed. 1888) (A. Hamilton). Elimination of this Court's original jurisdiction would require those sovereign parties to go to another court, in derogation of this constitutional purpose. Congress has broad powers over the jurisdiction of the federal courts and over the sovereign immunity of the United States, but it is extremely doubtful that they include the power to limit in this manner the original jurisdiction conferred upon this Court by the Constitution. 18 Happily, we need not decide this constitutional question, for the statute in question can readily be construed in such a way as to obviate it. In so construing the statute, we no more than follow the long practice of the Court to forgo the resolution of constitutional issues except when absolutely necessary. "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598. 19 The legislative history of § 1346(f) is sparse, but the intent of Congress seems reasonably clear. The congressional purpose was simply to confine jurisdiction to the federal courts and to exclude the courts of the States, which otherwise might be presumed to have jurisdiction over quiet-title suits against the United States, once its sovereign immunity had been waived. Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483; Claflin v. Houseman, 93 U.S. 130, 136, 23 L.Ed. 833.7 The legislative history shows no intention to divest this Court of jurisdiction over quiet-title actions against the United States in cases otherwise within our original jurisdiction. We find, therefore, that § 1346(f), by vesting "exclusive original jurisdiction" of quiet-title actions against the United States in the federal district courts, did no more than assure that such jurisdiction was not conferred upon the courts of any State. 20 For these reasons we conclude that there is no bar to this original suit in the Supreme Court between California as plaintiff, and Arizona and the United States as defendants.8 Accordingly, the motion of California for leave to file its complaint is granted, and the defendants are allowed 45 days in which to answer or otherwise respond. 21 It is so ordered. 1 Interstate Compact Defining the Boundary Between the States of Arizona and California, 80 Stat. 340. 2 California points out that other title questions may arise along the entire stretch of the California-Arizona border. It urges the Court to retain jurisdiction of this case for adjudication of these potential additional controversies. We leave that suggestion for a later date. 3 Federal Rule Civ.Proc. 19(a) provides that a person is to be joined in an action if "(1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest." Rule 19(b) provides that when a person described by Rule 19(a) cannot be joined, "the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable." Rule 9(2) of this Court provides: "The form of pleadings and motions in original actions shall be governed, so far as may be, by the Federal Rules of Civil Procedure, and in other respects those rules, where their application is appropriate, may be taken as a guide to procedure in original actions in this court." This Court has dismissed cases in its original jurisdiction for want of an indispensable party, Arizona v. California, 298 U.S. 558, 572, 56 S.Ct. 848, 855, 80 L.Ed. 599; California v. Southern Pacific Co., 157 U.S. 229, 256, 15 S.Ct. 591, 602, 39 L.Ed. 683. Here, all three parties have agreed that their interests in the land in question are inextricably linked. 4 The Solicitor General maintains that the Government has a valid statute of limitations defense as to that part of this controversy that concerns the northern 2.7 miles of the 11.3-mile stretch of original riverbed in controversy. He has undertaken to intervene, therefore, only with respect to the remainder of the tract. 5 The Act also included a venue provision, codified at 28 U.S.C. § 1402(d). 6 Title 28 U.S.C. § 2409a reads: "(a) The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest or water rights. This section does not apply to trust or restricted Indian lands, nor does it apply to or affect actions which may be or could have been brought under sections 1346, 1347, 1491, or 2410 of this title, sections 7424, 7425, or 7426 of the Internal Revenue Code of 1954, as amended . . . or section 208 of the Act of July 10, 1952 . . . . "(b) The United States shall not be disturbed in possession or control of any real property involved in any action under this section pending a final judgment or decree, the conclusion of any appeal therefrom, and sixty days; and if the final determination shall be adverse to the United States, the United States nevertheless may retain such possession or control of the real property or of any part thereof as it may elect, upon payment to the person determined to be entitled thereto of an amount which upon such election the district court in the same action shall determine to be just compensation for such possession or control. "(c) The complaint shall set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property, the circumstances under which it was acquired, and the right, title, or interest claimed by the United States. "(d) If the United States disclaims all interest in the real property or interest therein adverse to the plaintiff at any time prior to the actual commencement of the trial, which disclaimer is confirmed by order of the court, the jurisdiction of the district court shall cease unless it has jurisdiction of the civil action or suit on ground other than and independent of the authority conferred by section 1346(f) of this title. "(e) A civil action against the United States under this section shall be tried by the court without a jury. "(f) Any civil action under this section shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States. "(g) Nothing in this section shall be construed to permit suits against the United States based upon adverse possession." 7 This legislation resulted from a title dispute between the United States and landowners along the Snake River in Idaho. In 1971 the Senators from Idaho introduced three bills in response to this dispute. One of the bills, S. 216, waived the Government's immunity to suit in quiet-title actions. As originally drafted, the bill would have created a new section, 28 U.S.C. § 2408a, providing: "The United States may be named a party in any civil action brought by any person to quiet title to lands claimed by the United States." Hearings, before the Subcommittee on Public Lands of the Senate Committee on Interior and Insular Affairs on S. 216, 92d Cong., 1st Sess., 1 (1971). At the hearing the administration opposed S. 216 but offered to propose an acceptable substitute. The promised changes were set forth in a letter from the Attorney General to the Senate Committee in October 1971. S.Rep. No. 92-575, pp. 5-7 (1971). Most of the changes were concerned with the waiver section and now make up subsections (b) through (g) of § 2409a. The administration also suggested a change in the bill's jurisdictional section. Rather than simply confer "original jurisdiction" on the federal district courts to hear quiet-title actions against the United States, as the original bill had provided, the administration suggested that the bill confer upon the district courts "exclusive original jurisdiction" (emphasis added). The Attorney General's letter explained the requested change as follows: "Since we believe it is the better policy to litigate questions of the Government's title in the Federal courts, the draft bill provides for exclusive jurisdiction of suits under the statute in the U. S. district courts." S.Rep.No. 92-575, supra, at 7. The administration's suggestions were, for the most part, accepted. There was no discussion of the jurisdictional section in the Report of either the House Committee, H.R.Rep. No. 92-1559 (1972), U.S.Code Cong. & Admin.News 1972, p. 4547, or the Senate Committee, supra. Nor was that provision the subject of any debate on the floor of either House. 117 Cong.Rec. 46380-46381 (1971) (passage by the Senate); 118 Cong.Rec. 35530-35531 (1972) (passage by the House of Representatives); id., at 35993 (concurrence by the Senate in the amendments made by the House). 8 Arizona argues that this is not an appropriate case for this Court's original jurisdiction, both because of its factual complexity and because it involves only title to land rather than the location of a political boundary. Such considerations are hardly relevant to the exercise of this Court's original and exclusive jurisdiction, and the fact is that several cases decided by the Court under its original jurisdiction have involved complicated questions of title to land. In Massachusetts v. New York, 271 U.S. 65, 46 S.Ct. 357, 70 L.Ed. 838, for example, the Court decided that Massachusetts did not have title to lands within New York along and within Lake Ontario. In Minnesota v. Hitchcock, 185 U.S. 373, 22 S.Ct. 650, 46 L.Ed. 954, and Wisconsin v. Lane, 245 U.S. 427, 38 S.Ct. 135, 62 L.Ed. 377, the Court decided bills brought by States to quiet title against the United States. The Congress had expressly waived sovereign immunity for those suits. Cases in which the Court has entertained actions by the United States to quiet title to lands claimed by the States include United States v. Utah, 279 U.S. 816, 49 S.Ct. 341, 73 L.Ed. 973; United States v. Oregon, 282 U.S. 804, 51 S.Ct. 100, 75 L.Ed. 722; United States v. Alabama, 313 U.S. 274, 61 S.Ct. 1011, 85 L.Ed. 1327; United States v. Wyoming, 333 U.S. 834, 68 S.Ct. 601, 92 L.Ed. 1118; United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889; United States v. Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216; and United States v. Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221.

89

440 U.S. 125 99 S.Ct. 957 59 L.Ed.2d 194 Jerome MILLER, etc., et al., Appellants,v.Marcel YOUAKIM et al. No. 77-742. Argued Oct. 30, 1978. Decided Feb. 22, 1979. Syllabus In administering its Aid to Families with Dependent Children-Foster Care program (AFDC-FC), Illinois distinguishes between children who reside with relatives and those who do not. Children placed in unrelated foster homes qualify for the AFDC-FC program, which provides greater monthly payments than the basic AFDC program. But children who are placed in relatives' homes may participate only in the basic AFDC program, because the State defines the term "foster family home" as a facility for children unrelated to the operator. Section 408(a) of the Social Security Act establishes certain conditions of AFDC-FC eligibility, among which is the requirement that the child be placed in "a foster family home." This term is defined in § 408 as "a foster family home for children which is licensed by the State in which it is situated or has been approved . . . as meeting the standards established for such licensing." The Department of Health, Education, and Welfare (HEW) has interpreted the federal statute to require that States provide AFDC-FC benefits "regardless of whether the . . . foster family home in which a child is placed is operated by a relative." Appellees are four foster children who were removed from their mother's home following a judicial determination of neglect, and the older sister and her husband. Two of these children were placed by the State in the home of their sister and her husband, which was approved as meeting the licensing standards for unrelated foster family homes. Illinois nevertheless refused to make AFDC-FC payments on behalf of the children because they were related to their foster parents. Appellees then brought this action challenging the validity of Illinois' distinction between related and unrelated foster parents. The Court of Appeals, affirming the District Court's judgment for appellees, struck down the Illinois statute. Held : The AFDC-FC program encompasses foster children who, pursuant to a judicial determination of neglect, have been placed in related homes that meet a State's licensing requirements for unrelated foster homes. Accordingly, Illinois may not exclude from its AFDC-FC program children who reside with relatives. Pp. 133-146. (a) Both the language and legislative history of § 408 show that the AFDC-FC program was designed to meet the particular needs of all eligible neglected children, whether they are placed with related or unrelated foster parents. Distinguishing among equally neglected children based on their relationship to their foster parents would conflict with Congress' overriding goal of providing the best available care for all dependent children removed from their homes pursuant to a judicial determination of neglect. Pp. 134-143. (b) Interpretations by HEW, the agency charged with administering the AFDC-FC program, are entitled to considerable deference. Pp. 143-144. 7 Cir., 562 F.2d 483, affirmed. Paul J. Bargiel, Chicago, Ill., for appellants. Robert E. Lehrer, Chicago, Ill., for appellees. Mr. Justice MARSHALL delivered the opinion of the Court. 1 At issue in this appeal is whether Illinois may exclude from its Aid to Families with Dependent Children-Foster Care program children who reside with relatives. 2 The Aid to Families with Dependent Children-Foster Care program (AFDC-FC) authorizes federal financial subsidies for the care and support of children removed from their homes and made wards of the State pursuant to a judicial determination that the children's homes were not conducive to their welfare. §§ 408(a)(1), (2) of the Social Security Act of 1935 (Act), as amended, 42 U.S.C. §§ 608(a)(1), (2).1 To qualify for Foster Care assistance, these children must be placed in a "foster family home or child-care institution." § 408(a)(3), 42 U.S.C. § 608(a)(3).2 The basic AFDC program, already in existence when the Foster Care program was enacted in 1961, provides aid to eligible children who live with a parent or with a relative specified in § 406(a) of the Act.3 In administering these programs, Illinois distinguishes between related and unrelated foster parents. Children placed in unrelated foster homes may participate in the AFDC-FC program. But those who are placed in the homes of relatives listed in § 406(a), and who are entitled to basic AFDC benefits, cannot receive AFDC-FC assistance because the State defines the term "foster family home" as a facility for children unrelated to the operator.4 Foster children living with relatives may participate only in Illinois' basic AFDC program, which provides lower monthly payments than the Foster Care program.5 The specific question presented here is whether Illinois has correctly interpreted the federal standards for AFDC-FC eligibility set forth in § 408(a) of the Act to exclude children who, because of placement with related rather than unrelated foster parents, qualify for assistance under the basic AFDC program. 3 * Appellees are four foster children, their older sister (Linda Youakim), and her husband (Marcel Youakim). In 1969, Illinois removed the children from their mother's home and made them wards of the State following a judicial determination of neglect. The Department of Children and Family Services (Department), which became responsible for the children,6 placed them in unrelated foster care facilities until 1972. During this period, they each received full AFDC-FC benefits of $105 a month. In 1972, the Department decided to place two of the children with the Youakims, who were under no legal obligation to accept or support them.7 The Department investigated the Youakim home and approved it as meeting the licensing standards established for unrelated foster family homes, as required by state law.8 Despite this approval, the State refused to make Foster Care payments on behalf of the children because they were related to Linda Youakim. 4 The exclusion of foster children living with related caretakers from Illinois' AFDC-FC program reflects the State's view that the home of a relative covered under basic AFDC is not a "foster family home" within the meaning of § 408(a)(3), the federal AFDC-FC eligibility provision at issue here. Interpreting that provision, Illinois defines a "foster family home" as 5 "a facility for child care in residences of families who receive no more than 8 children unrelated to them . . . for the purpose of providing family care and training for the children on a full-time basis. . . ." Ill.Ann.Stat., ch. 23, § 2212.17 (Supp. 1978) (emphasis added).9 6 Homes that do not meet the definition may not be licensed,10 and under state law, only licensed facilities are entitled to Foster Care payments.11 7 Although Illinois refused to make Foster Care payments, it did provide each child basic AFDC benefits of approximately $63 a month, substantially less than the applicable $105 AFDC-FC rate.12 The Youakims, however, believed that these payments were insufficient to provide proper support, and declined to accept the other two children. These children remain in unrelated foster care facilities and continue to receive AFDC-FC benefits. 8 In 1973, the Youakims and the four foster children brought a class action under 42 U.S.C. § 1983 for themselves and persons similarly situated, challenging Illinois' distinction between related and unrelated foster parents as violative of the Equal Protection Clause of the Fourteenth Amendment. A three-judge District Court certified the class, but granted summary judgment for the state officials on the constitutional claim. 374 F.Supp. 1204 (ND Ill.1974). 9 While the direct appeal from the summary judgment was pending in this Court, the Department of Health, Education, and Welfare (HEW) issued a formal interpretation of the scope of the federal AFDC-FC program, providing in pertinent part: 10 "When a child had been removed from his home by judicial determination and is placed in foster care under the various conditions specified in Section 408 of the Social Security Act and 45 CFR 233.110, the foster care rate of payment prevails regardless of whether or not the foster home is operated by a relative." HEW Program Instruction APA-PI-75-9 (Oct. 25, 1974). 11 In light of this administrative interpretation, we vacated the judgment and directed the District Court to consider whether the Illinois foster care scheme is inconsistent with the Social Security Act and therefore invalid under the Supremacy Clause, U.S.Const., Art. VI, cl. 2. Youakim v. Miller, 425 U.S. 231, 96 S.Ct. 1399, 47 L.Ed.2d 701 (1976) (per curiam ). 12 On remand, the District Court granted summary judgment for appellees, holding that the State's denial of AFDC-FC benefits and services to otherwise eligible foster children who live with relatives conflicts with §§ 401 and 408 of the Social Security Act. 431 F.Supp. 40, 45 (ND Ill.1976).13 It found that under the "plain words" of § 408, dependent children adjudged to be wards of the State, removed from their homes, and placed in approved foster homes are entitled to AFDC-FC benefits, regardless of whether their foster parent is a relative. 431 F.Supp., at 44-45. In so ruling, the court relied on HEW's interpretive ruling and on the national policy embodied in § 401 of the Act to "encourag[e] the care of dependent children in their own homes or in the homes of relatives." 431 F.Supp., at 44. Since the State had approved the Youakim home as meeting the licensing standards for unrelated foster homes, the District Court concluded that the requirements of § 408 had been satisfied. 431 F.Supp., at 43-44. 13 The Court of Appeals unanimously affirmed the judgment of the District Court. 562 F.2d 483 (CA7 1977).14 It held that the statutory definition of "foster family home" in the last sentence of § 408 does not exclude relatives' homes, and found no "implied legislative intent" to create such an exclusion. 562 F.2d, at 487; see id., at 486 n. 4. Accordingly, the Court of Appeals concluded that any home approved as meeting the State's licensing standards is a "foster family home" within the meaning of § 408. 562 F.2d, at 486, 490. 14 We noted probable jurisdiction, 434 U.S. 1060, 98 S.Ct. 1230, 55 L.Ed.2d 760 (1978), and now affirm. II 15 A participating State may not deny assistance to persons who meet eligibility standards defined in the Social Security Act unless Congress clearly has indicated that the standards are permissive. See, e. g., Burns v. Alcala, 420 U.S. 575, 580, 95 S.Ct. 1180, 1184, 43 L.Ed.2d 469 (1975); Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972); Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971); King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). Congress has specified that programs, like AFDC-FC, which employ the term "dependent child" to define eligibility must be available for "all eligible individuals." § 402(a)(10), 42 U.S.C. § 602(a)(10); see Quern v. Mandley, 436 U.S. 725, 740-743, and n. 18, 98 S.Ct. 2068, 2074-2079 and n. 18, 56 L.Ed.2d 658 (1978). Section 408(e) reinforces this general rule by requiring States to provide Foster Care benefits to "any" child who satisfies the federal eligibility criteria of § 408(a). Thus, if foster care in related homes is encompassed within § 408, Illinois may not deny AFDC-FC benefits when it places an eligible child in the care of a relative. 16 In arguing that related foster care does not fall within § 408's definition of "foster family home," appellants submit that Congress enacted the Foster Care program solely for the benefit of children not otherwise eligible for categorical assistance. We disagree. The purpose of the AFDC-FC program was not simply to duplicate the AFDC program for a different class of beneficiaries. As the language and legislative history of § 408 demonstrate, the Foster Care program was designed to meet the particular needs of all eligible neglected children, whether they are placed with related or unrelated foster parents. A. 17 Section 408(a), in defining "dependent child," establishes four conditions of AFDC-FC eligibility. First, the child must have been removed from the home of a parent or other relative specified in § 406(a), the basic AFDC eligibility provision, "as a result of a judicial determination to the effect that continuation therein would be contrary to the welfare of such child." § 408(a)(1), 42 U.S.C. § 608(a)(1). Second, the State must remain responsible for the placement and care of the child. § 408(a)(2), 42 U.S.C. § 608(a)(2). Third, the child must be placed in "a foster family home or child-care institution." § 408(a)(3), 42 U.S.C. § 608(a)(3). Fourth, the child must have been eligible for categorical assistance under the State's plan prior to initiation of the removal proceedings. § 408(a)(4), 42 U.S.C. § 608(a)(4). 18 The dispute in this case centers on the meaning of "foster family home" as used in the third eligibility requirement, § 408(a)(3) of the Act. The statute itself defines this phrase in sweeping language: 19 "[T]he term 'foster family home' means a foster family home for children which is licensed by the State in which it is situated or has been approved, by the agency of such State responsible for licensing homes of this type, as meeting the standards established for such licensing." § 408, 42 U.S.C. § 608 (last sentence). 20 Congress manifestly did not limit the term to encompass only the homes of nonrelated caretakers. Rather, any home that a State approves as meeting its licensing standards falls within the ambit of this definitional provision. That Congress intended no distinction between related and unrelated foster homes is further demonstrated by the AFDC-FC definition of "aid to families with dependent children," which includes foster care for eligible children who live "in the foster family home of any individual." § 408(b)(1), 42 U.S.C. § 608(b)(1) (emphasis added). Far from excluding related caretakers, the statute uses the broadest possible language when it refers to the homes of foster parents. 21 Appellants concede that these provisions do not explicitly bar from the Foster Care program children living with related foster parents. Juris. Statement 11; Brief for Appellants 22; Reply Brief for Appellants 5; 562 F.2d, at 486, and n. 4. Nevertheless, they infer from two isolated passages of § 408 a congressional intent to except relatives' homes from the definition of "foster family home." Appellants first rely on the definition of dependent children in §§ 408(a)(1) and (3). These provisions state in relevant part: 22 "(a) the term 'dependent child' shall, notwithstanding section [406(a)—the basic AFDC eligibility provision], also include a child (1) who would meet the requirements of such section [406(a)] except for his removal . . . from the home of a relative (specified in such section [406(a)]) as a result of a judicial determination to the effect that continuation therein would be contrary to the welfare of such child . . ., [and] (3) who has been placed in a foster family home." (Emphasis added.) 23 Appellants construe the "notwithstanding" language of § 408(a)(1) in conjunction with § 408(a)(3) as creating a class of AFDC-FC beneficiaries distinct from the dependent children covered under basic AFDC. In their view, "notwithstanding § 406(a)" means that the Foster Care definition of "dependent child" both suspends the basic AFDC requirement that the child reside with a parent or close relative, and precludes a foster child who meets that requirement from participating in the AFDC-FC program. Under appellants' construction, §§ 408(a)(1) and (3) would read: For the purpose of Foster Care aid, a "dependent child" shall only include a child who would meet the requirements of § 406(a) except that he has been both removed from the home of a parent or relative specified in § 406(a) and placed in a nonrelative's home. 24 The difficulty with this strained interpretation is that § 408(a)(1) does not use the word "only." It states that a dependent child shall "also " include a child removed from the home of a parent or relative. Thus, there is no basis for construing language that unquestionably expands the scope of the term "dependent child" as implicitly contracting the definition to exclude a child who meets the eligibility criteria of § 406(a). Because § 408(a)(1) does not have the preclusive meaning urged by appellants, it cannot implicitly modify the phrase "foster family home" in § 408(a)(3) to denote solely unrelated homes. We think it clear that neither § 408(a)(1) nor § 408(a)(3) embodies a congressional intent to constrict the broad statutory definition of "foster family home." 25 Appellants next maintain that interpreting AFDC-FC to encompass foster care by relatives would render meaningless another provision of the program. Section 408(f)(1) of the Act obligates States to ensure that 26 "services are provided which are designed to improve the conditions in the home from which [the foster child] was removed or to otherwise make possible his being placed in the home of a relative specified in section [406(a)]." 42 U.S.C. § 608(f)(1) (emphasis added). 27 According to appellants, if related homes were "foster family homes," it would be unnecessary to require States to make the home of a relative suitable for placement when the foster child already lives in a relative's home. 28 By ignoring the critical word "or," appellants misconstrue the import of this provision. To be sure, § 408(f) expresses a preference for the return of children to their original home or their transfer to the care of a relative. Congress, however, expressed this preference in the alternative. When a child is placed in related foster care, the State obviously can satisfy § 408(f)(1) by working toward his ultimate return to the home from which he was removed, in this case the mother's home. Thus, § 408(f)(1) is fully consonant with including in the AFDC-FC program foster children placed with relatives. 29 Had Congress intended to exclude related foster parents from the definition of "foster family home," it presumably would have done so explicitly, just as it restricted the definition of "child-care institution."15 Instead, the statute plainly states that a foster family home is the home of any individual licensed or approved by the State as meeting its licensing requirements, and we are unpersuaded that the provisions on which appellants rely implicitly limit that expansive definition. B 30 The legislative history and structure of the Act fortify our conclusion that the language of § 408 should be given its full scope. The Foster Care program was enacted in the aftermath of HEW's declaration that States could no longer discontinue basic AFDC assistance due to unsuitable home conditions "while the child continues to reside in the home." State Letter No. 452, Bureau of Public Assistance, Social Security Administration, Department of Health, Education, and Welfare (Jan. 17, 1961) (hereinafter Flemming Ruling). In directing States "either to improve the home conditions" or "make arrangements for the child elsewhere," ibid., the Ruling prompted Congress to encourage state protection of neglected children.16 Accordingly, Congress designed a program carefully tailored to the needs of children whose "home ENVIRONMENTS . . . ARE CLEARLY CONTRARY TO THE[IR] BEST INTERESTS,"17 and it offered the States financial subsidies to implement the plan. Neither the legislative history nor the structure of the Act indicates that Congress intended to differentiate among neglected children based on their relationship to their foster parents. Indeed, such a distinction would conflict in several respects with the overriding goal of providing the best available care for all dependent children removed from their homes because they were neglected. See S.Rep.No.165, p. 6; 107 Cong.Rec. 6388 (1961) (remarks of Sen. Byrd). 31 Although a fundamental purpose of the Foster Care program was to facilitate removal of children from their homes, Congress also took steps to "safeguard" intact family units from unnecessary upheaval. See S.Rep.No.165, p. 7; 107 Cong.Rec. 6388 (1961) (remarks of Sen. Byrd).18 To ensure that children would be removed only from homes demonstrably inimical to their welfare, Congress required participating States to obtain "a judicial determination . . . that continuation in the home was contrary to the welfare of the child." S.Rep.No.165, p. 7, U.S.Code Cong. & Admin.News 1961, p. 1722; see 108 Cong.Rec. 12693 (1962) (remarks of Sen. Eugene McCarthy); § 408(a)(1). Protecting the integrity of established family units by mandating judicial approval of a State's decision to remove a child obviously is a goal that embraces all neglected children, regardless of who the ultimate caretaker may be. Yet under appellants' construction of § 408, the State would have no obligation to justify its removal of a dependent child if he were placed with relatives, since the child could not be eligible for Foster Care benefits. But the same child, placed in unrelated facilities, would be entitled under the Foster Care program to a judicial determination of neglect. The rights of allegedly abused children and their guardians would thus depend on the happenstance of where they are placed, which is normally determined after a court has found removal necessary. We are reluctant to attribute such an anomalous intent to Congress, particularly in the absence of any indication that it meant to protect from unnecessary removal only those dependent children placed with strangers. 32 Congress was also concerned with assuring that States place neglected children in substitute homes determined appropriate for foster care. See S.Rep.No.165, pp. 6-7. To deter indiscriminate foster placements, Congress required that States establish licensing standards for every foster home, § 408 (definition of "foster family home"), and supervise the placement of foster children. § 408(a)(2); see 45 CFR §§ 220.19(a), 233.110(a)(2)(i) (1977). The legislative materials at no point suggest that Congress intended to subject some foster homes, but not others, to minimum standards of quality, as could result if § 408 excluded relatives' homes from the definition of "foster family home." Indeed, in authorizing an approval procedure as an alternative to actual licensing of "foster family homes,"19 Congress evinced its understanding that children placed in related foster homes are entitled to Foster Care benefits. At the time the AFDC-FC program was enacted in 1961, many States exempted relatives' homes from the licensing requirements imposed on all other types of settings in which foster children could be placed.20 It is therefore likely that Congress, by including an approval procedure, meant to encompass foster homes not subject to State licensing requirements in particular, related foster homes. 33 The specific services offered by the AFDC-FC program further indicate that Congress did not intend to distinguish between related and unrelated foster caretakers. Congress attached considerable significance to the unique needs and special problems of abused children who are removed from their homes by court order, distinguishing them as a class from other dependent children: 34 "The conditions which make it necessary to remove [neglected] children from unsuitable homes often result in needs for special psychiatric and medical care of the children. . . . 35 * * * * * 36 "These are the most underprivileged children and often have special problems. . . ." 108 Cong.Rec. 12692-12693 (1962) (remarks of Sen. Eugene McCarthy). 37 Section 408 embodies Congress' recognition of the peculiar status of neglected children in requiring that States continually supervise the care of these children, § 408(a)(2), develop a plan tailored to the needs of each foster child "to assure that he receives proper care," § 408(f)(1), and periodically review both the necessity of retaining the child in foster care and the appropriateness of the care being provided. See ibid.; 45 CFR §§ 220.19(b), (c), 233.110(a)(2)(ii) (1977). Additionally, the States must work to improve the conditions in the foster child's original home or to transfer him to a relative when feasible, § 408(f)(1); see supra, at 137. This procedure comports with Congress' preference for care of dependent children by relatives, a policy underlying the categorical assistance program since its inception in 1935. See S.Rep.No.628, 74th Cong., 1st Sess., 16-17 (1935); H.R.Rep.No.615, 74th Cong., 1st Sess., 10-12 (1935); Burns v. Alcala, 420 U.S., at 581-582, 95 S.Ct., at 1184-1185, § 401, as amended, 42 U.S.C. § 601, supra, at 132-133. We do not believe that Congress, when it extended assistance to foster children, meant to depart from this fundamental principle.21 Congress envisioned a remedial environment to correct the enduring effects of past neglect and abuse. There is nothing to indicate that it intended to discriminate between potential beneficiaries, equally in need of the program, on the basis of their relationship to their foster parents. 38 That Congress had no such intent is also evidenced by the 1967 amendments to the Act, which increased the federal match3¢s-FC to exceed the federal share of basic AFDC payments.22 The increase reflects Congress' recognition that state-supervised care and programs designed to meet the special needs of neglected children cost more than basic AFDC care.23 The legislative history of the amendment reveals no basis for distinguishing between related and unrelated foster homes.24 Rather, it discloses a generalized concern for the plight of all dependent children who should be sheltered from their current home environments but are forced to remain in such homes because of the States' inability to finance substitute care. S.Rep.No.744, pp. 163-165; H.R.Rep.No.544, pp. 100-101, U.S.Code Cong. & Admin.News 1967, p. 2834. Significantly, the Committee Reports suggest that increasing federal matching payments would encourage relatives "not legally responsible for support" to undertake the care of foster children "in order to obtain the best possible environment for the child." S.Rep.No.744, p. 164; H.R.Rep.No.544, p. 101, U.S.Code Cong. & Admin.News 1967, p. 3001. The amendments are therefore described, without qualification, as providing "more favorable Federal matching . . . for foster care for children removed from an unsuitable home by court order." S.Rep.No.744, p. 4; H.R.Rep.No.544, p. 4, U.S.Code Cong. & Admin.News 1967, p. 2837. C 39 Our interpretation of the statute and its legislative history is buttressed by HEW Program Instruction APA-PI-75-9, which requires States to provide AFDC-FC benefits "regardless of whether the . . . foster family home in which a child is placed is operated by a relative." In reaching this conclusion, the Department of Health, Education, and Welfare reasoned: 40 "A non-legally liable relative has no financial responsibility towards the child placed with him and the income and resources of such a relative are not factors in determining entitlement to a foster care payment. It must be noted, too, that the 1967 amendments to the Social Security Act liberalized Federal financial participation in the cost of foster care, recognizing foster family care is more costly than care in the child's own home." HEW Program Instruction APA-PI-75-9. 41 We noted in vacating the original three-judge District Court decision in this case that "[t]he interpretation of a statute by an agency charged with its enforcement is a substantial factor to be considered in construing the statute." Youakim v. Miller, 425 U.S., at 235-236, 96 S.Ct., at 1402, citing New York Dept. of Social Services v. Dublino, 413 U.S. 405, 421, 93 S.Ct. 2507, 2516, 37 L.Ed.2d 688 (1973); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 121, 93 S.Ct. 2080, 2095, 36 L.Ed.2d 772 (1973); Investment Co. Institute v. Camp, 401 U.S. 617, 626-627, 91 S.Ct. 1091, 1097, 28 L.Ed.2d 367 (1971). Administrative interpretations are especially persuasive where, as here, the agency participated in developing the provision. Adams v. United States, 319 U.S. 312, 314-315, 63 S.Ct. 1122, 1123, 87 L.Ed. 1421 (1943); United States v. American Trucking Assns, 310 U.S. 534, 549, 60 S.Ct. 1059, 1067, 87 L.Ed. 1345 (1940). HEW's Program Instruction is fully supported by the statute, its legislative history, and the common-sense observation that all dependent foster children are similarly in need of the protections and monetary benefits afforded by the AFDC-FC program.25 III 42 We think it clear that Congress designed the AFDC-FC program to include foster children placed with relatives. The overriding purpose of § 408 was to assure that the most appropriate substitute care be given to those dependent children so mistreated that a court has ordered them removed from their homes. The need for additional AFDC-FC resources—both monetary and service related to provide a proper remedial environment for such foster children arises from the status of the child as a subject of prior neglect, not from the status of the foster parent.26 Appellants attribute to Congress an intent to differentiate among children who are equally neglected and abused, based on a living arrangement bearing no relationship to the special needs that the AFDC-FC program was created to meet. Absent clear support in the statutory language or legislative history, we decline to make such an unreasonable attribution. 43 Accordingly, we hold that the AFDC-FC program encompasses foster children who, pursuant to a judicial determination of neglect, have been placed in related homes that meet a State's licensing requirements for foster homes. 44 The judgment below is affirmed. 45 Mr. Justice STEVENS took no part in the consideration or decision of this case. 1 Section 408 of the Act, 42 U.S.C. § 608, sets forth the provisions governing the Foster Care program: "Payment to States for foster home care of dependent children; definitions "Effective for the period beginning May 1, 1961— "(a) the term 'dependent child' shall, notwithstanding section 606(a) of this title, also include a child (1) who would meet the requirements of such section 606(a) or of section 607 of this title except for his removal after April 30, 1961, from the home of a relative (specified in such section 606(a)) as a result of a judicial determination to the effect that continuation therein would be contrary to the welfare of such child, (2) whose placement and care are the responsibility of (A) the State or local agency administering the State plan approved under section 602 of this title . . ., (3) who has been placed in a foster family home or child-care institution as a result of such determination, and (4) who (A) received aid under such State plan in or for the month in which court proceedings leading to such determination were initiated, or (B)(i) would have received such aid in or for such month if application had been made therefor, or (ii) in the case of a child who had been living with a relative specified in section 606(a) of this title within 6 months prior to the month in which such proceedings were initiated, would have received such aid in or for such month if in such month he had been living with (and removed from the home of) such a relative and application had been made therefor; "(b) the term 'aid to families with dependent children' shall, notwithstanding section 606(b) of this title, include also foster care in behalf of a child described in paragraph (a) of this section— "(1) in the foster family home of any individual, whether the payment therefor is made to such individual or to a public or nonprofit private child-placement or child-care agency, or "(2) in a child-care institution, whether the payment therefor is made to such institution or to a public or nonprofit private child-placement or child-care agency . . . . "(c) the number of individuals counted under clause (A) of section 603(a)(1) of this title for any month shall include individuals . . . with respect to whom expenditures were made in such month . . . . * * * * * "but only with respect to a State whose State plan approved under section 602 of this title— "(e) includes aid for any child described in paragraph (a) of this section, and "(f) includes provision for (1) development of a plan for each such child (including periodic review of the necessity for the child's being in a foster family home or child-care institution) to assure that he receives proper care and that services are provided which are designed to improve the conditions in the home from which he was removed or to otherwise make possible his being placed in the home of a relative specified in section 606(a) of this title . . . . "For purposes of this section, the term 'foster family home' means a foster family home for children which is licensed by the State in which it is situated or has been approved, by the agency of such State responsible for licensing homes of this type, as meeting the standards established for such licensing; and the term 'child-care institution' means a nonprofit private child-care institution which is licensed by the State in which it is situated or has been approved, by the agency of such State responsible for licensing or approval of institutions of this type, as meeting the standards established for such licensing." 2 The eligibility requirements of the AFDC-FC program are contained in the statutory definition of "dependent child," § 408(a). See n. 1, supra. 3 The eligibility criteria for the basic AFDC program are set forth in its statutory definition of "dependent child," § 406(a) of the Act, 42 U.S.C. § 606(a): "When used in this part— "(a) The term 'dependent child' means a needy child (1) who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with his father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew, or niece, in a place of residence maintained by one or more of such relatives as his or their own home, and (2) who is (A) under the age of eighteen, or (B) under the age of twenty-one and (as determined by the State in accordance with standards prescribed by the Secretary) a student regularly attending a school, college, or university, or regularly attending a course of vocational or technical training designed to fit him for gainful employment." 4 Ill.Ann.Stat., ch. 23, § 2212.17 (Supp. 1978). See infra, at 130-131. 5 Illinois, like most other States, has consistently authorized substantially greater AFDC-FC payments than basic AFDC benefits. See 25 Soc.Sec.Bull., No. 2, Tables 10, 14, pp. 28, 30 (Feb. 1962); U.S. Dept. of HEW, Public Assistance Statistics: April 1977, Tables A, B, 4, 6, 7 (Sept. 1977); infra, at 130-131. 6 See Ill.Rev.Stat., ch. 37, § 705-7(1)(f) (1975); Ill.Ann.Stat., ch. 23, § 5005 (Supp. 1978), as amended, Pub. Act 80-1124, 1977 Ill. Laws 3367; Pub. Act 80-1364, Ill.Legis.Serv. 713 (West 1978). 7 See Ill.Ann.Stat., ch. 23, § 10-2 (Supp. 1978). 8 Ch. 23, §§ 4-1.2 and 2217 (Supp. 1978); Illinois Department of Children and Family Services, Child Welfare Manual 2.8.2 (1976) (hereinafter DCFS Welfare Manual). The DCFS Welfare Manual recently has been revised to conform to the decisions below. The Agency documented its approval in two "Relative Home Placement Agreements" which were identical, both in form and in obligations imposed, to those used for unrelated foster care placements, except that the term "foster" was sometimes crossed out, two references were made to the familial relationship among appellees, and the usual promise of AFDC-FC benefits was deleted. See 431 F.Supp. 40, 43-44, and nn. 4, 5 (ND Ill.1976); App. 20-23. 9 Similarly, the phrase "facility for child care," which is used to define "foster family home," includes "any person, group of persons, agency, association or organization, whether established for gain or otherwise, who or which receives or arranges for care or placement of one or more children, unrelated to the operator of the facility . . . ." Ill.Ann.Stat., ch. 23, § 2212.05 (Supp. 1978) (emphasis added). 10 See §§ 2213-2215; DCFS Welfare Manual 2.8.2. 11 See Ill.Ann.Stat., ch. 23, § 5005 (Supp. 1978). 12 As an exception to this benefit differential, the State has authorized special supplemental payments, upon an adequate showing of need by related foster parents, to bring basic AFDC related foster care assistance up to $105 per month. Brief for Appellants 5; 374 F.Supp. 1204, 1206 (ND Ill.1974). Since September 1, 1974, the Youakims have received these need-based payments for their foster children. This Court previously held that receipt of the supplemental benefits does not render the case moot. Youakim v. Miller, 425 U.S. 231, 236 n. 2, 96 S.Ct. 1399, 1402 n. 2, 47 L.Ed.2d 701 (1976) (per curiam ). 13 The District Court had pendent jurisdiction under 28 U.S.C. § 1343(3) to consider this statutory issue. See Youakim v. Miller, supra, at 236, 96 S.Ct., at 1402; Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). 14 It appears that every other court to consider the issue has also concluded that dependent children who have been removed from their homes by judicial order and placed by a State in relatives' homes are entitled to AFDC-FC benefits. See Jones v. Davis, Civ. No. 76-805 (Ore., Apr. 8, 1977), appeal docketed, CA9, No. 77-2254; Alston v. Department of Health and Social Services, [1974-1976 Transfer Binder] CCH Poverty L.Rep. ¶ 22,336 (Wis.Cir.Ct., Jan. 21, 1976); Thompson v. Department of Health and Social Services, [1974-1976 Transfer Binder] CCH Poverty L.Rep. ¶ 22,303 (Wis.Cir.Ct., Jan. 9, 1976); Taylor v. Dumpson, 79 Misc.2d 379, 362 N.Y.S.2d 888 (Sup.Ct.1974), vacated as moot, 37 N.Y.2d 765, 375 N.Y.S.2d 90, 337 N.E.2d 600 (1975); Clampett v. Madigan, [1972-1974 Transfer Binder] CCH Poverty L.Rep. ¶ 17,979 (SD, May 24, 1973); Jackson v. Ohio Dept. of Public Welfare, Civ. No. C72-182 (ND Ohio, Apr. 17, 1972); Sockwell v. Maloney, 431 F.Supp. 1006, 1008, and n. 3 (Conn.1976) (dicta), aff'd, 554 F.2d 1236 (CA2 1977) (per curiam ). 15 In contrast to the broad definition of "foster family home," the term "child-care institution" is explicitly qualified to exempt private institutions operated for profit and public institutions. § 408, 42 U.S.C. § 608 (last sentence). 16 See S.Rep.No.165, 87th Cong., 1st Sess., 6-7 (1961) (hereinafter S.Rep.No.165), U.S.Code Cong. & Admin.News 1961, p. 1716; S.Rep.No.1589, 87th Cong., 2d Sess., 12-13 (1962), U.S.Code Cong. & Admin.News 1962, p. 1943; Hearings on the Public Assistance Act of 1962 before the Senate Committee on Finance, 87th Cong., 2d Sess., 65 (1962) (memorandum from HEW Secretary Ribicoff to Sen. Byrd); Hearings on the Public Welfare Amendments of 1962 before the House Committee on Ways and Means, 87th Cong., 2d Sess., 294-297, 305-307 (1962). 17 S.Rep.No.165, pp. 6-7, U.S.Code Cong. & Admin.News 1961, p. 1721. 18 This precaution reflected Congress' awareness of the events that had culminated in the Flemming Ruling. In the years preceding the Ruling, there was considerable concern that States were using suitability rules intrusively to impose various moral and social standards on parents of dependent children. See King v. Smith, 392 U.S. 309, 321-327, 88 S.Ct. 2128, 2135-2138, 20 L.Ed.2d 118 (1968). For example, by threatening to discontinue basic AFDC aid or to initiate neglect proceedings, States had coerced many welfare mothers into "voluntarily" placing their children with relatives, although a court might not have ordered removal had formal proceedings been initiated. See ibid.; W. Bell, Aid to Dependent Children 124-136 (1965). 19 § 408, 42 U.S.C. § 608 (last sentence). 20 Colo.Rev.Stat. §§ 22-12-2, 22-12-3 (1953); Fla.Stat. § 409.05 (1961); Idaho Code §§ 39-1201, 39-1202 (1961); Ill.Rev.Stat., ch. 23, §§ 2304, 2310, 2314 (1961); Iowa Code Ann. §§ 237.2, 237.3, 237.8 (1949); Md.Ann. Code, Art. 88A, §§ 20, 21 (1957); Mo.Ann.Stat. § 210.211 (1952 and Supp. 1961); Mont.Rev. Codes Ann. §§ 10-520, 10-521 (1957); N.H.Rev.Stat.Ann. §§ 170:1-170:3 (1964); Pa.Stat.Ann., Tit. 11, §§ 801, 802 (Purdon 1939 and Supp. 1964); R.I. Gen. Laws §§ 40-14-2, 40-14-11 (1956); Vt.Stat.Ann., Tit. 33, §§ 501, 502 (1959); Wis.Stat. § 48.62 (1957). 21 Despite the broad language of § 408 and the clear legislative goals behind the AFDC-FC program, appellants maintain that as a policy matter, relatives' homes should not constitute "foster family homes." They contend that permitting AFDC-FC assistance for foster children who live with relatives would create a "financial incentive" for relatives to refrain from caring for needy children until the children are removed from their homes by court order. Brief for Appellants 26. Even if this were true, "issue[s] of legislative policy . . . [are] better addressed to the wisdom of Congress than to the judgment of this Court." Marquette Nat. Bank v. First of Omaha Service Corp., 439 U.S. 299, 319, 99 S.Ct. 540, 551, 58 L.Ed.2d 534 (1978). Furthermore, we view the inclusion of related foster homes in § 408 as fully consistent with Congress' determination that homes of parents and relatives provide the most suitable environment for children. Congress evidently believed that encouraging relatives to care for these "most underprivileged children," 108 Cong.Rec. 12693 (1962) (remarks of Sen. Eugene McCarthy), whatever the cost, was worth the price. Indeed, if the State's interpretation of the statute were correct, relatives would have an incentive to refuse to accept foster children altogether. Concerned relatives might subordinate their interests in supervising the well-being of youngsters they love to ensure that these children receive the greater cash benefits and services available only to foster children placed in unrelated homes. Similarly, the availability of significantly more financial assistance under AFDC-FC might motivate child-placement authorities to refrain from placing foster children with relatives even when these homes are best suited to the needs of the child. 22 Social Security Amendments of 1967, Pub.L. 90-248, § 205(b), 81 Stat. 892, § 403(a)(1)(B) of the Social Security Act, as amended, 42 U.S.C. § 603(a)(1)(B); see S.Rep.No.744, 90th Cong., 1st Sess., 286 (1967) (hereinafter S.Rep.No.744), U.S.Code Cong. & Admin.News 1967, p. 2834. These amendments also require all States that participate in the basic AFDC program to establish a Foster Care program. 81 Stat. 892, adding § 402(a)(20) of the Act, 42 U.S.C. § 602(a)(20). 23 See S.Rep.No.744, pp. 163-164; H.R.Rep.No.544, 90th Cong., 1st Sess., 100-101 (1967) (hereinafter H.R.Rep.No.544). 24 Nor does the Illinois system indicate why such a distinction should be made. Since a related foster parent is subject to the same state-imposed responsibilities as a nonrelated foster parent, their costs must be equivalent. 25 Relying on General Electric Co. v. Gilbert, 429 U.S. 125, 142-143, 97 S.Ct. 401, 411-413, 50 L.Ed.2d 343 (1976), appellants maintain that the Program Instruction conflicts with an earlier HEW pronouncement and therefore deserves little weight. They refer to an inconsistent interpretation of § 408 sent to Illinois authorities in 1971 by a regional HEW official, which stated that foster children placed in related homes are not eligible for Foster Care benefits under the federal program. However, this correspondence was not approved by HEW's General Counsel or by any departmental official in the national office. See letter from HEW's Assistant General Counsel to Illinois Special Assistant Attorney General Richard Ryan (Dec. 22, 1976), App. to Brief for United States as Amicus Curiae 1a. Since the letter did not reflect an official position, we take the Program Instruction to be the agency's first and only national interpretation concerning § 408's coverage of foster care by relatives. Appellants' reliance on General Electric Co. v. Gilbert, supra, is therefore misplaced, and we are bound by the "principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969) (footnote omitted); see Board of Governors of the Federal Reserve System v. First Lincolnwood Corp., 439 U.S. 234, 251, 99 S.Ct. 505, 514-515, 58 L.Ed.2d 484 (1978); Zemel v. Rusk, 381 U.S. 1, 11-12, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1965); Udall v. Tallman, 380 U.S. 1, 16-18, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). 26 Illinois recognizes as much by providing special grants to some foster children placed with relatives which are not available to other basic AFDC recipients. See n. 12, supra.

12

59 L.Ed.2d 153 99 S.Ct. 925 440 U.S. 69 GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., Petitioner,v.FEDERAL TRADE COMMISSION. No. 77-654. Argued Dec. 4, 1978. Decided Feb. 22, 1979. Syllabus Section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, prohibits price discrimination by sellers, but under § 2(b) the seller may rebut a prima facie case of price discrimination by showing that his lower price was made in good faith to meet a competitor's equally low price. Section 2(f) makes it unlawful "for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section." Petitioner, in an effort to achieve cost savings, entered into an agreement with its longtime supplier, Borden Co., under which Borden would supply "private label" (as opposed to "brand label") milk to petitioner's stores in the Chicago area. Petitioner refused Borden's initial offer in implementation of the agreement and solicited offers from other companies, resulting in a lower offer from one of Borden's competitors. At this point petitioner's buyer informed Borden that its offer was "not even in the ball park" and that a $50,000 improvement in the offer "would not be a drop in the bucket." Borden then submitted a new offer that was substantially better than its competitor's and petitioner accepted it. Based on these facts, the Federal Trade Commission charged petitioner with violating § 5 of the Federal Trade Commission Act for allegedly misleading Borden during contract negotiations by failing to inform it that its second offer was better than its competitor's, and with violating § 2(f) by knowingly inducing or receiving price discrimination from Borden. The FTC dismissed the § 5 charge on the ground that the issue was what amount of disclosure is required of the buyer during contract negotiations and that to impose a duty of affirmative disclosure would be "contrary to normal business practice" and "contrary to the public interest," but held that petitioner had violated § 2(f), the FTC rejecting, inter alia, petitioner's defense that the Borden offer had been made to meet competition. The Court of Appeals affirmed. Held: A buyer who has done no more than accept the lower of two prices competitively offered does not violate § 2(f) provided the seller has a meeting-competition defense, and here where Borden had such a defense and thus could not be liable under § 2(b) petitioner, who did no more than accept Borden's offer, cannot be liable under § 2(f). Pp. 75-85. (a) Since liability under § 2(f) is limited to price discrimination "prohibited by this section," and since only §§ 2(a) and (b) deal with seller liability for price discrimination, a buyer, under § 2(f)'s plain meaning, cannot be liable if a prima facie case cannot be established against a seller or if the seller has an affirmative defense. Automatic Canteen Co. of America v. FTC, 346 U.S. 61, 73 S.Ct. 1017, 97 L.Ed. 1454. In either situation, there is no price discrimination "prohibited by this section." And the legislative history of § 2(f) confirms the conclusion that buyer liability under § 2(f) is dependent on seller liability under § 2(a). Pp. 75-78. (b) To rewrite § 2(f) to hold a buyer liable even though there is no price discrimination "prohibited by this section" would contravene the rule that this Court "cannot supply what Congress has studiously omitted," FTC v. Simplicity Pattern Co., 360 U.S. 55, 67, 79 S.Ct. 1005, 3 L.Ed.2d 1079. Pp. 78-79. (c) Imposition of § 2(f) liability on petitioner would lead to price uniformity and rigidity contrary to the purposes of other antitrust legislation. P. 80. (d) A duty of affirmative disclosure requiring a buyer to inform a seller that his bid has beaten competition would frustrate competitive bidding and, by reducing uncertainty, would lead to price matching and anticompetitive cooperation among sellers. P. 80. (e) The effect of the finding that petitioner's same conduct violated § 2(f) as violated § 5 of the Federal Trade Commission Act is to impose the same duty of affirmative disclosure that the FTC condemned as anticompetitive, "contrary to the public interest," and "contrary to normal business practice," in dismissing the § 5 charge. Pp. 80-81. (f) The test for determining when a seller has a valid meeting-competition defense is whether he can "show the existence of facts which would lead a reasonable and prudent person to believe that the granting of a lower price would in fact meet the equally low price of a competitor." FTC v. A. E. Staley Mfg. Co., 324 U.S. 746, 65 S.Ct. 971, 89 L.Ed. 1338. Under the circumstances of this case, Borden did act reasonably and in good faith when it made its second bid, since, in light of its established business relationship with petitioner, it could justifiably conclude that petitioner's statements about the first offer were reliable and that it was necessary to make another bid offering substantial concessions to avoid losing its account with petitioner. Pp. 82-84. 557 F.2d 971, reversed. Denis McInerney, New York City, for petitioner. Frank H. Easterbrook, Washington, D. C., for respondent. Mr. Justice STEWART delivered the opinion of the Court. 1 The question presented in this case is whether the petitioner, the Great Atlantic & Pacific Tea Co. (A&P), violated § 2(f) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13(f),1 by knowingly inducing or receiving illegal price discriminations from the Borden Co. (Borden). 2 The alleged violation was reflected in a 1965 agreement between A&P and Borden under which Borden undertook to supply "private label" milk to more than 200 A&P stores in a Chicago area that included portions of Illinois and Indiana. This agreement resulted from an effort by A&P to achieve cost savings by switching from the sale of "brand label" milk (milk sold under the brand name of the supplying dairy) to the sale of "private label" milk (milk sold under the A&P label). 3 To implement this plan, A&P asked Borden, its longtime supplier, to submit an offer to supply under private label certain of A&P's milk and other dairy product requirements. After prolonged negotiations, Borden offered to grant A&P a discount for switching to private-label milk provided A&P would accept limited delivery service. Borden claimed that this offer would save A&P $410,000 a year compared to what it had been paying for its dairy products. A&P, however, was not satisfied with this offer and solicited offers from other dairies. A competitor of Borden, Bowman Dairy, then submitted an offer which was lower than Borden's.2 4 At this point, A&P's Chicago buyer contacted Borden's chain store sales manager and stated: "I have a bid in my pocket. You [Borden] people are so far out of line it is not even funny. You are not even in the ball park." When the Borden representative asked for more details, he was told nothing except that a $50,000 improvement in Borden's bid "would not be a drop in the bucket." 5 Borden was thus faced with the problem of deciding whether to rebid. A&P at the time was one of Borden's largest customers in the Chicago area. Moreover, Borden had just invested more than $5 million in a new dairy facility in Illinois. The loss of the A&P account would result in underutilization of this new plant. Under these circumstances, Borden decided to submit a new bid which doubled the estimated annual savings to A&P, from $410,000 to $820,000. In presenting its offer, Borden emphasized to A&P that it needed to keep A&P's business and was making the new offer in order to meet Bowman's bid. A&P then accepted Borden's bid after concluding that it was substantially better than Bowman's. 6 * Based on these facts, the Federal Trade Commission filed a three-count complaint against A&P. Count I charged that A&P had violated § 5 of the Federal Trade Commission Act by misleading Borden in the course of negotiations for the private-label contract, in that A&P had failed to inform Borden that its second offer was better than the Bowman bid.3 Count II involving the same conduct, charged that A&P had violated § 2(f) of the Clayton Act, as amended by the Robinson-Patman Act, by knowingly inducing or receiving price discriminations from Borden. Count III charged that Borden and A&P had violated § 5 of the Federal Trade Commission Act by combining to stabilize and maintain the retail and wholesale prices of milk and other dairy products. 7 An Administrative Law Judge found, after extended discovery and a hearing that lasted over 110 days, that A&P had acted unfairly and deceptively in accepting the second offer from Borden and had therefore violated § 5 of the Federal Trade Commission Act as charged in Count I. The Administrative Law Judge similarly found that this same conduct had violated § 2(f). Finally, he dismissed Count III on the ground that the Commission had not satisfied its burden of proof. 8 On review, the Commission reversed the Administrative Law Judge's finding as to Count I. Pointing out that the question at issue was what amount of disclosure is required of the buyer during contract negotiations, the Commission held that the imposition of a duty of affirmative disclosure would be "contrary to normal business practice and we think, contrary to the public interest." Despite this ruling, however, the Commission held as to Count II that the identical conduct on the part of A&P had violated § 2(f), finding that Borden had discriminated in price between A&P and its competitors, that the discrimination had been injurious to competition, and that A&P had known or should have known that it was the beneficiary of unlawful price discrimination.4 The Commission rejected A&P's defenses that the Borden bid had been made to meet competition and was cost justified.5 9 A&P filed a petition for review of the Commission's order in the Court of Appeals for the Second Circuit. The court held that substantial evidence supported the findings of the Commission and that as a matter of law A&P could not successfully assert a meeting-competition defense because it, unlike Borden, had known that Borden's offer was better than Bowman's.6 Finally, the court held that the Commission had correctly determined that A&P had no cost-justification defense. 557 F.2d 971. Because the judgment of the Court of Appeals raises important issues of federal law, we granted certiorari. 435 U.S. 922, 98 S.Ct. 1483, 55 L.Ed.2d 515. II 10 The Robinson-Patman Act was passed in response to the problem perceived in the increased market power and coercive practices of chainstores and other big buyers that threatened the existence of small independent retailers. Notwithstanding this concern with buyers, however, the emphasis of the Act is in § 2(a), which prohibits price discriminations by sellers. Indeed, the original Patman bill as reported by Committees of both Houses prohibited only seller activity, with no mention of buyer liability.7 Section 2(f), making buyers liable for inducing or receiving price discriminations by sellers, was the product of a belated floor amendment near the conclusion of the Senate debates.8 As finally enacted, § 2(f) provides: 11 "That it shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section." (Emphasis added.) 12 Liability under § 2(f) thus is limited to situations where the price discrimination is one "which is prohibited by this section." While the phrase "this section" refers to the entire § 2 of the Act, only subsections (a) and (b) dealing with seller liability involve discriminations in price. Under the plain meaning of § 2(f), therefore, a buyer cannot be liable if a prima facie case could not be established against a seller or if the seller has an affirmative defense. In either situation, there is no price discrimination "prohibited by this section."9 The legislative history of § 2(f) fully confirms the conclusion that buyer liability under § 2(f) is dependent on seller liability under § 2(a).10 13 The derivative nature of liability under § 2(f) was recognized by this Court in Automatic Canteen Co. of America v. FTC, 346 U.S. 61, 73 S.Ct. 1017, 97 L.Ed. 1454. In that case, the Court stated that even if the Commission has established a prima facie case of price discrimination, a buyer does not violate § 2(f) if the lower prices received are either within one of the seller's defenses or not known by the buyer not to be within one of those defenses. The Court stated: 14 "Thus, at the least, we can be confident in reading the words in § 2(f), 'a discrimination in price which is prohibited by this section,' as a reference to the substantive prohibitions against discrimination by sellers defined elsewhere in the Act. It is therefore apparent that the discriminatory price that buyers are forbidden by § 2(f) to induce cannot include price differentials that are not forbidden to sellers in other sections of the Act . . . . For we are not dealing simply with a 'discrimination in price'; the 'discrimination in price' in § 2(f) must be one 'which is prohibited by this section.' Even if any price differential were to be comprehended within the term 'discrimination in price,' § 2(f), which speaks of prohibited discriminations, cannot be read as declaring out of bounds price differentials within one or more of the 'defenses' available to sellers, such as that the price differentials reflect cost differences fluctuating market conditions, or bona fide attempts to meet competition, as those defenses are set out in the provisos of §§ 2(a) and 2(b)." 346 U.S., at 70-71, 73 S.Ct., at 1022 (footnotes omitted). 15 The Court thus explicitly recognized that a buyer cannot be held liable under § 2(f) if the lower prices received are justified by reason of one of the seller's affirmative defenses. III 16 The petitioner, relying on this plain meaning of § 2(f) and the teaching of the Automatic Canteen case, argues that it cannot be liable under § 2(f) if Borden had a valid meeting-competition defense. The respondent, on the other hand, argues that the petitioner may be liable even assuming that Borden had such a defense. The meeting-competition defense, the respondent contends, must in these circumstances be judged from the point of view of the buyer. Since A&P knew for a fact that the final Borden bid beat the Bowman bid, it was not entitled to assert the meeting-competition defense even though Borden may have honestly believed that it was simply meeting competition. Recognition of a meeting-competition defense for the buyer in this situation, the respondent argues, would be contrary to the basic purpose of the Robinson-Patman Act to curtail abuses by large buyers. A. 17 The short answer to these contentions of the respondent is that Congress did not provide in § 2(f) that a buyer can be liable even if the seller has a valid defense. The clear language of § 2(f) states that a buyer can be liable only if he receives a price discrimination "prohibited by this section." If a seller has a valid meeting-competition defense, there is simply no prohibited price discrimination. 18 A similar attempt to amend the Robinson-Patman Act judicially was rejected by this Court in FTC v. Simplicity Pattern Co., 360 U.S. 55, 79 S.Ct. 1005, 3 L.Ed.2d 1079. There the Federal Trade Commission had found that a manufacturer of dress patterns had violated § 2(e) of the Clayton Act as amended by the Robinson-Patman Act, by providing its larger customers services and facilities not offered its smaller customers.11 The manufacturer attempted to defend against this charge by asserting that there had been no injury to competition and that its discriminations in services were cost justified. Since liability under § 2(e), unlike § 2(a), does not depend upon competitive injury or the absence of a cost-justification defense, the manufacturer's primary argument was that "it would be 'bad law and bad economics' to make discriminations unlawful even where they may be accounted for by cost differentials or where there is no competitive injury." 360 U.S., at 67, 79 S.Ct., at 1013 (footnote omitted). The Court rejected this argument. Recognizing that "this Court is not in a position to review the economic wisdom of Congress," the Court stated that "[w]e cannot supply what Congress has studiously omitted." Ibid. (footnote omitted). The respondent's attempt in the present case to rewrite § 2(f) to hold a buyer liable even though there is no discrimination in price "prohibited by this section" must be rejected for the same reason.12 B 19 In the Automatic Canteen case, the Court warned against interpretations of the Robinson-Patman Act which "extend beyond the prohibitions of the Act and, in so doing, help give rise to a price uniformity and rigidity in open conflict with the purposes of other antitrust legislation." 346 U.S., at 63, 73 S.Ct., at 1019. Imposition of § 2(f) liability on the petitioner in this case would lead to just such price uniformity and rigidity.13 20 In a competitive market, uncertainty among sellers will cause them to compete for business by offering buyers lower prices. Because of the evils of collusive action, the Court has held that the exchange of price information by competitors violates the Sherman Act. United States v. Container Corp., 393 U.S. 333, 89 S.Ct. 510, 21 L.Ed.2d 526. Under the view advanced by the respondent, however, a buyer, to avoid liability, must either refuse a seller's bid or at least inform him that his bid has beaten competition. Such a duty of affirmative disclosure would almost inevitably frustrate competitive bidding and, by reducing uncertainty, lead to price matching and anticompetitive cooperation among sellers.14 21 Ironically, the Commission itself, in dismissing the charge under § 5 of the Federal Trade Commission Act in this case, recognized the dangers inherent in a duty of affirmative disclosure: 22 "The imposition of a duty of affirmative disclosure, applicable to a buyer whenever a seller states that his offer is intended to meet competition, is contrary to normal business practice and, we think, contrary to the public interest. 23 * * * * * 24 "We fear a scenario where the seller automatically attaches a meeting competition caveat to every bid. The buyer would then state whether such bid meets, beats, or loses to another bid. The seller would then submit a second, a third, and perhaps a fourth bid until finally he is able to ascertain his competitor's bid." 87 F.T.C. 1047, 1050-1051. 25 The effect of the finding that the same conduct of the petitioner violated § 2(f), however, is to impose the same duty of affirmative disclosure which the Commission condemned as anticompetitive, "contrary to the public interest," and "contrary to normal business practice," in dismissing the charge under § 5 of the Federal Trade Commission Act. Neither the Commission nor the Court of Appeals offered any explanation for this apparent anomaly. 26 As in the Automatic Canteen case, we decline to adopt a construction of § 2(f) that is contrary to its plain meaning and would lead to anticompetitive results. Accordingly, we hold that a buyer who has done no more than accept the lower of two prices competitively offered does not violate § 2(f) provided the seller has a meeting-competition defense.15 IV 27 Because both the Commission and the Court of Appeals proceeded on the assumption that a buyer who accepts the lower of two competitive bids can be liable under § 2(f) even if the seller has a meeting-competition defense, there was not a specific finding that Borden did in fact have such a defense. But it quite clearly did. A. 28 The test for determining when a seller has a valid meeting-competition defense is whether a seller can "show the existence of facts which would lead a reasonable and prudent person to believe that the granting of a lower price would in fact meet the equally low price of a competitor." FTC v. A. E. Staley Mfg. Co., 324 U.S. 746, 759-760, 65 S.Ct. 971, 977, 89 L.Ed. 1338. "A good-faith belief, rather than absolute certainty, that a price concession is being offered to meet an equally low price offered by a competitor is sufficient to satisfy the § 2(b) defense." United States v. United States Gypsum Co., 438 U.S. 422, 453, 98 S.Ct. 2864, 2881, 57 L.Ed.2d 854.16 Since good faith, rather than absolute certainty, is the touchstone of the meeting-competition defense, a seller can assert the defense even if it has unknowingly made a bid that in fact not only met but beat his competition. Id., at 454, 98 S.Ct., at 2882. B 29 Under the circumstances of this case, Borden did act reasonably and in good faith when it made its second bid. The petitioner, despite its longstanding relationship with Borden, was dissatisfied with Borden's first bid and solicited offers from other dairies. The subsequent events are aptly described in the opinion of the Commission: 30 "Thereafter, on August 31, 1965, A&P received an offer 31 from Bowman Dairy that was lower than Borden's August 13 offer. On or about September 1, 1965, Elmer Schmidt, A&P's Chicago unit buyer, telephoned Gordon Tarr, Borden's Chicago chain store sales manager, and stated, 'I have a bid in my pocket. You [Borden] people are so far out of line it is not even funny. You are not even in the ball park.' Although Tarr asked Schmidt for some details, Schmidt said that he could not tell Tarr anything except that a $50,000 improvement in Borden's bid 'would not be a drop in the bucket.' Contrary to its usual practice, A&P then offered Borden the opportunityto submit another bid." 87 F.T.C., at 1048. (Footnotes and record citations omitted.) 32 Thus, Borden was informed by the petitioner that it was in danger of losing its A&P business in the Chicago area unless it came up with a better offer. It was told that its first offer was "not even in the ball park" and that a $50,000 improvement "would not be a drop in the bucket." In light of Borden's established business relationship with the petitioner, Borden could justifiably conclude that A&P's statements were reliable and that it was necessary to make another bid offering substantial concessions to avoid losing its account with the petitioner. 33 Borden was unable to ascertain the details of the Bowman bid. It requested more information about the bid from the petitioner, but this request was refused. It could not then attempt to verify the existence and terms of the competing offer from Bowman without risking Sherman Act liability. United States v. United States Gypsum Co., supra. Faced with a substantial loss of business and unable to find out the precise details of the competing bid, Borden made another offer stating that it was doing so in order to meet competition. Under these circumstances, the conclusion is virtually inescapable that in making that offer Borden acted in a reasonable and good-faith effort to meet its competition, and therefore was entitled to a meeting-competition defense.17 34 Since Borden had a meeting-competition defense and thus could not be liable under § 2(b), the petitioner who did no more than accept that offer cannot be liable under § 2(f).18 35 Accordingly, the judgment is reversed. 36 It is so ordered. 37 Mr. Justice STEVENS took no part in the consideration or decision of this case. 38 Mr. Justice WHITE, concurring in part and dissenting in part. 39 I concur in Parts I, II, and III of the Court's opinion, but dissent from Part IV. Because it was thought the issue was irrelevant where the buyer knows that the price offered is lower than necessary to meet competition, neither the Commission nor the Court of Appeals decided whether Borden itself would have had a valid meeting-competition defense. The Court should not decide this question here, but should remand to the Commission, whose job it is initially to consider such matters. 40 For the reason stated by the Commission and the Court of Appeals, I am also convinced that the United States made a sufficient, unrebutted showing that Borden would not have a cost-justification defense to a Robinson-Patman Act charge. 41 Mr. Justice MARSHALL, dissenting in part. 42 I agree with the Court that the Federal Trade Commission and the Court of Appeals applied the wrong legal standard in assessing A&P's liability under the Robinson-Patman Act. However, I cannot join the Court's interpretation of § 2(f) as precluding buyer liability under this Act unless the seller could also be found liable for price discrimination. Neither the language nor the sparse legislative history of § 2(f) justifies this enervating standard for the determination of buyer liability. To the contrary, the Court's construction disregards the congressional purpose to curtail the coercive practices of chainstores and other large buyers. Having formulated a new legal standard, the Court then applies it here in the first instance rather than remanding the case to the Commission. Given the numerous ambiguities in the record, I believe the Court thereby improperly arrogates to itself the role of the trier of fact. 43 * Section 2(f) provides that "[i]t shall be unlawful for any person . . . knowingly to induce or receive a discrimination in price which is prohibited by this section." (Emphasis added.) The Court interprets the italicized language as "plainly meaning" that a buyer can be found liable for knowingly inducing price discrimination only if his seller is first proved liable under §§ 2(a) and 2(b). Ante, at 76, 81. Under this construction, proceedings involving only the Commission and a buyer will turn upon proof of a seller's liability, and whenever a seller could successfully claim the meeting-competition defense, the buyer must be exonerated. 44 In my view, the language of § 2(f) does not compel this circuitous method of establishing buyer liability. Sections 2(a) and 2(b) of the Act define the elements of price discrimination and the affirmative defenses available to sellers. When Congress extended liability to buyers who encourage price discrimination, a ready means of defining the prohibition was to rely on the elements and defenses already delineated in §§ 2(a) and 2(b). Thus the phrase "which is prohibited by this section" in § 2(f) incorporates these elements and defenses by reference, making them applicable to buyers. So construed, § 2(f) simply means that the same elements of a prima facie case must be established and the same basic affirmative defenses available, whether buyer or seller liability is in issue. The section does not require that another party actually satisfy all of the conditions of §§ 2(a) and 2(b) before buyer liability can even be considered. Determining buyer and seller liability independently, I believe, places less strain on the "plain meaning" of the language of § 2(f) than does the absolutely derivative standard the majority announces today. 45 In construing § 2(f), the Court relies on Congress' delay in adding the section to the final bill and on a remark by Representative Utterback during the legislative debates. Ante, at 75-77, and n. 10. The delay provides little logical justification for the Court's interpretation; rather, it more likely reflects Congress' late realization that halting the abusive practices of buyers1 could not be accomplished solely through imposition of liability on sellers. Representative Utterback's statement, 80 Cong.Rec. 9419 (1936), amounts to a slight paraphrase of § 2(f) and in no way supports the Court's derivative standard. 46 I agree with the Court's suggestion, ante, at 80, that we must resolve the dilemma confronting a buyer who properly invites a seller to meet a competitor's price and then fortuitously obtains a lower bid. Congress could not have expected the buyer to choose between asking the seller to increase the bid to a specific price or accepting the lower bid and facing liability under § 2(f). Rather, it must have intended some accommodation for buyers who act in good faith yet receive bids that beat competition. This does not mean, however, that a buyer should be liable under § 2(f) only if his seller also would be liable. That solution to the buyer's dilemma would enable him to manufacture his own defense by misrepresenting to a seller the response needed to meet a competitor's bid and then allowing the seller to rely in good faith on incorrect information. The Court purports to reserve this "lying buyer" issue, ante, at 81-82, n. 15, but the derivative standard it adopts today belies the reservation. If "prohibited by this section" means that a buyer's liability depends on that of the seller, then absent seller liability, the buyer's conduct and bad faith are necessarily irrelevant. 47 I would hold that under § 2(f), the Robinson-Patman Act defenses must be available to buyers on the same basic terms as they are to sellers. To be sure, some differences in the nature of the defenses would obtain because of the different bargaining positions of sellers and buyers. With respect to the meeting-competition defense at issue here, a seller can justify a price discrimination by showing that his lower price was offered in "good faith" to meet that of a competitor. Ante, at 82-83; United States v. United States Gypsum Co., 438 U.S. 422, 450-455, 98 S.Ct. 2864, 2880-2882, 57 L.Ed.2d 854 (1978). In my view, a buyer should be able to claim that defense—independently of the seller—if he acted in good faith to induce the seller to meet a competitor's price, regardless of whether the seller's price happens to beat the competitor's. But a buyer who induces the lower bid by misrepresentation should not escape Robinson-Patman Act liability. See Kroger Co. v. FTC, 438 F.2d 1372 (C.A.6) (Clark, J.), cert. denied, 404 U.S. 871, 92 S.Ct. 59, 30 L.Ed.2d 115 (1971). This definition of the meeting-competition defense both extricates buyers from an impossible dilemma and respects the congressional intent to prevent buyers from abusing their market power to gain competitive advantage.2 48 Automatic Canteen Co. of America v. FTC, 346 U.S. 61, 73 S.Ct. 1017, 97 L.Ed. 1454 (1953), is entirely consistent with this interpretation of § 2(f). The issue there concerned the allocation of "the burden of coming forward with evidence under § 2(f) of the Act," 346 U.S., at 65, 73 S.Ct., at 1020, not the precise contours of the elements and defenses that determine the scope of buyer liability. Automatic Canteen's general discussion of § 2(f)'s substantive requirements, quoted ante, at 77-78, merely explains that the affirmative defenses "available to sellers" must also be available to buyers. Far from pronouncing that buyer liability is derivative, Automatic Canteen began with the observation that § 2(f) is "roughly the counterpart, as to buyers, of sections of the Act dealing with discrimination by sellers." 346 U.S., at 63, 73 S.Ct., at 1019 (emphasis added).3 II 49 In my judgment, the numerous ambiguities in the record dictate that this case be remanded to the Commission. The Court, however, avoids a remand by concluding in the first instance that A&P's seller necessarily had a meeting-competition defense.4 In so doing, the Court usurps the factfinding function best performed by the Commission.5 Neither the Administrative Law Judge, the Commission, nor the Court of Appeals determined that Borden would have been entitled to claim the meeting-competition defense. Indeed, the Administrative Law Judge suggested the opposite, 87 F.T.C. 962, 1021 (1976), and the Commission stated: 50 "We believe that it is very probable that Borden did not have such a defense. To have a meeting competition defense, the record must demonstrate the existence of facts which would lead a reasonable and prudent person to conclude that the lower price would, in fact, meet the competitor's price. As noted, Borden had serious doubts concerning whether the competing bid was legal. Specifically, it believed that the other bid only considered direct costs. It should have asked A&P for more information about the competing bid. By not making the request, it was not acting prudently. As the record clearly indicates, A&P had knowledge of Borden's belief that other dairies might submit bids that did not include all costs." 87 F.T.C. 1047, 1057 n. 19 (1976) (citations omitted; emphasis in original). 51 Furthermore, if the Court truly intends to avoid deciding the "lying buyer" issue, then it should remand the case for determination of whether the exception applies here. Testimony before the Administrative Law Judge directly raised the possibility that A&P misled Borden to believe a still lower price was necessary than Borden had offered when it first responded to the Bowman bid. App. 117a-118a, 123a-124a, 141a-142a.6 Both the Administrative Law Judge and the Commission credited that testimony, see 87 F.T.C., at 979, 1021-1022; 87 F.T.C., at 1049 n. 3., but since evidence of misrepresentation was not material under the standard they applied, there were no clear findings of fact on the point. Under these circumstances, this Court should not attempt to elide such testimony by the unsubstantiated conclusion that Borden's final bid was unaffected by any misrepresentation. Ante, at 81-82, n. 15; see n. 6,supra. 52 Accordingly, I dissent from the Court's adoption of a derivative standard for determining buyer liability and its resolution of disputed factual issues without a remand. 1 Title 15 U.S.C. § 13(f) provides: "It shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section." Title 15 U.S.C. §§ 13(a) and (b) provide in pertinent part: "(a) . . . It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered . . .. "(b) . . . Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor." 2 The Bowman bid would have produced estimated annual savings of approximately $737,000 for A&P as compared with the first Borden bid, which would have produced estimated annual savings of $410,000. 3 Section 5(a) of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U.S.C. § 45(a), provides in relevant part: "(1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful." 4 The Commission also found that the interstate commerce requirement of § 2(f) was satisfied. 5 Under §§ 2(a) and (b) of the Act, a seller who can establish either that a price differential was cost justified or offered in good faith to meet competition has a complete defense to a charge of price discrimination under the Act. Standard Oil Co. v. FTC, 340 U.S. 231, 71 S.Ct. 240, 95 L.Ed. 239. See n. 1, supra. With respect to the meeting-competition defense, the Commission stated that even though Borden as the seller might have had a meeting-competition defense, A&P as the buyer did not have such a defense because it knew that the bid offered was, in fact, better than the Bowman bid. With respect to the cost-justification defense, the Commission found that Commission counsel had met the initial burden of going forward as required by this Court's decision in Automatic Canteen Co. of America v. FTC, 346 U.S. 61, 73 S.Ct. 1017, 97 L.Ed. 1454, and that A&P had not then satisfied its burden of showing that the prices were cost justified, or that it did not know that they were not. The Commission upheld the Administrative Law Judge's dismissal of Count III of the complaint. 6 The Court of Appeals, like the Commission, relied on Kroger Co. v. FTC, 438 F.2d 1372 (C.A.6), for the proposition that a buyer can be liable under § 2(f) of the Act even if the seller has a meeting-competition defense. The Kroger case involved a buyer who had made deliberate misrepresentations to a seller in order to induce price concessions. While the Court of Appeals in this case did not find that A&P had made any affirmative misrepresentations, it viewed the distinction between a "lying buyer" and a buyer who knowingly accepts the lower of two bids as without legal significance. See n. 15, infra. 7 H.R. 8442, 74th Cong., 1st Sess. (1935); S. 3154, 74th Cong., 1st Sess. (1935). 8 F. Rowe, Price Discrimination Under the Robinson-Patman Act 423 (1962). Section 2(f) has been described by commentators as an "afterthought." Id., at 421; J. McCord, Commentaries on the Robinson-Patman Act 96 (1969). 9 Commentators have recognized that a finding of buyer liability under § 2(f) is dependent on a finding of seller liability under § 2(a). McCord, supra, at 96 ("[Section] 2(f) cannot be enforced if a prima facie case could not be established against the seller on the basis of the transaction in question under Section 2(a) or if he could sustain an affirmative defense thereto"); Rowe, supra, at 421 ("the legal status of the buyer is derivative from the seller's pricing legality under the Act"); H. Shniderman, Price Discrimination in Perspective 136 (1977) (a buyer can be liable under § 2(f) only if the price received "cannot be excused by any defenses provided to the seller"). 10 In presenting the Conference Report to the House, Representative Utterback summarized the meaning of § 2(f) by stating: "This paragraph makes the buyer liable for knowingly inducing or receiving any discrimination in price which is unlawful under the first paragraph [§ 2(a)] of the amendment." 80 Cong.Rec. 9419 (1936). 11 Section 2(e) provides: "It shall be unlawful for any person to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale, with or without processing, by contracting to furnish or furnishing, or by contributing to the furnishing of, any services or facilities connected with the processing, handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms." 15 U.S.C. § 13(e). 12 Contrary to the respondent's suggestion, this interpretation of § 2(f) is in no way inconsistent with congressional intent. "[T]he buyer whom Congress in the main sought to reach was the one who, knowing full well that there was little likelihood of a defense for the seller, nevertheless proceeded to exert pressure for lower prices." Automatic Canteen Co. of America v. FTC, 346 U.S., at 79, 73 S.Ct., at 1027. Here, by contrast, we conclude that a buyer is not liable if the seller does have a defense under § 2(b). 13 More than once the Court has stated that the Robinson-Patman Act should be construed consistently with broader policies of the antitrust laws. United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854; Automatic Canteen Co. of America v. FTC, supra, 346 U.S., at 74, 73 S.Ct., at 1024. 14 A duty of affirmative disclosure might also be difficult to enforce. In cases where a seller offers differing quantities or a different quality product, or offers to serve the buyer in a different manner, it might be difficult for the buyer to determine when disclosure is required. 15 In Kroger Co. v. FTC, 438 F.2d 1372 (1971), the Court of Appeals for the Sixth Circuit held that a buyer who induced price concessions by a seller by making deliberate misrepresentations could be liable under § 2(f) even if the seller has a meeting-competition defense. This case does not involve a "lying buyer" situation. The complaint issued by the FTC alleged that "A&P accepted the said offer of Borden with knowledge that Borden had granted a substantially lower price than that offered by the only other competitive bidder and without notifying Borden of this fact." The complaint did not allege that Borden's second bid was induced by any misrepresentation. The Court of Appeals recognized that the Kroger case involved a "lying buyer," but stated that there was no meaningful distinction between the situation where "the buyer lies or merely keeps quiet about the nature of the competing bid." 557 F.2d 971, 983. Despite this background, the respondent argues that A&P did engage in misrepresentations and therefore can be found liable as a "lying buyer" under the rationale of the Kroger case. The misrepresentation relied upon by the respondent is a statement allegedly made by a representative of A&P to Borden after Borden made its second bid which would have resulted in annual savings to A&P of $820,000. The A&P representative allegedly told Borden to "sharpen your pencil a little bit because you are not quite there." But the Commission itself referred to this comment only to note its irrelevance, and neither the Commission nor the Court of Appeals mentioned it in considering the § 2(f) charge against A&P. This is quite understandable, since the comment was allegedly made after Borden make its second bid and therefore cannot be said to have induced the bid as in the Kroger case. Because A&P was not a "lying buyer," we need not decide whether such a buyer could be liable under § 2(f) even if the seller has a meeting-competition defense. 16 Recognition of the right of a seller to meet a lower competitive price in good faith may be the primary means of reconciling the Robinson-Patman Act with the more general purposes of the antitrust laws of encouraging competition between sellers. As the Court stated in Standard Oil Co. v. FTC, 340 U.S., at 249, 71 S.Ct., at 249: "We need not now reconcile, in its entirety, the economic theory which underlies the Robinson-Patman Act with that of the Sherman and Clayton Acts. It is enough to say that Congress did not seek by the Robinson-Patman Act either to abolish competition or so radically to curtail it that a seller would have no substantial right of self-defense against a price raid by a competitor." 17 The facts of this case are thus readily distinguishable from Corn Products v. FTC, 324 U.S. 726, 65 S.Ct. 961, 89 L.Ed. 1320, and FTC v. A. E. Staley Mfg. Co., 324 U.S. 746, 65 S.Ct. 971, 89 L.Ed. 1338, in both of which the Court held that a seller had failed to establish a meeting-competition defense. In the Corn Products case, the only evidence to rebut the prima facie case of price discrimination was testimony by witnesses who had no personal knowledge of the transactions in question. Similarly, in the Staley Mfg. Co. case, unsupported testimony from informants of uncertain character and reliability was insufficient to establish the defense. In the present case, by contrast, the source of the information was a person whose reliability was not questioned and who had personal knowledge of the competing bid. Moreover, Borden attempted to investigate by asking A&P for more information about the competing bid. Finally, Borden was faced with a credible threat of a termination of purchases by A&P if it did not make a second offer. All of these factors serve to show that Borden did have a valid meeting-competition defense. See United States v. United States Gypsum Co., 438 U.S., at 454, 98 S.Ct., at 2882. 18 Because we hold that the petitioner is not liable under § 2(f), we do not reach the question whether Borden might also have had a cost-justification defense under § 2(a). 1 See S.Rep.No.1502, 74th Cong., 2d Sess. (1936); H.R.Rep.No.2287, 74th Cong., 2d Sess., 3-7, 17 (1936); H.R.Conf.Rep.No.2951, 74th Cong., 2d Sess. (1936); FTC, Final Report on the Chain-Store Investigation, S.Doc.No.4, 74th Cong., 1st Sess. (1935); FTC v. Henry Broch & Co., 363 U.S. 166, 168-169, 80 S.Ct. 1158, 1160-1161, 4 L.Ed.2d 1124 (1960); W. Patman, Complete Guide to the Robinson-Patman Act 7-10 (1963); F. Rowe, Price Discrimination Under the Robinson-Patman Act 8-14 (1962). See generally Hearings on Price Discrimination (S. 4171) before a Subcommittee of the Senate Committee on the Judiciary, 74th Cong., 2d Sess. (1936); Hearings on H.R. 8442, H.R. 4995, and H.R. 5062 before the House Committee on the Judiciary, 74th Cong., 1st Sess. (1935). 2 See S.Rep.No.1502, 74th Cong., 2d Sess., 3-4, 7 (1936); H.R.Rep.No.2287, 74th Cong., 2d Sess., 3-7, 14-17 (1936); Patman, supra, at 7-10, 148-151; Rowe, supra, at 8-23. The Court recently noted in United States v. United States Gypsum Co., 438 U.S. 422, 455 n. 30, 98 S.Ct. 2864, 2882, 57 L.Ed.2d 854 (1978), that "[i]t may also turn out that sustained enforcement of § 2(f) . . . will serve to bolster the credibility of buyers' representations and render reliance thereon by sellers a more reasonable and secure predicate for a finding of good faith under § 2(b)." (Citation omitted.) But if neither a buyer nor a seller can be liable when the seller relies in good faith on the buyer's misrepresentations, then enforcement of § 2(f) will not "bolster the credibility" of buyers. Thus, the derivative standard of liability adopted by the Court today is inconsistent with the premise underlying the Court's suggestion in United States Gypsum, see Note, The Supreme Court, 1977 Term, 92 Harv.L.Rev. 57, 288, 291-294 (1978), and it eliminates one means of reassuring sellers that they may rely on buyer representations. 3 Given this preface to Automatic Canteen, language in that opinion provides little support for the Court's adoption today of a derivative standard with respect to the buyer's meeting-competition defense. Moreover, to the extent the majority believes its resort to literal construction of § 2(f) forecloses further inquiry, it ignores the broader teaching of Automatic Canteen. That case adopted a common-sense approach for interpreting the often ambiguous Robinson-Patman Act, tempering a "merely literal reading of the language" with considerations of "fairness and convenience" when necessary to achieve Congress' purpose. 346 U.S., at 79, and n. 23, 73 S.Ct., at 1027. On that basis, Automatic Canteen allocated to the Commission the burden of production regarding a buyer's cost-justification defense, even though the Commission does not bear that burden in a proceeding against a seller. Id., at 75-76, 73 S.Ct., at 1025-1026; FTC v. Morton Salt Co., 334 U.S. 37, 44-45, 68 S.Ct. 822, 827-828, 92 L.Ed. 1196 (1948). Indeed, the Court's interpretation of § 2(f) today, which places buyers in the litigating position of their sellers, may also be incompatible with Automatic Canteen's specific holding on the burden of production. 4 Because the Court reverses the judgment without remanding for further consideration and does not expressly reach the merits of the cost-justification issue raised by A&P, ante, at 85 n. 18, I need not address that issue either. 5 Considering the recent admonition in United States Gypsum, supra, at 456, 98 S.Ct., at 2883 n. 31, that "[t]he case-by-case interpretation and elaboration of the § 2(b) defense is properly left to the other federal courts and the FTC in the context of concrete fact situations," the Court's action is particularly inappropriate. While I question the Court's decision to undertake resolution of this factual question, without even determining which party bore the burden of persuasion, I do not understand Part IV of its opinion as purporting to modify in any sense what was said last Term in United States Gypsum about the scope of the meeting-competition defense for sellers. 6 The Court's opinion creates the impression that Borden submitted only two proposals, ante, at 81-82 n. 15, 83-84. In fact, A&P induced Borden to make a third proposal, even though the second was already more favorable than Bowman's. When Borden initially responded to Bowman's bid, the A&P representative rejected Borden's offer on the ground that it included milk sold in glass gallon containers, whereas other bidders supposedly had not included that item. Actually, Bowman's bid had included glass gallons and A&P had subsequently decided against using glass containers. 87 F.T.C. 962, 979 (1976); App. 73a-74a, 116a-118a, 257a-260a, 774a-775a. The effect of forcing Borden to delete milk sold in glass gallons from the proposal without raising the overall bid, was to increase the savings to A&P on other products still covered because part of the promised savings had been derived from the sale of the cheaper glass gallons. See 87 F.T.C., at 979-980. In addition, while Borden was preparing a third proposal to reflect the deletion, A&P suggested that Borden make further price reductions, saying " 'sharpen your pencil a little bit because you are not quite there.' " App. 118a. As a result, Borden reduced its prices still further to yield additional savings of approximately $5,000 to $8,000. The bid finally accepted by A&P incorporated these price reductions as well as those attributable to the deletion of glass gallons. See id., at 117a-118a, 123a-124a, 141a-142a.

78

440 U.S. 173 99 S.Ct. 983 59 L.Ed.2d 230 ILLINOIS STATE BOARD OF ELECTIONS, Appellant,v.SOCIALIST WORKERS PARTY et al. No. 77-1248. Argued Nov. 6, 1978. Decided Feb. 22, 1979. Syllabus Under the Illinois Election Code, new political parties and independent candidates must obtain the signatures of 25,000 qualified voters in order to appear on the ballot in statewide elections. However, the minimum number of signatures required in elections for offices of political subdivisions of the State is 5% of the number of persons who voted at the previous election for such offices. Application of these provisions to a special mayoral election in Chicago produced the result that a new party or independent candidate needed substantially more signatures than would be needed for ballot access in a statewide election. In actions by appellees, an independent candidate, two new political parties, and certain voters challenging this discrepancy on equal protection grounds, the District Court enjoined enforcement of the 5% provision insofar as it mandated more than 25,000 signatures, and the Court of Appeals affirmed. Held: 1. This Court's summary affirmance in Jackson v. Ogilvie, 403 U.S. 925, 91 S.Ct. 2247, 29 L.Ed.2d 705, of the District Court's decision in 325 F.Supp. 864, upholding Illinois' 5% signature requirement is not dispositive of the equal protection question presented here. The precedential effect of a summary affirmance can extend no further than "the precise issues presented and necessarily decided by those actions," Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199. In contrast to this case, the challenge in Jackson involved only the discrepancy between the 5% requirement and the less stringent requirements for candidates of established political parties. The issue presented here was not referred to by the Jackson District Court, and was mentioned only in passing in the jurisdictional statement subsequently filed with this Court. Thus, the issue was not adequately presented to, or decided by, this Court in its summary affirmance. Pp. 180-183. 2. The Illinois Election Code, insofar as it requires independent candidates and new political parties to obtain more than 25,000 signatures in Chicago violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 183-187. (a) When such fundamental rights as the freedom to associate as a political party and the right to cast votes effectively are at stake, a State must establish that its regulation of ballot access is necessary to serve a compelling interest. Pp. 184-185. (b) "[E]ven when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty," Kusper v. Pontikes, 414 U.S. 51, 59, 94 S.Ct. 303, 308, 38 L.Ed.2d 260, and States must adopt the least drastic means to achieve their ends. This requirement is particularly important where restrictions on access to the ballot are involved. Since the State has determined that a smaller number of signatures in a larger political unit adequately serves its interest in regulating the number of candidates on the ballot, the signature requirements for independent candidates and political parties seeking offices in Chicago are clearly not the least restrictive means of achieving the same objective. Appellant State Board of Elections has advanced no reason, much less a compelling one, why the State needs a more stringent requirement for elections in Chicago than for statewide elections. Pp. 185-186. (c) Prior invalidation of Illinois' rules regarding geographic distribution of signatures tied the requirements for both city and state candidates solely to a population standard. However, while this may explain the anomaly at issue here, it does not justify it. Historical accident, without more, cannot constitute a compelling state interest. Pp. 186-187. 3. The Court of Appeals properly dismissed as moot appellant's claim that the Chicago Board of Election Commissioners lacked authority to conclude a settlement agreement with respect to the unresolved issue whether the 5% signature requirement coupled with the filing deadline impermissibly burdened First and Fourteenth Amendment rights. Appellant has presented no evidence creating a reasonable expectation that the Chicago Board will repeat its purportedly unauthorized actions in subsequent elections. Pp. 187-188. 566 F.2d 586, affirmed. Michael L. Levinson, Springfield, Ill., for appellant. Jeffrey D. Colman, Chicago, Ill., and Ronald Reosti, Detroit, Mich., for appellees. Mr. Justice MARSHALL delivered the opinion of the Court. 1 Under the Illinois Election Code, new political parties and independent candidates must obtain the signatures of 25,000 qualified voters in order to appear on the ballot in statewide elections.1 However, a different standard applies in elections for offices of political subdivisions of the State. The minimum number of signatures required for those elections is 5% of the number of persons who voted at the previous election for offices of the particular subdivision.2 In the city of Chicago, application of this standard has produced the incongruous result that a new party or an independent candidate needs substantially more signatures to gain access to the ballot than a similarly situated party or candidate for statewide office.3 The question before us is whether this discrepancy violates the Equal Protection Clause of the Fourteenth Amendment. 2 * In January 1977, the Chicago City Council ordered a special mayoral election to be held on June 7, 1977, to fill the vacancy created by the death of Mayor Richard J. Daley. Pursuant to that order, the Chicago Board of Election Commissioners (Chicago Board) issued an election calendar that listed the filing dates and signature requirements applicable to independent candidates and new political parties. Independent candidates had to obtain 35,947 valid signatures by February 19, and new political parties were required to file petitions with 63,373 valid signatures by April 4.4 Subsequently, the Chicago Board and the State Board of Elections (State Board) agreed for purposes of the special election to bring into conformity the requirements for independent candidates and new parties. The filing deadline for independents was extended to April 4, and the signature requirement for new parties was reduced to 35,947. 3 Because they had received less than 5% of the votes cast in the last mayoral election, the Socialist Workers Party and United States Labor Party were new political parties as defined in the Illinois statute. See n. 1, supra. Along with Gerald Rose, a candidate unaffiliated with any party, they were therefore subject to the signature requirements and filing deadlines specified in the election calendar. On January 24, 1977, the Socialist Workers Party and two voters who supported its candidate for Mayor brought this action against the Chicago Board and the State Board to enjoin enforcement of the signature requirements and filing deadlines for new parties.5 One week later, Gerald Rose, the United States Labor Party, and four voters sued the Chicago Board, challenging the restrictions on new parties and independent candidates. The State Board intervened as a defendant pursuant to 28 U.S.C. § 2403, and the District Court consolidated the two cases for trial. 4 Plaintiff-appellees contended at trial that the discrepancy between the requirements for state and city elections violated the Equal Protection Clause. They argued further that the restrictions on independent candidates and new parties were unconstitutionally burdensome in the context of a special election because of the short time for collection of signatures between notice of the election and the filing deadline. The Chicago Board's primary response was that the decision in Jackson v. Ogilvie, 325 F.Supp. 864 (N.D.Ill.), summarily aff'd 403 U.S. 925, 91 S.Ct. 2247, 29 L.Ed.2d 705 (1971), upholding Illinois' 5% signature requirement, foreclosed the constitutional challenge in this case.6 5 In an opinion issued on March 14, 1977, the District Court determined that Jackson addressed neither the circumstances of a special election nor the disparity between state and city signature requirements at issue here. Socialist Workers Party v. Chicago Bd. of Election Comm'rs, 433 F.Supp. 11, 16-17, 19. On the merits of appellees' equal protection challenge, the court found 6 "[no] rational reason why a petition with identical signatures can satisfy the legitimate state interests for restricting ballot access in state elections, and yet fail to do the same in a lesser unit. Lendall v. Jernigan, 424 F.Supp. 951 (E.D.Ark.1977). Any greater requirement than 25,000 signatures cannot be said to be the least drastic means of accomplishing the state's goals, and must be found to unduly impinge [on] the constitutional rights of independents, new political parties, and their adherents." Id., at 20 (footnote omitted). 7 Accordingly, the District Court permanently enjoined the enforcement of the 5% provision insofar as it mandated more than 25,000 signatures, the number required for statewide elections. The court also declined to dismiss appellees' claim that the April 4 filing deadline coupled with the signature requirement impermissibly burdened First and Fourteenth Amendment rights, but it postponed a decision on this issue pending submission of additional evidence to justify the selection of that date. 8 On March 17, 1977, the Chicago Board and the appellees concluded a settlement agreement with respect to the unresolved issues. The agreement was incorporated into an order entered the same day which provided that "solely as applied to the Special Mayoral Election to be held in Chicago on June 7, 1977," the signature requirement would be reduced to 20,000 and the filing deadline extended to April 18. App. 74. The District Court denied the State Board's subsequent motion to vacate both orders. 9 The State Board, but not the Chicago Board, appealed from both the March 14 order and the March 17 order. In a per curiam decision rendered six months after the election, the Court of Appeals for the Seventh Circuit adopted the opinion of the District Court. 566 F.2d 586, 587 (1977). Also, with respect to the March 17 order, the Court of Appeals dismissed as moot the State Board's contention that the Chicago Board lacked authority to conclude a settlement agreement without prior state approval. In so ruling, the court noted that the settlement order applied only to the June 7 election, which had long passed, and held that the question of the Chicago Board's authority for its actions was not "capable of repetition, yet evading review," Id., at 588, quoting DeFunis v. Odegaard, 416 U.S. 312, 318-319, 94 S.Ct. 1704, 1706-1707, 40 L.Ed.2d 164 (1974). 10 We noted probable jurisdiction, 435 U.S. 994, 98 S.Ct. 1644, 56 L.Ed.2d 82 (1978), and we now affirm. II 11 Appellant argues here, as it did below, that this Court's summary affirmance of Jackson v. Ogilvie, supra, is dispositive of the equal protection challenge here. In analyzing this contention, we note at the outset that summary affirmances have considerably less precedential value than an opinion on the merits. See Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 1359, 39 L.Ed.2d 662 (1974). As Mr. Chief Justice BURGER observed in Fusari v. Steinberg, 419 U.S. 379, 392, 95 S.Ct. 533, 541, 42 L.Ed.2d 521 (1975) (concurring opinion), "upon fuller consideration of an issue under plenary review, the Court has not hesitated to discard a rule which a line of summary affirmances may appear to have established." See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14, 96 S.Ct. 2882, 2891, 49 L.Ed.2d 752 (1976). 12 Moreover, we agree with the District Court's conclusion that Jackson does not govern the issues currently before us. In that case, the Reverend Jesse Jackson, an independent candidate for Mayor of Chicago, attacked the 5% signature requirement for independent candidates as an impermissible burden on the exercise of First Amendment rights. He contended as well that the discrepancy between the 5% rule and the less stringent requirements for candidates of established political parties violated the Equal Protection Clause. A three-judge District Court rejected both claims, finding the 5% requirement reasonable and the burdens imposed on independent and established party candidates roughly equivalent. Appellees mount a different challenge. They do not attack the lines drawn between independent and established party candidates. Rather, their equal protection claim rests on the discrimination between those independent candidates and new parties seeking access to the ballot in statewide elections and those similarly situated candidates and parties seeking access in city elections. 13 Appellant urges, however, that even though the District Court in Jackson did not explicitly mention the equal protection issue presented here, the issue was raised in a memorandum supporting Jackson filed with the District Court by the State. In the course of arguing that the election law discriminated against independent candidates, the memorandum stated: 14 "It must also be remembered that it is even more difficult for an independent candidate to obtain signatures than it would be for an independent party. Yet a whole new State political party needs only 25,000 signatures throughout the entire State for state officers, (Section 10-2), while a single independent candidate for only the office of Mayor of Chicago, needs almost 60,000 signatures. This also is an invidious discrimination against one seeking the office of Mayor of Chicago." Memorandum of Law, App. to Juris. Statement in Jackson v. Ogilvie,, O.T.1970, No. 70-1341, p. B-23.7 15 In view of the District Court's ultimate decision, appellant contends, this issue was necessarily resolved against Jackson, and therefore was resolved by this Court as well in its summary affirmance. 16 The District Court in Jackson, however, framed the equal protection issue before it as "whether [the 5% signature] requirement operates to discriminate against the plaintiff by depriving him of a right granted to candidates of established political parties." 325 F.Supp., at 868. The jurisdictional statement posed the question in similar terms. Juris. Statement in Jackson v. Ogilvie, O.T.1970, No. 70-1341, pp. 14-15. Although the jurisdictional statement alluded to the State's memorandum, id., at 15, and incorporated it as a separate appendix, id., at B-21—B-24, at no point did it directly address the question now before us. 17 This omission disposes of appellant's argument. As we stated in Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 140 (1977), the precedential effect of a summary affirmance can extend no farther than "the precise issues presented and necessarily decided by those actions." A summary disposition affirms only the judgment of the court below, ibid., quoting Fusari v. Steinberg, supra, 419 U.S., at 391-392, 95 S.Ct., at 540-541 (BURGER, C. J., concurring), and no more may be read into our action than was essential to sustain that judgment. See Usery v. Turner Elkhorn Mining Co., supra, 424 U.S. at 14, 96 S.Ct. at 2891; McCarthy v. Philadelphia Civil Service Comm'n, 424 U.S. 645, 646, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976) (per curiam ). Questions which "merely lurk in the record," Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411 (1925), are not resolved, and no resolution of them may be inferred. Assuming that the State's memorandum in Jackson can be read as advancing the issue presented here, see n. 7, supra, the issue was by no means adequately presented to and necessarily decided by this Court. Jackson therefore has no effect on the constitutional claim advanced by appellees. III 18 In determining whether the Illinois signature requirements for new parties and independent candidates as applied in the city of Chicago violate the Equal Protection Clause, we must examine the character of the classification in question, the importance of the individual interests at stake, and the state interests asserted in support of the classification. See Memorial Hospital v. Maricopa County, 415 U.S. 250, 253-254, 94 S.Ct. 1076, 1079-1080, 39 L.Ed.2d 306 (1974); Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972); Kramer v. Union School Dist., 395 U.S. 621, 626, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969); Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). 19 The provisions of the Illinois Election Code at issue incorporate a geographic classification. For purposes of setting the minimum-signature requirements, the Code distinguishes state candidates, political parties, and the voters supporting each, from city candidates, parties, and voters. In 1977, an independent candidate or a new political party in Chicago, a city with approximately 718,937 voters eligible to sign nominating petitions for the mayoral election in 1977,8 had to secure over 10,000 more signatures on nominating petitions than an independent candidate or new party in state elections, who had a pool of approximately 4.5 million eligible voters from which to obtain signatures.9 That the distinction between state and city elections undoubtedly is valid for some purposes does not resolve whether it is valid as applied here. 20 Restrictions on access to the ballot burden two distinct and fundamental rights, "the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively." Williams v. Rhodes, supra, 393 U.S. at 30, 89 S.Ct. at 10. The freedom to associate as a political party, a right we have recognized as fundamental, see 393 U.S., at 30-31, 89 S.Ct. at 10, has diminished practical value if the party can be kept off the ballot. Access restrictions also implicate the right to vote because absent recourse to referendums, "voters can assert their preferences only through candidates or parties or both." Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 702 (1974). By limiting the choices available to voters, the State impairs the voters' ability to express their political preferences. And for reasons too self-evident to warrant amplification here, we have often reiterated that voting is of the most fundamental significance under our constitutional structure. Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 534, 11 L.Ed.2d 481 (1964); Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964); Dunn v. Blumstein, supra, 405 U.S. at 336, 92 S.Ct. at 999. 21 When such vital individual rights are at stake, a State must establish that its classification is necessary to serve a compelling interest. American Party of Texas v. White, 415 U.S. 767, 780-781, 94 S.Ct. 1296, 1305-1306, 39 L.Ed.2d 744 (1974); Storer v. Brown, 415 U.S. 724, 736, 94 S.Ct. 1274, 1282, 39 L.Ed.2d 714 (1974); Williams v. Rhodes, supra, 393 U.S. at 31, 89 S.Ct. at 10. To be sure, the Court has previously acknowledged that States have a legitimate interest in regulating the number of candidates on the ballot. In Lubin v. Panish, supra, 415 U.S. at 715, 94 S.Ct. at 1319, we observed: 22 "A procedure inviting or permitting every citizen to present himself to the voters on the ballot without some means of measuring the seriousness of the candidate's desire and motivation would make rational voter choices more difficult because of the size of the ballot and hence would tend to impede the electoral process. . . . The means of testing the seriousness of a given candidacy may be open to debate; the fundamental importance of ballots of reasonable size limited to serious candidates with some prospects of public support is not." 23 Similarly, in Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 857, 31 L.Ed.2d 92 (1972) (footnote omitted), the Court expressed concern for the States' need to assure that the winner of an election "is the choice of a majority, or at least a strong plurality, of those voting, without the expense and burden of runoff elections." Consequently, we have upheld properly drawn statutes that require a preliminary showing of a "significant modicum of support" before a candidate or party may appear on the ballot. Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971); see, e. g., American Party of Texas v. White, supra. 24 However, our previous opinions have also emphasized that "even when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty," Kusper v. Pontikes, 414 U.S. 51, 58-59, 94 S.Ct. 303, 308, 38 L.Ed.2d 260 (1973), and we have required that States adopt the least drastic means to achieve their ends. Lubin v. Panish, supra, 415 U.S. at 716, 94 S.Ct. at 1320; Williams v. Rhodes, supra, 393 U.S. at 31-33, 89 S.Ct. at 10-11. This requirement is particularly important where restrictions on access to the ballot are involved. The States' interest in screening out frivolous candidates must be considered in light of the significant role that third parties have played in the political development of the Nation. Abolitionists, Progressives, and Populists have undeniably had influence, if not always electoral success. As the records of such parties demonstrate, an election campaign is a means of disseminating ideas as well as attaining political office. See A. Bickel, Reform and Continuity 79-80 (1971); W. Binkley, American Political Parties 181-205 (3d ed. 1959); H. Penniman, Sait's American Political Parties and Elections 223-239 (5th ed. 1952). Overbroad restrictions on ballot access jeopardize this form of political expression. 25 The signature requirements for independent candidates and new political parties seeking offices in Chicago are plainly not the least restrictive means of protecting the State's objectives. The Illinois Legislature has determined that its interest in avoiding overloaded ballots in statewide elections is served by the 25,000-signature requirement. Yet appellant has advanced no reason, much less a compelling one, why the State needs a more stringent requirement for Chicago. At oral argument, appellant explained that the signature provisions for statewide elections originally reflected a different approach than those for elections in political subdivisions. Tr. of Oral Arg. 35-37. Not only were independent candidates and new political parties in state elections required to obtain 25,000 signatures, but those signatures also had to meet standards pertaining to geographic distribution. By comparison, candidates and parties in city elections had only to obtain signatures from a flat percentage of the qualified voters. In Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), this Court struck down on equal protection grounds Illinois' requirement that the nominating petition of a candidate for statewide office include the signatures of at least 200 qualified voters from at least 50 counties. Following Moore, the Court of Appeals for the Seventh Circuit invalidated a provision in the amended statute which specified that no more than 13,000 signatures on a new party's petition for statewide elections could come from any one county. Communist Party of Illinois v. State Board of Elections, 518 F.2d 517, cert. denied, 423 U.S. 986, 96 S.Ct. 394, 46 L.Ed.2d 303 (1975). Thus, appellant noted, the invalidation of the geographic constraints has tied the requirements for both city and state candidates solely to a population standard, giving rise to the anomaly at issue here. 26 Although this account may explain the anomaly, appellant still has suggested no reasons that justify its continuation. Historical accident, without more, cannot constitute a compelling state interest. We therefore hold that the Illinois Election Code is unconstitutional insofar as it requires independent candidates and new political parties to obtain more than 25,000 signatures in Chicago. IV 27 Appellant finally challenges the Court of Appeals' disposition of its appeal from the March 17 settlement order. The court dismissed as moot appellant's claim that the Chicago Board lacked authority to conclude a settlement agreement without the State's consent. In appellant's view, the court erred in not placing this claim within the exception to the mootness doctrine for cases that are "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). 28 In Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975), we elaborated on this exception, holding that a case is not moot when: 29 "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." 30 Although the first branch of the test is satisfied here, appellant has presented no evidence creating a reasonable expectation that the Chicago Board will repeat its purportedly unauthorized actions in subsequent elections. Appellant's conclusory assertions that the actions are capable of repetition are not sufficient to satisfy the Weinstein test, particularly since appellant does not contend that the Chicago Board has ever attempted previously to conclude litigation without its approval. The Chicago Board's entry into a settlement agreement reflected neither a policy it had determined to continue, cf. United States v. New York Telephone Co., 434 U.S. 159, 165 n. 6, 98 S.Ct. 364, 368, 54 L.Ed.2d 376 (1977), nor even a consistent pattern of behavior, cf. SEC v. Sloan, 436 U.S. 103, 109-110, 98 S.Ct. 1702, 1707, 56 L.Ed.2d 148 (1978). And the Chicago Board's action patently was not a matter of statutory prescription, as was the case in other election decisions on which appellant relies, e. g., Storer v. Brown, 415 U.S., at 737 n. 8, 94 S.Ct., at 1282; Moore v. Ogilvie, supra, 394 U.S. at 816, 89 S.Ct. at 1494. We therefore find that appellant's challenge was properly dismissed as moot. 31 The judgment of the Court of Appeals is affirmed. 32 It is so ordered. 33 THE CHIEF JUSTICE concurs in the judgment. 34 Mr. Justice BLACKMUN, concurring. 35 Although I join the Court's opinion and its strict-scrutiny approach for election cases, I add these comments to record purposefully, and perhaps somewhat belatedly, my unrelieved discomfort with what seems to be a continuing tendency in this Court to use as tests such easy phrases as "compelling [state] interest" and "least drastic [or restrictive] means." See, ante, at 184, 185, and 186. I have never been able fully to appreciate just what a "compelling state interest" is. If it means "convincingly controlling," or "incapable of being overcome" upon any balancing process, then, of course, the test merely announces an inevitable result, and the test is no test at all. And, for me, "least drastic means" is a slippery slope and also the signal of the result the Court has chosen to reach. A judge would be unimaginative indeed if he could not come up with something a little less "drastic" or a little less "restrictive" in almost any situation, and thereby enable himself to vote to strike legislation down. This is reminiscent of the Court's indulgence, a few decades ago, in substantive due process in the economic area as a means of nullification. 36 I feel, therefore, and have always felt, that these phrases are really not very helpful for constitutional analysis. They are too convenient and result oriented, and I must endeavor to disassociate myself from them. Apart from their use, however, the result the Court reaches here is the correct one. It is with these reservations that I join the Court's opinion. 37 Mr. Justice STEVENS, concurring in part and concurring in the judgment. 38 Placing additional names on a ballot adds to the cost of conducting elections and tends to confuse voters. The State therefore has a valid interest in limiting access to the ballot to serious candidates. If that interest is adequately served by a 25,000-signature requirement in a statewide election, the same interest cannot justify a larger requirement in a smaller election. 39 Nonetheless, I am not sure that the disparity evidences a violation of the Equal Protection Clause. The constitutional requirement that Illinois govern impartially would be implicated by a rule that discriminates, for example, between Socialists and Republicans or between Catholics and Protestants. But I question whether it has any application to rules prescribing different qualifications for different political offices. Rather than deciding that question, I would simply hold that legislation imposing a significant interference with access to the ballot must rest on a rational predicate. This legislative remnant is without any such support. It is either a product of a malfunction of the legislative process or merely a by-product of this Court's decision in Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1, seeante, at 190-191 (REHNQUIST, J., concurring in judgment). In either event, I believe it has deprived appellees of their liberty without the "due process of lawmaking" that the Fourteenth Amendment requires. Cf. Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 98, 97 S.Ct. 911, 925, 51 L.Ed.2d 173 (STEVENS, J., dissenting). 40 For these reasons I concur in the Court's judgment and in Parts I, II, and IV of its opinion. 41 Mr. Justice REHNQUIST, concurring in the judgment. 42 I concur in the judgment of the Court, but I cannot join its opinion: It employs an elaborate analysis where a very simple one would suffice. The disparity between the state and city signature requirements does not make sense, and this Court is intimately familiar with the reasons why. 43 In 1968, Illinois had a coherent set of petition requirements for obtaining a place on the ballot. In order to appear on the ballot in a county or city election, it was necessary for independent candidates and new political parties to obtain voter signatures equal in number to 5% of the voters who voted in the political subdivision at the last general election. Requirements for statewide office put greater emphasis on geographical balance: Independent candidates and new political parties needed 25,000 signatures, and at least 200 signatures had to be obtained from each of 50 counties within the State. Thus, a candidate for statewide office at that time could get on the ballot with fewer signatures than a candidate for office in Cook County, but he was also subject to special restrictions. It was reasonable for Illinois to conclude that this scheme best vindicated its interest in "protect[ing] the integrity of its political processes from frivolous or fraudulent candidacies." Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 857, 31 L.Ed.2d 92 (1972). Cook County is not Illinois, and all the State asked was that candidates and political parties interested in statewide office produce this minimal evidence of statewide support. 44 In 1969, this Court held that the 200 voters per county requirement violated the Equal Protection Clause because different counties had different populations. Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). That decision led to a holding by the Seventh Circuit that the statute, as amended by the legislature after Moore to place a 13,000-signature limit on new political party signatures from any one county, was likewise a denial of equal protection. Communist Party of Illinois v. State Board of Elections, 518 F.2d 517 (C.A.7), cert. denied, 423 U.S. 986, 96 S.Ct. 394, 46 L.Ed.2d 303 (1975). 45 The courts having knocked out key panels in an otherwise symmetrical mosaic, it is not surprising that little sense can be made of what is left. Given this history, I cannot subscribe to my Brother STEVENS' alternative characterization of Illinois' problem as "a malfunction of the legislative process." The legislature enacted a comprehensive Election Code, and amended it once in response to a decision of this Court. The attorneys for the State Board of Elections are now placed in the position of having to defend a law which is but a truncated version of the original enactment. 46 All of this explains the disparate treatment of statewide and Chicago candidates; it does not justify it under any rational-basis test, and appellant has scarcely made any effort to do so before this Court. In the light of this history, and without engaging in any elaborate analysis which pretends that we are dealing with the considered product of a legislature, I would hold that the disparate treatment bears no rational relationship to any state interest. 1 Under Ill.Ann.Stat., ch. 46, § 10-2 (Supp.1978): "A political party which, at the last general election for State and county officers, polled for its candidate for Governor more than 5% of the entire vote cast for Governor, is hereby declared to be an 'established political party' as to the State and as to any district or political subdivision thereof. "A political party which, at the last election in any congressional district, legislative district, county, township, school district, park district, municipality or other district or political subdivision of the State, polled more than 5% of the entire vote cast within such congressional district, legislative district, county, township, school district, park district, municipality, or political subdivision of the State, where such district, political subdivision or municipality, as the case may be, has voted as a unit for the election of officers to serve the respective territorial area of such district, political subdivision or municipality, is hereby declared to be an 'established political party' within the meaning of this Article as to such district, political subdivision or municipality." A new political party is one that has not met these requirements. Individuals desiring to form a new political party throughout the State must file with the State Board of Elections a petition that, inter alia, is "signed by not less than 25,000 qualified voters." In Communist Party of Illinois v. State Board of Elections, 518 F.2d 517 (C.A.7), cert. denied, 423 U.S. 986, 96 S.Ct. 394, 46 L.Ed.2d 303 (1975), the Court of Appeals held unconstitutional the proviso in this section requiring "that no more than 13,000 signatures from the same county may be counted toward the required total of 25,000 signatures." Ill.Ann.Stat., ch. 46, § 10-2 (Supp.1978). A party that files a completed petition becomes entitled to place "upon the ballot at such next ensuing election such list of . . . candidates for offices to be voted for throughout the State . . . under the name of and as the candidates of such new political party." Ibid. With respect to independent candidates, § 10-3 (Supp.1978) provides in pertinent part: "Nomination of independent candidates (not candidates of any political party), for any office to be filled by the voters of the State at large may also be made by nomination papers signed in the aggregate for each candidate by not less than 25,000 qualified voters of the State; Provided, however, that no more than 13,000 signatures from the same county may be counted toward the required total of 25,000 signatures." The record does not reveal whether the State enforces the proviso. 2 Section 10-2 provides: "If such new political party shall be formed for any district or political subdivision less than the entire State, such petition shall be signed by qualified voters equaling in number not less than 5% of the number of voters who voted at the next preceding general election in such district or political subdivision in which such district or political subdivision voted as a unit for the election of officers to serve its respective territorial area." Under § 10-3: "Nominations of independent candidates for public office within any district or political subdivision less than the State, may be made by nomination papers signed in the aggregate for each candidate by qualified voters of such district, or political division, equaling not less than 5%, nor more than 8% (or 50 more than the minimum, whichever is greater) of the number of persons, who voted at the next preceding general election in such district or political subdivision in which such district or political subdivision voted as a unit for the election of officers to serve its respective territorial area." 3 Candidates and new parties in Cook County, Ill., which is more populous than Chicago, would also have to obtain more than 25,000 signatures. In all political subdivisions of the State other than Chicago and Cook County, the 5% standard requires fewer than 25,000 signatures. Tr. of Oral Arg. 20. 4 This disparity in the signature requirements arose because the State and Chicago Boards used voting figures from the April 1, 1975, elections in computing the requirements for independents, but used figures from the November 2, 1976, general election in their calculations for new parties. The pertinent statutory language regarding signature requirements for independent candidates, however, is identical to that for new parties. Compare Ill.Ann.Stat., ch. 46, § 10-3 (Supp.1978), with § 10-2. Section 10-6 of the Election Code provides that nominating petitions for independents and new parties must be filed at least 64 days prior to the election, here, by April 4. The record does not reflect what caused the discrepancy in filing dates in this case. 5 The Chicago Board is responsible for accepting nominating petitions for candidates and preparing the ballots for special elections. Ill.Ann.Stat., ch. 46, §§ 7-60, 7-62, 10-6 (Supp.1978). It also has "charge of and make[s] provisions for all elections, general, special, local, municipal, state and county, and all others of every description to be held in such city or any part thereof, at any time." § 6-26 (Supp.1978). The State Board exercises "general supervision over the administration of the registration and election laws throughout the State." § 1A-1 (Supp.1978); Ill.Const., Art. 3, § 5. 6 Although the State Board was afforded notice and an opportunity to participate in the District Court proceedings, only the Chicago Board appeared for argument on plaintiff-appellees' motion for a permanent injunction. After the court entered the injunction, the State Board moved to vacate the decision, advancing many of the grounds previously asserted by the Chicago Board. Only the State Board has appealed to this Court. The Chicago Board, defending its settlement agreement, see infra, at 180, appears as an appellee. Subsequent references to the "appellees" in this opinion, however, will include only the plaintiff-appellees. 7 Appellees Rose and the United States Labor Party argue that even this statement does not present the issue now before the Court. In their view, it refers to the purported disparity between the treatment of independent candidates and that of new political parties. In fact, appellees argue, there is and was no such disparity. Compare Ill.Ann.Stat., ch. 46, § 10-2 (Supp.1978), with § 10-3. 8 Chicago Board of Election Commissioners, Municipal Election Results (Apr. 1, 1975). 9 U. S. Dept. of Commerce, Bureau of the Census, Statistical Abstract of the United States 505 (1977).

12

440 U.S. 147 Montana et al.v.United States No. 77-1134 Argued December 4, 1978 Decided February 22, 1979 Syllabus Montana levies a 1% gross receipts tax upon contractors of public, but not private, construction projects. A public contractor may credit against the gross receipts tax its payments of personal property, corporate income, and individual income taxes. Any remaining gross receipts tax liability is customarily passed on in the form of increased construction costs to the governmental unit financing the project. In 1971, the contractor on a federal project in Montana brought a suit in state court contending that the gross receipts tax unconstitutionally discriminated against the Government and the companies with which it dealt. The litigation was directed and financed by the United States. Less than a month later, the Government brought this action in the Federal District Court challenging the constitutionality of the tax. By stipulation, the case was continued pending resolution of the state-court litigation, which concluded in a decision by the Montana Supreme Court upholding the tax. Kiewit I. The court found the distinction between public and private contractors consistent with the mandates of the Supremacy and Equal Protection Clauses. At the Solicitor General's direction, the contractor abandoned its request for review by this Court. The contractor then instituted a second state-court action regarding certain tax payments different from those in Kiewit I. The Montana Supreme Court, finding the second claim essentially no different from the first, invoked the doctrines of collateral estoppel and res judicata to affirm the dismissal of the complaint. Kiewit II. Thereafter the District Court heard the instant case on the merits, and concluded that the United States was not bound by Kiewit I and that the tax violated the Supremacy Clause. Held: The United States is collaterally estopped from challenging the prior judgment of the Montana Supreme Court. Pp. 973-979. (a) The interests underlying the related doctrines of collateral estoppel and res judicata—that a "right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies . . .," Southern Pacific R. Co. v. United States, 168 U.S. 1, 48-49, 18 S.Ct. 18, 27, 42 L.Ed. 355—are similarly implicated when nonparties assume control over litigation in which they have a direct financial or proprietary interest and then seek to redetermine issues previously resolved. Here it is undisputed that the United States exercised sufficient control over the Kiewit I litigation to actuate principles of collateral estoppel. Pp. 973-975. (b) The precise constitutional claim advanced by the United States in this litigation was presented and resolved against the Government in Kiewit I. Pp. 975-976. (c) The factual and legal context in which the issues of this case arise has not materially changed since Kiewit I, and thus the normal rules of preclusion should operate to relieve the parties of "redundant litigation [over] the identical question of the statute's application to the taxpayer's status." Tait v. Western Maryland R. Co., 289 U.S. 620, 624, 53 S.Ct. 706, 707, 77 L.Ed. 1405. Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898, distinguished. Pp. 976-978. (d) Though preclusion may be inappropriate when issues of law arise in successive actions involving unrelated subject matter, that exception is inapposite here since the Government's "demands" are closely aligned in time and subject to those in Kiewit I. Nor is this a case where a party has been compelled to accept a state court's determination of issues essential to the resolution of federal questions. Rather the Government, "freely and without reservation submitte[d] [its] federal claims for decision by the state COURTS . . . AN[D] HAD THEM DECIDED THERE. . . . " ENGLand v. medical Examiners, 375 U.S. 411, 419, 84 S.Ct. 461, 466, 11 L.Ed.2d 440. Since the Government has not alleged unfairness or inadequacy in the state procedures to which it voluntarily submitted, it is estopped from relitigating issues previously adjudicated. Pp. 978-979. 437 F.Supp. 354, reversed. Robert A. Poore, Butte, Mont., for appellants. Stuart A. Smith, Washington, D. C., for appellee. [Amicus Curiae Information from 148-149 intentionally omitted] Mr. Justice MARSHALL delivered the opinion of the Court. 1 The State of Montana imposes a one percent gross receipts tax upon contractors of public, but not private, construction projects. Mont.Rev. Codes Ann. § 84-3505 (Supp.1977).1 A public contractor may credit against the gross receipts tax its payments of personal property, corporate income, and individual income taxes.2 Any remaining gross receipts liability is customarily passed on in the form of increased construction costs to the governmental unit financing the project.3 At issue in this appeal is whether a prior judgment by the Montana Supreme Court upholding the tax precludes the United States from contesting its constitutionality and if not, whether the tax discriminates against the Federal Government in violation of the Supremacy Clause. 2 * In 1971, Peter Kiewit Sons' Co., the contractor on a federal dam project in Montana, brought suit in state court contending that the Montana gross receipts tax unconstitutionally discriminated against the United States and the companies with which it dealt. The litigation was directed and financed by the United States. Less than a month after the state suit was filed, the Government initiated this challenge to the constitutionality of the tax in the United States District Court for the District of Montana. On stipulation by the parties, the instant case was continued pending resolution of the state-court litigation. 3 That litigation concluded in a unanimous decision by the Montana Supreme Court sustaining the tax. Peter Kiewit Sons' Co. v. State Board of Equalization, 161 Mont. 140, 505 P.2d 102 (1973) (Kiewit I ). The court found the distinction between public and private contractors consistent with the mandates of the Supremacy and Equal Protection Clauses. Id., at 149-154, 505 P.2d, at 108-110. The contractor subsequently filed a notice of appeal to this Court, but abandoned its request for review at the direction of the Solicitor General. App. to Juris. Statement 86-87. It then instituted a second action in state court seeking a refund for certain tax payments different from those involved in Kiewit I. On determining that the contractor's second legal claim was, in all material respects, identical to its first, the Montana Supreme Court invoked the doctrines of collateral estoppel and res judicata to affirm the dismissal of the complaint. Peter Kiewit Sons' Co. v. Department of Revenue, 166 Mont. 260, 531 P.2d 1327 (1975) (Kiewit II ). 4 After the decision in Kiewit II, a three-judge District Court heard the instant case on the merits. In a divided opinion, the court concluded that the United States was not bound by the Kiewit I decision, and struck down the tax as violative of the Supremacy Clause. 437 F.Supp. 354 (1977). The majority began with the premise that the Supremacy Clause immunizes the Federal Government not only from direct taxation by the States, but also from indirect taxation that operates to discriminate against the Government or those with whom it transacts business. Id., at 359. See United States v. Detroit, 355 U.S. 466, 473, 78 S.Ct. 474, 478, 2 L.Ed.2d 424 (1958); Phillips Chemical Co. v. Dumas Independent School Dist., 361 U.S. 376, 387, 80 S.Ct. 474, 481, 4 L.Ed.2d 384 (1960). Because no private contractors were subject to the Montana gross receipts tax, the court reasoned that the statute impermissibly singled out the Federal Government and those with whom it dealt for disparate treatment. That the tax applied to state and municipal as well as federal contractors did not, in the majority's view, negate the statute's discriminatory character. For although contractors on state projects might pass on the amount of their tax liability to the State in the form of higher construction costs, Montana would recoup its additional expenditure through the revenue that the tax generated. By contrast, when federal contractors shifted the burden of their increased costs to the United States, it would receive no such offsetting revenues. Accordingly, the court concluded that the statute encroached upon the immunity from discriminatory taxation enjoyed by the Federal Government under the Supremacy Clause. 437 F.Supp., at 358-359. One judge argued in dissent both that the United States was estopped from challenging the constitutionality of the tax and that the statutory scheme, because it encompassed receipts of municipal and state as well as federal contractors, was not discriminatory within the meaning of Phillips Chemical Co. v. Dumas Independent School Dist., supra, 437 F.Supp., at 365-366 (Kilkenny, J., dissenting). 5 We noted probable jurisdiction. 436 U.S. 916, 98 S.Ct. 2260, 56 L.Ed.2d 756 (1978). Because we find that the constitutional question presented by this appeal was determined adversely to the United States in a prior state proceeding, we reverse on grounds of collateral estoppel without reaching the merits. II 6 A fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that a "right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies . . .." Southern Pacific R. Co. v. United States, 168 U.S. 1, 48-49, 18 S.Ct. 18, 27, 42 L.Ed. 355 (1897). Under res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action. Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195 (1877); Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 867, 99 L.Ed. 1122 (1955); 1B J. Moore, Federal Practice ¶ 0.405[1], pp. 621-624 (2d ed. 1974) (hereinafter 1B Moore); Restatement (Second) of Judgments § 47 (Tent. Draft No. 1, Mar. 28, 1973) (merger); id., § 48 (bar). Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979); Scott, Collateral Estoppel by Judgment, 56 Harv.L.Rev. 1, 2-3 (1942); Restatement (Second) of Judgments § 68 (Tent. Draft No. 4, Apr. 15, 1977) (issue preclusion). Application of both doctrines is central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdictions. Southern Pacific R. Co., supra, 168 U.S., at 49, 18 S.Ct., at 27; Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 299, 37 S.Ct. 506, 507, 61 L.Ed. 1148 (1917). To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.4 7 These interests are similarly implicated when nonparties assume control over litigation in which they have a direct financial or proprietary interest and then seek to redetermine issues previously resolved.5 As this Court observed in Souffront v. Compagnie des Sucreries, 217 U.S. 475, 486-487, 30 S.Ct. 608, 612, 54 L.Ed. 846 (1910), the persons for whose benefit and at whose direction a cause of action is litigated cannot be said to be "strangers to the cause. . . . [O]ne who prosecutes or defends a suit in the name of another to establish and protect his own right, or who assists in the prosecution or defense of an action in aid of some interest of his own . . . is as much bound . . . as he would be if he had been a party to the record." See Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260, 262, n. 4, 81 S.Ct. 557, 559, 5 L.Ed.2d 540 (1961); cf. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 111, 89 S.Ct. 1562, 1570, 23 L.Ed.2d 129 (1969). Preclusion of such nonparties falls under the rubric of collateral estoppel rather than res judicata because the latter doctrine presupposes identity between causes of action. And the cause of action which a nonparty has vicariously asserted differs by definition from that which he subsequently seeks to litigate in his own right. See G. & C. Merriam Co. v. Saalfield, 241 U.S. 22, 29, 36 S.Ct. 477, 480, 60 L.Ed. 868 (1916); Restatement (Second) of Judgments § 83, comment b, p. 51 (Tent. Draft No. 2, Apr. 15, 1975); 1B Moore ¶ 0.411[6], pp. 1553-1554; Note, Developments in the Law—Res Judicata, 65 Harv.L.Rev. 818, 862 (1952). 8 That the United States exercised control over the Kiewit I litigation is not in dispute. The Government has stipulated that it: 9 (1) required the Kiewit I lawsuit to be filed; 10 (2) reviewed and approved the complaint; 11 (3) paid the attorneys' fees and costs; 12 (4) directed the appeal from State District Court to the Montana Supreme Court; 13 (5) appeared and submitted a brief as amicus in the Montana Supreme Court; 14 (6) directed the filing of a notice of appeal to this Court; and 15 (7) effectuated Kiewit's abandonment of that appeal on advice of the Solicitor General. App. to Juris. Statement 86-87. 16 Thus, although not a party, the United States plainly had a sufficient "laboring oar" in the conduct of the state-court litigation to actuate principles of estoppel. Drummond v. United States, 324 U.S. 316, 318, 65 S.Ct. 659, 660, 89 L.Ed. 969 (1945). See Schnell v. Peter Eckrich & Sons, Inc., supra, 365 U.S., at 262, 81 S.Ct., at 559 n. 4; Souffront v. Compagnie des Sucreries, supra, 217 U.S., at 486-487, 30 S.Ct., at 612; Watts v. Swiss Bank Corp., 27 N.Y.2d 270, 277-278, 317 N.Y.S.2d 315, 320-321, 265 N.E.2d 739, 743-744 (1970). III 17 To determine the appropriate application of collateral estoppel in the instant case necessitates three further inquiries: first, whether the issues presented by this litigation are in substance the same as those resolved against the United States in Kiewit I ; second, whether controlling facts or legal principles have changed significantly since the state-court judgment; and finally, whether other special circumstances warrant an exception to the normal rules of preclusion. 18 * A review of the record in Kiewit I dispels any doubt that the plaintiff there raised and the Montana Supreme Court there decided the precise constitutional claim that the United States advances here. In its complaint in Kiewit I, the contractor alleged that the gross receipts tax and accompanying regulations were unconstitutional because they, inter alia : 19 "(a) illegally discriminate against the Plaintiff, the United States, and its agencies and instrumentalities, and those with whom the United States does business, and deny them due process of law and the equal protection of the laws; 20 "(b) illegally impose a tax on Plaintiff which is not uniform upon the same class of subjects; 21 "(c) illegally and improperly interfere with the Federal Government's power to select contractors and schedule construction and . . . conflict with Federal law and policy regulating Federal procurement; 22 "(d) illegally violate the immunity of the Federal Government and its instruments (including Plaintiff) from state control in the performance of their functions; [and] 23 * * * * * 24 "(f) illegally frustrate the Federal policy of selecting the lowest possible bidder . . . ." App. 37. 25 The Montana Court rejected those contentions on the theory that: 26 "The federal government is being treated in the same manner as the state of Montana treats itself and its subdivisions or municipalities. The only discrimination the federal government can claim is that private contractors are not paying the same tax as public contractors. However, according to [Phillips Chemical Co. v. Dumas School Dist., 361 U.S. 376, 80 S.Ct. 474, 4 L.Ed.2d 384 (1960), and Moses Lake Homes v. Grant County, 365 U.S. 744, 81 S.Ct. 870, 6 L.Ed.2d 66 (1961),] . . . all [that is] required is that the state does not give itself special treatment over that received by the federal government. The Act involved here treats the federal government in the same manner as it treats those who deal with any part of the state government." Kiewit I, 161 Mont., at 152, 505 P.2d, at 109. 27 No different constitutional challenge is at issue in this litigation. Indeed, the United States' amended complaint tracks almost verbatim the language of the plaintiff's in Kiewit I in alleging that the Montana tax provisions: 28 "(1) illegally discriminate against the plaintiff, United States, and its agencies and instrumentalities, and those with whom the United States does business in violation of the Supremacy Clause, Article VI, Clause 2, and the Fourteenth Amendment; 29 "(2) illegally impose a tax on plaintiff's contractors and subcontractors which is not uniform upon the same class of subjects in violation of the Fourteenth Amendment; 30 "(3) illegally force the United States of America to pay more for its construction than does a private party or corporation in violation of the Supremacy Clause, Art. VI, Cl. 2; [and] 31 * * * * * 32 "(5) . . . illegally interfer[e] with the Federal Government's free choice to choose its contractors and frustrat[e] the policy of choosing the lowest bidder in violation of federal procurement law and the Supremacy Clause, Art. IV [sic], Cl. 2." App. 67. 33 Thus, the "question expressly and definitely presented in this suit is the same as that definitely and actually litigated and adjudged" adversely to the Government in state court. United States v. Moser, 266 U.S. 236, 242, 45 S.Ct. 66, 67, 69 L.Ed. 262 (1924). Absent significant changes in controlling facts or legal principles since Kiewit I, or other special circumstances, the Montana Supreme Court's resolution of these issues is conclusive here. B 34 Relying on Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948), the United States argues that collateral estoppel extends only to contexts in which "the controlling facts and applicable legal rules remain unchanged." Id., at 600, 68 S.Ct., at 720. In the Government's view, factual stasis is missing here because the contract at issue in Kiewit I contained a critical provision which the contracts involved in the instant litigation do not. 35 Under its contract with the Army Corps of Engineers, Kiewit was unable to take advantage of the credit provisions of the gross receipts tax.6 In 1971, however, the United States altered its policy and has since required Montana contractors to seek all available refunds and credits. See 437 F.Supp., at 358; App. 91. As the Government reads the Kiewit I decision, the Montana Supreme Court proceeded on the assumption that if Kiewit had been able to avail itself of the offsetting income and property tax credits, there might have been a "total washout" of its gross receipts tax liability. 161 Mont., at 145, 505 P.2d, at 106. Thus, according to the Government, the holding of Kiewit I was that the Montana statute did not discriminate against the United States under circumstances where, but for the Federal Government's own contractual arrangement, the tax might have had no financial impact. Brief for United States 35-36. Because the uncontroverted evidence in this case establishes that after taking all credits available, federal contractors are still subject to a gross revenue tax of one-half of one percent, App. to Juris. Statement 90, the Government submits that the factual premise of the Kiewit I holding is absent here. 36 We disagree.7 It is, of course, true that changes in facts essential to a judgment will render collateral estoppel inapplicable in a subsequent action raising the same issues. See, e. g., United States v. Certain Land at Irving Place & 16th Street, 415 F.2d 265, 269 (CA2 1969); Metcalf v. Commissioner of Internal Revenue, 343 F.2d 66, 67-68 (CA1 1965); Alexander v. Commissioner of Internal Revenue, 224 F.2d 788, 792-793 (CA5 1955); 1B Moore ¶ 0.448, pp. 4232-4233, ¶ 0.422[4], pp. 3412-3413. But we do not construe the opinion in Kiewit I as predicated on the factual assumption that the gross receipts tax would cancel out if public contractors took all available refunds and credits. 37 The Montana Supreme Court adverted to the washout possibility when discussing the origin of the gross receipts tax as a revenue-enforcing rather than revenue-generating measure. Prior to the enactment of the statute, certain public contractors had evaded assessment of local property taxes by shifting equipment from one construction site to another, and by filing corporate or personal income tax returns that did not fairly reflect the amount of profit attributable to construction projects within the State. 161 Mont., at 143-145, 505 P.2d, at 104-105.8 In establishing a flat percentage tax on gross receipts, with credits available for income and property tax payments, the Montana Legislature sought to remove any incentive for contractors to dissemble about the location of taxable equipment and the source of taxable revenues. Under the statutory scheme, a contractor who paid a substantial amount of property or income taxes might, by claiming those payments as credits, effectively cancel out his gross receipts tax liability. Id., at 145, 505 P.2d, at 105. In practice, the court noted in Kiewit I, the statute had not resulted in a total offset of the 1% gross receipts payments, in part because of provisions such as those in federal contracts. Ibid., 505 P.2d, at 106. Significantly, however, the court did not rely on the potential absence of tax liability in its analysis of Kiewit's constitutional challenge. Indeed, it did not even allude to the washout potential in the course of that discussion. Id., at 147-154, 505 P.2d, at 106-110. It focused rather on the rationality of the classification between public and private contractors, and on the parity of treatment between the United States and other public contractors. Ibid. 38 Our conclusion that the washout potential of the tax was not of controlling significance in Kiewit I is further reinforced by the Montana Supreme Court's holding in Kiewit II. There, the contractor alleged that its gross receipts tax liability had exceeded its property and income tax credits, and argued that "the only basis" for the decision in Kiewit I was that "if the Act were properly enforced it would result in a 'washout.' " Kiewit II, 166 Mont., at 262, 531 P.2d, at 1328. The Montana Supreme Court rejected that reading of Kiewit I as "much too narro[w]." 166 Mont., at 263, 531 P.2d, at 1329. That the offset possibility had not materialized for Kiewit was, in the court's view, a fact too "inconsequential" to warrant relitigation of the statute's constitutionality. Id., at 264, 531 P.2d, at 1329. So too here, we cannot view the absence of a total washout as altering facts essential to the judgment in Kiewit I. 39 Thus, unless there have been major changes in the law governing intergovernmental tax immunity since Kiewit I, the Government's reliance on Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948), is misplaced. Sunnen involved the tax status of certain income generated by a license agreement during a particular tax period. Although previous litigation had settled the status of income from the same agreement during earlier tax years, the Court declined to give collateral estoppel effect to the prior judgment because there had been a significant "change in the legal climate." Id., at 606, 68 S.Ct., at 723. Underlying the Sunnen decision was a concern that modifications in "controlling legal principles," id., at 599, 68 S.Ct., at 720, could render a previous determination inconsistent with prevailing doctrine, and that 40 "[i]f such a determination is then perpetuated each succeeding year as to the taxpayer involved in the original litigation, he is accorded a tax treatment different from that given to other taxpayers of the same class. As a result, there are inequalities in the administration of the revenue laws, discriminatory distinctions in tax liability, and a fertile basis for litigious confusion. [Collateral estoppel] is not meant to create vested rights in decisions that have become obsolete or erroneous with time, thereby causing inequities among taxpayers." Ibid. (citations omitted). 41 No such considerations obtain here. The Government does not contend and the District Court did not find that a change in controlling legal principles had occurred between Kiewit I and the instant suit. That the Government's amended complaint in this action replicates in substance the legal argument advanced by the contractor's complaint in Kiewit I further suggests the absence of any major doctrinal shifts since the Montana Supreme Court's decision.9 42 Because the factual and legal context in which the issues of this case arise has not materially altered since Kiewit I, normal rules of preclusion should operate to relieve the parties of "redundant litigation [over] the identical question of the statute's application to the taxpayer's status." Tait v. Western Maryland R. Co., 289 U.S. 620, 624, 53 S.Ct. 706, 707, 77 L.Ed. 1405 (1933). See United States v. Russel Mfg. Co., 349 F.2d 13, 18-19 (CA2 1965). C 43 The sole remaining question is whether the particular circumstances of this case justify an exception to general principles of estoppel. Of possible relevance is the exception which obtains for "unmixed questions of law" in successive actions involving substantially unrelated claims. United States v. Moser, 266 U.S. 236, 242, 45 S.Ct. 66, 67, 69 L.Ed. 262 (1924). As we recognized in Moser : 44 "Where, for example, a court in deciding a case has enunciated a rule of law, the parties in a subsequent action upon a different demand are not estopped from insisting that the law is otherwise, merely because the parties are the same in both cases. But a fact, question or right distinctly adjudged in the original action cannot be disputed in a subsequent action, even though the determination was reached upon an erroneous view or by an erroneous application of the law." Ibid. (emphasis added). 45 Thus, when issues of law arise in successive actions involving unrelated subject matter, preclusion may be inappropriate. See Restatement (Second) of Judgments § 68.1, Reporter's Note, pp. 43-44 (Tent. Draft No. 4, Apr. 15, 1977); 1B Moore ¶ 0.448, p. 4235; Scott, 56 Harv.L.Rev., at 10. This exception is of particular importance in constitutional adjudication. Unreflective invocation of collateral estoppel against parties with an ongoing interest in constitutional issues could freeze doctrine in areas of the law where responsiveness to changing patterns of conduct or social mores is critical. To be sure, the scope of the Moser exception may be difficult to delineate, particularly where there is partial congruence in the subject matter of successive disputes. But the instant case poses no such conceptual difficulties. Rather, as the preceding discussion indicates, the legal "demands" of this litigation are closely aligned in time and subject matter to those in Kiewit I. 46 Nor does this case implicate the right of a litigant who has "properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims," and who is then "compelled, without his consent . . ., to accept a state court's determination of those claims." England v. Medical Examiners, 375 U.S. 411, 415, 84 S.Ct. 461, 464, 11 L.Ed.2d 440 (1964) (footnote omitted). As we held in England, abstention doctrine may not serve as a vehicle for depriving individuals of an otherwise cognizable right to have federal courts make factual determinations essential to the resolution of federal questions. Id., at 417, 84 S.Ct., at 465. See NAACP v. Button, 371 U.S. 415, 427, 83 S.Ct. 328, 335, 9 L.Ed.2d 405 (1963). However, here, as in England, a party has "freely and without reservation submit[ted] his federal claims for decision by the state courts . . . and ha[d] them decided there . . . ." England v. Medical Examiners, supra, 375 U.S., at 419, 84 S.Ct., at 467.10 Considerations of comity as well as repose militate against redetermination of issues in a federal forum at the behest of a plaintiff who has chosen to litigate them in state court. 47 Finally, the Government has not alleged unfairness or inadequacy in the state procedures to which it voluntarily submitted.11 We must conclude therefore that it had a full and fair opportunity to press its constitutional challenges in Kiewit I. Accordingly, the Government is estopped from seeking a contrary resolution of those issues here. The judgment of the District Court is 48 Reversed. 49 Mr. Justice REHNQUIST, concurring. 50 I join the Court's opinion on the customary understanding that its references to law review articles and drafts or finally adopted versions of the Restatement of Judgments are not intended to bind the Court to the views expressed therein on issues not presented by the facts of this case. 51 Mr. Justice WHITE, dissenting. 52 I disagree that the Government was estopped from litigating its claim in federal court by virtue of the earlier action in the courts of Montana. And on the merits I think the Montana gross receipts tax is constitutionally infirm. Thus, I would affirm the decision below. 53 * It is basic that the principle of collateral estoppel "must be confined to situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts . . . remain unchanged." Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 599-600, 68 S.Ct. 715, 720, 92 L.Ed. 898 (1948). The Court does not dispute this, but maintains that discrepancies in the facts underlying the state and federal actions were of no moment. It is clear, however, that the Montana Supreme Court assumed in Kiewit I that the tax under scrutiny was a tax enforcing, rather than a revenue collecting, measure. The significance of that supposition, in my view, is refuted neither by the opinion in Kiewit I nor by the state court's subsequent pronouncements in Kiewit II. That the assumption lost its force by the time of the federal litigation is undisputed. By then the Federal Government had abandoned its policy of requiring contractors with whom it dealt to forgo credits available under the gross receipts law. Though federal contractors accordingly availed themselves of the credits and refunds allowable under the law, "the uncontroverted evidence in this case establishes that . . . federal contractors are still subject to a [net] gross revenue tax of one-half of one percent." Ante, at 976. Because the facts developed before the three-judge court cast the constitutional issues in a wholly different light, I think the court properly proceeded to decide those issues uninhibited by the prior state adjudication. 54 At the outset of its discussion in Kiewit I, the Montana Supreme Court labored to demonstrate that the gross receipts tax in issue was a tax-enforcing measure, in that funds collected pursuant thereto would be applied, or credited, against taxes otherwise due. The court understood that the tax had not in practice resulted in a total washout of gross receipts payments, but it attributed this to the Federal Government's policy prohibiting certain contractors—such as the Kiewit Co. itself—from taking refunds and credits available under the law, and to ignorance of, and indifference to, the credit provisions on the part of other contractors. The court maintained that, aside from such aberrations, the Act was intended to and would "operate as a revenue enforcing measure." Peter Kiewit Sons' Co. v. State Board of Equalization, 161 Mont. 140, 146, 505 P.2d 102, 106 (1973) (emphasis added). 55 The majority surmises that the state court's extensive characterization of the tax was irrelevant to the court's constitutional analysis. But that view relegates to dicta the state court's careful appraisal of the operation and impact of the tax. By inspecting the state court's constitutional analysis independently of that court's evaluation of the nature of the tax, the majority assumes that the constitutional adjudication proceeded in vacuo. The logic of the state court's decision may well extend to a revenue-raising measure. But to say that Kiewit I may be persuasive authority on that score is not to establish that it has adjudicated the issue. 56 Moreover, the Court's reliance on Kiewit II to demonstrate the immateriality of the "washout" nature of the tax to the decision in Kiewit I is misplaced. I recognize that the Montana Supreme Court regarded Kiewit's second attack—launched after the contractual credit restrictions were removed by the Government—as foreclosed by the judgment in the first suit. But in addressing Kiewit's objection to the application of the tax in a manner to raise revenue, the court acknowledged that "it may be that Kiewit would be entitled to a refund or some other administrative remedy." Peter Kiewit Sons' Co. v. Department of Revenue, 166 Mont. 260, 262, 531 P.2d 1327, 1328 (1975). The statute, of course, contemplates no such remedy, nor did the court affirmatively construe it to authorize one.1 Yet the court's remark leaves unclear whether, absent such a remedy, the court would persist in holding the tax constitutional. The statement underscores the court's assumption in Kiewit I that the gross receipts tax was a tax-enforcing device and suggests correlatively that the decision there did not condone imposition of an unmitigated positive tax solely on public contractors.2 The majority is unsound in inferring from Kiewit II that the ruling in Kiewit I was insensitive to the then-presumed "washout" character of the gross receipts tax. 57 As I see it, then, there was a "modification of the significant facts" that rendered the prior state "determination obsolete . . . at least for future purposes," Commissioner of Internal Revenue v. Sunnen, supra, at 599, 68 S.Ct., at 720; and the Government was free to litigate its constitutional challenge in federal court. II 58 On the merits, the judgment below should be sustained. There is nothing wrong, of course, with a state gross receipts tax of general applicability that incidentally applies to contractors who deal with the Federal Government thus increasing its construction costs. United States v. County of Fresno, 429 U.S. 452, 460, 97 S.Ct. 699, 703, 50 L.Ed.2d 683 (1977); James v. Dravo Contracting Co., 302 U.S. 134, 160, 58 S.Ct. 208, 221, 82 L.Ed. 155 (1937). "So long as the tax is not directly laid on the Federal Government, it is valid if nondiscriminatory . . . or until Congress declares otherwise." United States v. County of Fresno, supra, 429 U.S., at 460, 97 S.Ct., at 704. 59 In Fresno, we stressed the requirement that the state tax be "imposed equally on the other similarly situated constituents of the State." 429 U.S., at 462, 97 S.Ct., at 704. Such concern for discriminatory taxation 'returns to the original intent of M'Culloch v. Maryland [, 4 Wheat. 316, 4 L.Ed. 579 (1819)]." Id., at 462-463, 97 S.Ct., at 705. We observed that "[t]he political check against abuse of the taxing power found lacking in M'Culloch . . . is present where the State imposes a nondiscriminatory tax only on its constituents or their artificially owned entities; and M'Culloch foresaw the unfairness in forcing a State to exempt private individuals with beneficial interests in federal property from taxes imposed on similar interests held by others in private property." Ibid. 60 The Montana gross receipts tax cannot survive application of the foregoing principles. It is not a law generally embracing all similarly situated state constituents doing business in the private and public sectors. While mandating collection of revenue from contractors who transact with public entities, the law passes over all contractors who deal with private parties. Thus, the "political check" that would have been provided by private-sector contractors "against abuse of the taxing power [is] lacking." Ibid. 61 Appellants maintain that contractors who deal with private enterprises are not situated similarly to those who transact with public bodies. They point to special problems associated with enforcement of state tax laws against contractors prone to move about the State in pursuit of large public contracts. The gross receipts tax measure was necessary, it is argued, in order to facilitate enforcement of other tax laws against such contractors. Concededly, however, the same problems exist with respect to large private contractors; and even assuming that differentiation between public-sector and private-sector contractors is warranted in the context of tax enforcement measures, appellants' representations provide no basis for discriminating in regard to revenue raising. 62 The Montana Supreme Court in the Kiewit litigation defended the classification for equal protection purposes by submitting that the public's stake in the safety of building projects, and hence in the qualifications of public contractors, warranted treating public-sector contractors differently from their private-sector counterparts. But these considerations, like the matters advanced by appellants, fail to explain why a tax is collected from the former but not the latter.3 Moreover, though the law may be sustainable against an equal protection assault, the indulgent standard used in that area will not be applied when federal supremacy is threatened. See Phillips Chemical Co. v. Dumas Independent School Dist., 361 U.S. 376, 383-385, 80 S.Ct. 474, 479-480, 4 L.Ed.2d 384 (1960). In such circumstances, disparate treatment "must be justified by significant differences between the two classes"; there must be "considerations provid[ing] solid support for the classification." Id., at 383-384, 80 S.Ct., at 479 (emphasis added). It seems plain, then, that private-sector and public-sector contractors are similarly situated for purposes of this litigation. III 63 Appellants contend, nonetheless, that it is enough that the tax reaches contractors dealing with all public entities—state or federal. Appellants root their contention in this Court's statement in Phillips Chemical Co. v. Dumas Independent School Dist., supra, at 385, 80 S.Ct., at 480, that a State must "treat those who deal with the Government as well as it treats those with whom it deals itself." (Emphasis added.) But Phillips furnishes no support for appellants' position. There, the Court held unconstitutional a state tax scheme that treated lessees of federal property more severely than lessees of state property. Even before addressing that issue, however, the Court ascertained that there was "no discrimination between the Government's lessees and lessees of private property." 361 U.S., at 381, 80 S.Ct., at 478. Thus, the Court in Phillips evinced concern for equal treatment of all similarly situated persons connected with both the private and public sector, not just of persons within the public sector. 64 In any event, I see no basis whatsoever for extracting from the principle that a State may not favor itself over the Federal Government the further proposition that a State may favor its private-sector constituents so long as contractors working for public bodies are taxed. Indeed, in Fresno the Court sustained the tax only after assuring itself that persons who rented federal property were "no worse off under California tax laws than those who work for private employers and rent houses in the private sector." 429 U.S., at 465, 97 S.Ct., at 706. Such laws, reaching broadly across the public and private sectors, are characteristic of those this Court has sustained. E. g., United States v. Detroit, 355 U.S. 466, 78 S.Ct. 474, 2 L.Ed.2d 424 (1958); Detroit v. Murray Corp., 355 U.S. 489, 78 S.Ct. 458, 2 L.Ed.2d 441 (1958); Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3 (1941); James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155 (1937); Silas Mason Co. v. Tax Comm'n, 302 U.S. 186, 58 S.Ct. 233, 82 L.Ed. 187 (1937). 65 There is good reason to insist that a state tax be "imposed equally" on all "similarly situated constituents of the State," United States v. County of Fresno, 429 U.S., at 462, 97 S.Ct., at 704, whether connected with the public sector or private. Broad application of a tax is necessary to guarantee an efficacious "political check" on potentially abusive taxation. The Montana gross receipts tax, limited as it is to public-sector contractors, provides little such assurance. Taxation of contractors dealing directly with the State or state agencies affords no safeguard against discriminatory treatment of federal contracting agencies and the contractors with whom they deal. Any tax increase passed along by a contractor would be borne fully by a federal agency but would be offset by the corresponding tax revenues in the case of the State; from the State's perspective the tax is a washout. 66 Municipalities and local districts, it is true, do not enjoy the same advantage, and they may resist tax increases that would, if successfully enforced, burden them and the Federal Government alike. But, at least potentially, local subdivisions may secure offsetting state assistance by indirection,4 and that may diminish their incentive to oppose tax hikes. Even assuming, however, that local public bodies share an interest with the Federal Government in restraining taxes, it escapes me why the Government must acquiesce in the limited protection they provide when an enhanced political check would ensue from extension of the tax to other similarly situated state constituents. As I have indicated, there is no support for such a notion in the decisions of this Court. M'Culloch, itself, condoned state taxation of private interests in federal property "in common with other property of the same description throughout the State." M'Culloch v. Maryland, 4 Wheat. 316, 436, 4 L.Ed. 579 (1819) (emphasis added). And in Fresno we observed that escalation of a state tax so as to destroy or impair a federal function might be forestalled by imposition of the tax "on the income and property interests of all other residents and voters of the State." 429 U.S., at 463, 97 S.Ct., at 705 n. 11. These decisions counsel against nice determinations regarding the political leverage of this group or that and establish the simple but fundamental proposition that the Federal Government is entitled to the full measure of protection derivable from inclusion of all similarly situated state constituents in the class subject to the tax. 67 Appellants suggested at oral argument that private-sector contracting comprises a relatively small percentage of all contracting in the State and argue that exclusion of private-sector contractors from the ambit of the gross receipts tax is therefore excusable. But appellants do not seriously contend that private-sector contracting in Montana is de minimis, nor would any such assertion find support in the record.5 Private contracting parties, if subjected to this tax, would provide significant additional protection against abuse of the state taxing power. Exempting the private sector from the Montana gross receipts tax was accordingly contrary to the Constitution. 68 As I believe the three-judge court properly reached and decided the merits of the Government's claim, I dissent from reversal of the judgment below. 1 Section 84-3505(5), Mont.Rev. Codes Ann. (Supp.1977), provides in part: "each public contractor shall pay to the state an additional license fee in a sum equal to one per cent (1%) of the gross receipts from public contracts during the income year for which the license is issued . . . ." The Act defines public contractors to include: "(1) . . . any person who submits a proposal to or enters into a contract for performing all public construction work in the state with the federal government, state of Montana, or with any board, commission, or department thereof or with any board of county commissioners or with any city or town council . . . or with any other public board, body, commission, or agency authorized to let or award contracts for any public work when the contract cost, value, or price thereof exceeds the sum of $1,000. "(2) . . . subcontractors undertaking to perform the work covered by the original contract or any part thereof, the contract cost, value, or price of which exceeds the sum of $1,000." § 84-3501 (Supp.1977). Gross receipts encompass: "all receipts from sources within the state, whether in the form of money, credits, or other valuable consideration, received from, engaging in, or conducting a business, without deduction on account of the cost of the property sold, the cost of materials used, labor or service cost, interest paid, taxes, losses, or any other expense whatsoever. However, 'gross receipts' shall not include cash discounts allowed and taken on sales and sales refunds, either in cash or by credit, uncollectible accounts written off from time to time, or payments received in final liquidation of accounts included in the gross receipts of any previous return made by the person." § 84-3501(3). 2 See §§ 84-3513 and 84-3514 (Supp.1977). 3 See App. 98-108, 112-117, 164. 4 See Hazard, Res Nova in Res Judicata, 44 S.Cal.L.Rev. 1036, 1042-1043 (1971); Vestal, Preclusion/Res Judicata Variables: Adjudicating Bodies, 54 Geo.L.J. 857, 858 (1966); Note, Developments in the Law—Res Judicata, 65 Harv.L.Rev. 818, 820 (1952). 5 Although the term "privies" has been used on occasion to denominate nonparties who control litigation, see, e. g., G. & C. Merriam Co. v. Saalfield, 241 U.S. 22, 27, 36 S.Ct. 477, 479, 60 L.Ed. 868 (1916); Restatement of Judgments § 83, comment a (1942), this usage has been criticized as conclusory and analytically unsound. 1B Moore, ¶ 0.411[6], p. 1553; cf. Note, 65 Harv.L.Rev., at 856. The nomenclature has been abandoned in the applicable section of the Second Edition of the Restatement. See Restatement (Second) of Judgments § 83 (Tent. Draft No. 2, Apr. 15, 1975). 6 Clause 58 of the contract enumerated the credit provisions of the Montana statute and provided that "[t]he Contractor, and in turn the subcontractors will not take advantage of these credits." Peter Kiewit Sons' Co. v. State Board of Equalization, 161 Mont. 140, 145-146, 505 P.2d 102, 106 (1973) (Kiewit I ). The record does not reflect the reason for the Government's policy. See Tr. of Oral Arg. 35. 7 A threshold difficulty with the Government's argument is that the record does not support its assertion that contractual provisions barring contractors from taking credits are "no longer applicable in the contracts involved in this litigation." Brief for United States 14. See also Tr. of Oral Arg. 37. The Montana gross receipts statute was enacted in 1967, and the Government has not limited its request for relief to gross receipts taxes paid after 1971 when the contractual provisions involved in Kiewit I were discontinued. See supra, at 976. To the contrary, the Government's amended complaint in the instant case seeks a refund of all tax payments, less credits, made under the Montana statute. App. 68-69. Thus, the Government's contention concerning factual changes does not justify the District Court's refusal to invoke estoppel with respect to the pre-1971 claims. 8 Apparently the problem had not arisen to any appreciable extent with private contractors. Tr. of Oral Arg. 5-6. 9 See supra, at 975. 10 The Government seeks to distinguish England on the ground that the court below did not technically abstain, but rather, at the parties' request, continued the action "pending the resolution in the state courts of Montana." App. to Juris. Statement 49-50. Further, in the Government's view, the rule of England arises only when a party freely submits his federal claims to adjudication in state courts. Because the United States was not a party in Kiewit I, the Government submits that it is not bound by the judgment in that case. Brief for United States 34. We agree that the District Court's action is properly characterized as a continuance and that res judicata, the doctrine involved in England, is inapplicable to nonparties. See supra, at 974-975. But neither point is availing here since we dispose of the case on grounds of collateral estoppel, which does apply to nonparties, see ibid., and invoke England simply to dispel any inference that the same result would obtain if the Federal Government had been forced into state court and had reserved its federal claim. 11 Redetermination of issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation. See Restatement (Second) of Judgments § 68.1(c) (Tent. Draft No. 4, Apr. 15, 1977); Note, The Preclusive Effect of State Judgments on Subsequent 1983 Actions, 78 Colum.L.Rev. 610, 640-653 (1978). Cf. Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973); Trainor v. Hernandez, 431 U.S. 434, 469-470, 97 S.Ct. 1911, 1931, 52 L.Ed.2d 486 and n. 15 (1977) (STEVENS, J., dissenting). 1 The Administrator of the Miscellaneous Tax Division of the Montana Department of Revenue testified in the federal proceedings that no administrative remedy existed and that none was contemplated. Deposition of James Madison, Record Doc. No. 68, p. 16. 2 It is true that the court indicated that its first opinion held that there were reasonable grounds for distinguishing between private and public contractors for tax purposes. But the discussion differentiating private and public contractors to which the court alluded was addressed to Kiewit's equal protection claim, not its supremacy claim. See Peter Kiewit Sons' Co. v. State Board of Equalization, 161 Mont. 140, 146-151, 505 P.2d 102, 106-109 (1973). 3 The court suggested that public contractors warrant special tax treatment because public construction projects are more extensively regulated than private jobs and are subject to mandatory supervision or inspection. But the State has stipulated that no "federal contracts [are] subject to state standards, review or supervision, nor [does the State] have any right or authority to suspend any federal contractor's license, nor can the [State] interfere with selection of bidders for the Federal Government." App. to Juris. Statement 79. Thus, the considerations posited by the state court do not distinguish private-sector contractors from those who deal with the Federal Government. 4 Montana has authorized payment of state funds to local political entities in certain contexts. E. g., Mont.Rev.Codes Ann. §§ 50-1802 to 50-1810 (Supp.1977) (funding for certain highway improvements and expansion of services due to coal development); § 11-1834 (Supp.1977) (state payments to municipalities with police departments); § 11-1919 (Supp.1977) (state payments to municipalities with fire department relief associations). 5 The record indicates, if anything, that private-sector contracting is nonnegligible. See App. 108-109, 166-167, 179, 183. See also Bureau of the Census, 1972 Census of Construction Industries 39-2, 39-4, 39-7 (1975).

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440 U.S. 192 99 S.Ct. 1273 59 L.Ed.2d 247 FEDERAL ENERGY REGULATORY COMMISSION, petitioner,v.SHELL OIL COMPANY et al No. 77-1652 CONSUMER ENERGY COUNCIL OF AMERICA, petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION No. 77-1654 Supreme Court of the United States February 22, 1979 On writs of certiorari to the United States Court of Appeals for the Fifth Circuit. Feb. 22, 1979. PER CURIAM. 1 The judgment is affirmed by an equally divided Court. 2 Mr. Justice STEWART took no part in the consideration or decision of these cases.

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440 U.S. 202 99 S.Ct. 1066 59 L.Ed.2d 257 UNITED STATESv.BODCAW COMPANY. No. 78-551. Feb. 26, 1979. PER CURIAM. 1 The United States brought this condemnation action to acquire a permanent easement in land owned by the respondent. The jury determined that just compensation for the easement was $146,206, a sum about halfway between the Government's offer and the respondent's claim. The District Court granted the respondent's motion to increase the award by $20,512.50 to compensate it for the expenses of securing appraisals of the land and for the fees of expert witnesses. A divided panel of the Court of Appeals for the Fifth Circuit affirmed the award in part, holding that the appraisal fees in this case were an appropriate part of the compensation required by the Fifth Amendment: 2 "Under the facts of this case, we cannot conclude that the Bodcaw Company has been made whole for the Government's taking of its land if the large amount expended by it for appraisals in order to demonstrate the unfairness of the price offered by the United States is not considered an element of just compensation." United States v. 1,380.09 Acres of Land, 574 F.2d 238, 241 (1978).1 3 The Fifth Amendment forbids the taking of "private property . . . for public use without just compensation." This Court has often faced the problem of defining just compensation. One principle from which it has not deviated is that just compensation "is for the property, and not to the owner." Monongahela Navigation Co. v. United States, 148 U.S. 312, 326, 13 S.Ct. 622, 626, 37 L.Ed. 463 (1893). As a result, indirect costs to the property owner caused by the taking of his land are generally not part of the just compensation to which he is constitutionally entitled. See, e. g., Dohany v. Rogers, 281 U.S. 362, 50 S.Ct. 299, 74 L.Ed. 904 (1930); Mitchell v. United States, 267 U.S. 341, 45 S.Ct. 293, 69 L.Ed. 644 (1925); Joslin Mfg. Co. v. Providence, 262 U.S. 668, 43 S.Ct. 684, 67 L.Ed. 1167 (1923). See generally 4A J. Sackman, Nichols' Law of Eminent Domain, ch. 14 (rev. 3d ed. 1977). Thus, [a]ttorneys' fees and expenses are not embraced within just compensation . . . ." Dohany v. Rogers, supra, 281 U.S. at 368, 50 S.Ct. at 302. 4 There may be exceptions to this general rule. This case, however, does not qualify as such an exception.2 As the dissenting judge in the Court of Appeals described this litigation, it no more than reflects "the rather typical, oft-recurring situation where the landowner is dissatisfied with the Government's valuation." 574 F.2d, at 242. The court, therefore, was in error in holding that the respondent was entitled to compensation for the costs of the appraisals it had had made.3 5 Perhaps it would be fair or efficient to compensate a landowner for all the costs he incurs as a result of a condemnation action. See Ayer, Allocating the Costs of Determining "Just Compensation," 21 Stan.L.Rev. 693 (1969). Congress moved in that direction with Pub.L. 91-646, 84 Stat. 1894, codified at 42 U.S.C. §§ 4601-4655. Among other costs which the Act placed on the Government were the property owner's reasonable litigation expenses (including attorney's fees) when a condemnation action is dismissed as being unauthorized, when the Government abandons a condemnation, or when the property owner has recovered through an inverse condemnation action under the Tucker Act. 42 U.S.C. § 4654. But such compensation is a matter of legislative grace rather than constitutional command. The respondent's appraisal expenses were not part of the "just compensation" required by the Fifth Amendment. 6 The petition for certiorari is granted, the judgment is reversed, and the case is remanded to the Court of Appeals for the Fifth Circuit for proceedings consistent with this opinion. 7 It is so ordered. 1 The Court of Appeals reduced the award by the amount of compensation allowed by the trial court for expert witness fees. 2 The Court of Appeals relied on its previous decision in United States v. Lee, 360 F.2d 449 (1966). In that case the court allowed as part of a compensation award the owner's expenses in having a survey made of the land to be taken. But the Lee case involved misrepresentation on the part of the Government as to the amount of land to be taken. Even if correctly decided, therefore, that case presented a situation quite different from the present case, where no such misrepresentation was alleged. 3 The Court of Appeals necessarily rested its decision on constitutional grounds. It is settled that litigation costs cannot be assessed against the United States in the absence of statutory authorization. United States v. Worley, 281 U.S. 339, 344, 50 S.Ct. 291, 293, 74 L.Ed. 887 (1930). Although Congress has provided that court costs may sometimes be assessed against the Government when the opposing party prevails, 28 U.S.C. § 2412, that authorization does not apply to condemnation cases. Fed.Rule Civ.Proc. 71A(l ); united states v. 2,186.63 Acres of Land, 464 F.2d 676 (C.A.10 1972); United States ex rel. TVA v. An Easement, 452 F.2d 729 (C.A.6 1971). Thus, even if the appraisal expenses in this case were to be considered "costs," they could not be taxed to the United States. Congress has provided that appraisal fees will be paid by the Government in some condemnation cases, but this case does not fall within the scope of that provision. 42 U.S.C. § 4654.

34

440 U.S. 194 99 S.Ct. 1062 59 L.Ed.2d 248 HARRAH INDEPENDENT SCHOOL DISTRICT et al.v.Mary Jane MARTIN. No. 78-443. Feb. 26, 1979. [Sylllabus from pages 194-195 intentionally omitted] PER CURIAM. 1 Respondent Martin was employed as a teacher by petitioner School District under a contract that incorporated by reference the School Board's rules and regulations. Because respondent was tenured, Oklahoma law required the School Board to renew her contract annually unless she was guilty of, among other things, "wilful neglect of duty." Okl.Stat., Tit. 70, § 6-122 (Supp.1976) (repealed 1977). The same Oklahoma statute provided for hearing and appeal procedures in the event of nonrenewal. One of the regulations incorporated into respondent's contract required teachers holding only a bachelor's degree to earn five semester hours of college credit every three years. Under the terms of the regulation, noncompliance with the continuing-education requirement was sanctioned by withholding salary increases. 2 Respondent, hired in 1969, persistently refused to comply with the continuing-education requirement and consequently forfeited the increases in salary to which she would have otherwise been entitled during the 1972-1974 school years. After her contract had been renewed for the 1973-1974 school term, however, the Oklahoma Legislature enacted a law mandating certain salary raises for teachers regardless of the compliance with the continuing-education policy. The School Board, thus deprived of the sanction which it had previously employed to enforce the provision, notified respondent that her contract would not be renewed for the 1974-1975 school year unless she completed five semester hours by April 10, 1974. Respondent nonetheless declined even to enroll in the necessary courses and, appearing before the Board in January 1974, indicated that she had no intention of complying with the requirement in her contract. Finding her persistent noncompliance with the continuing-education requirement "wilful neglect of duty," the Board voted at its April 1974 meeting not to renew her contract for the following school year. After unsuccessfully pursuing administrative and judicial relief in the Oklahoma state courts, respondent brought this action in the United States District Court for the Western District of Oklahoma. She claimed that the Board's action had denied her liberty and property without due process of law and equal protection of the laws, as guaranteed by the Fourteenth Amendment to the United States Constitution. 3 The District Court dismissed her complaint; it refused to assert "pendent jurisdiction" over respondent's state-law claim that her refusal to comply with the continuing-education provision in her contract did not constitute "wilful neglect of duty" within the meaning of the Oklahoma tenure statute, and it concluded upon the stipulated evidence that the Board had not violated the Fourteenth Amendment in refusing to renew her contract. The Court of Appeals for the Tenth Circuit reversed. 579 F.2d 1192 (1978). Following its own precedent of Weathers v. West Yuma County School Dist. R-J-1, 530 F.2d 1335 (1976), the Court of Appeals determined that respondent had no protected "liberty" interest under the Fourteenth Amendment, but nonetheless held that under an amalgam of the equal protection and due process guarantees of the Fourteenth Amendment she had a constitutional right to retain her employment as a teacher. The Board's "arbitrary and capricious" action, concluded the Court of Appeals, "violated Fourteenth Amendment notions of fairness embodied in the Due Process Clause generally and the Equal Protection Clause particularly." 579 F.2d 1192, 1200 (1978). 4 While our decisions construing the Equal Protection and Due Process Clauses of the Fourteenth Amendment do not form a checkerboard of bright lines between black squares and red squares, neither do they leave courts, and parties litigating federal constitutional claims in them, quite as much at sea as the Court of Appeals apparently thought was the case. It is true, as that court observed, that the Due Process Clause of the Fourteenth Amendment not only accords procedural safeguards to protected interests, but likewise protects substantive aspects of liberty against impermissible governmental restrictions. Kelley v. Johnson, 425 U.S. 238, 244, 96 S.Ct. 1440, 1444, 47 L.Ed.2d 708 (1976). But our cases supply an analytical framework for determining whether the Fourteenth Amendment rights of a person in the position of respondent have been violated. Employing that framework here, we conclude that the Court of Appeals' judgment should be reversed. 5 The School District has conceded at all times that respondent was a "tenured" teacher under Oklahoma law, and therefore could be dismissed only for specified reasons. She was accorded the usual elements of procedural due process. Shortly after the Board's April 1974 meeting, she was advised of the decision not to renew her contract and of her right to a hearing before the Board. At respondent's request, a hearing was held at which both she and her attorney appeared and unsuccessfully contested the Board's determination that her refusal to enroll in the continuing-education courses constituted "wilful neglect of duty." Thus, as the Court of Appeals recognized, respondent has no colorable claim of a denial of procedural due process. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Perry v. Sindermann, 408 U.S. 593, 599-603, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (1972). If respondent is to succeed in her claims under the Fourteenth Amendment, it must be on the basis of either "substantive" due process or equal protection. 6 Relying on the Fourteenth Amendment's protection of the "substantive aspects" of "life, liberty, and property," the Court of Appeals held, apparently, that the School Board's decision to substitute the sanction of contract nonrenewal for the sanction of withholding routine pay increases was so "arbitrary" that it offended "notions of fairness" generally embodied in the Due Process Clause. Here, however, there is no claim that the interest entitled to protection as a matter of substantive due process was anything resembling "the individual's freedom of choice with respect to certain basic matters of procreation, marriage, and family life." Kelley v. Johnson, supra, 425 U.S., at 244, 96 S.Ct., at 1444; see Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Rather, respondent's claim is simply that she, as a tenured teacher, cannot be discharged under the School Board's purely prospective rule establishing contract nonrenewal as the sanction for violations of the continuing-education requirement incorporated into her contract. 7 The School Board's rule is endowed with a presumption of legislative validity, and the burden is on respondent to show that there is no rational connection between the Board's action and its conceded interest in providing its students with competent, well-trained teachers. See Kelley v. Johnson, supra, 425 U.S. at 247, 96 S.Ct. at 1445; Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423, 72 S.Ct. 405, 407, 96 L.Ed. 469 (1952); Prince v. Massachusetts, 321 U.S. 158, 168-170, 64 S.Ct. 438, 443-444, 88 L.Ed. 645 (1944); CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2881, 37 L.Ed.2d 796 (1973). Respondent's claim that the Board acted arbitrarily in imposing a new penalty for noncompliance with the continuingeducation requirement simply does not square with the facts. By making pay raises mandatory, the state legislature deprived the Board of the sanction that it had earlier used to enforce its teachers' contractual obligation to earn continuing-education credits. The Board thus turned to contract nonrenewal, but applied this sanction purely prospectively so that those who might have relied on its past practice would nonetheless have an opportunity to bring themselves into compliance with the terms of the contracts. Indeed, of the four teachers in violation of the continuing-education requirement when the state legislature mandated salary increases, only respondent persisted in refusing to enroll in the necessary courses. Such a course of conduct on the part of a school board responsible for the public education of students within its jurisdiction, and employing teachers to perform the principal portion of that task, can scarcely be described as arbitrary. Respondent's claim of a denial of substantive due process under these circumstances is wholly untenable. 8 The Court of Appeals' reliance upon the equal protection guarantee of the Fourteenth Amendment was likewise mistaken. Since respondent neither asserted nor established the existence of any suspect classification or the deprivation of any fundamental constitutional right, see San Antonio Independent School Dist. v. Rodriquez, 411 U.S. 1, 40, 93 S.Ct. 1278, 1300, 36 L.Ed.2d 16 (1973), the only inquiry is whether the State's classification is "rationally related to the State's objective." Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 315, 96 S.Ct. 2562, 2568, 49 L.Ed.2d 520 (1976). The most cursory examination of the agreed facts demonstrates that the Board's action met this test. 9 The School District's concern with the educational qualifications of its teachers cannot under any reasoned analysis be described as impermissible, and respondent does not contend that the Board's continuing-education requirement bears no rational relationship to that legitimate governmental concern. Rather, respondent contests "the permissibility of the classification by which [she] and three other teachers were required to achieve [by April 1974] the number of continuing education credits that all other teachers were given three years to achieve." Brief in Opposition 7. 10 The Board's objective in sanctioning violations of the continuing-education requirement was, obviously, to encourage future compliance with the requirement. Admittedly, imposition of a penalty for noncompliance placed respondent and three other teachers in a "class" different from those teachers who had complied with their contractual obligations in the past. But any sanction designed to enforce compliance with a valid rule, whatever its source, falls only on those who break the rule. Respondent and those in her "class" were the only teachers immediately affected by the Board's action because they were the only teachers who had previously broken their contractual obligation. There is no suggestion here that the Board enforces the continuing-education requirement selectively; the Board refuses to renew the contracts of those teachers and only those teachers who refuse to comply with the continuing-education requirement. 11 That the Board was forced by the state legislature in 1974 to penalize noncompliance differently than it had in the past in no way alters the equal protection analysis of respondent's claim. Like all teachers employed in the School District, respondent was given three years to earn five continuing-education credits. Unlike most of her colleagues, however, respondent refused to comply with the requirement, thus forfeiting her right to routine pay raises. Had the legislature not mandated salary increases in 1974, the Board presumably would have penalized respondent's continued refusal to comply with the terms of her contract by denying her an increase in salary for yet another year. The Board, having been deprived by the legislature of the sanction previously employed to enforce the continuing-education requirement, merely substituted in its place another, albeit more onerous, sanction. The classification created by both sanctions, however, was between those who had acquired five continuing-education credits within the allotted time and those who had not. 12 At bottom, respondent's position is that she is willing to forgo routine pay raises, but she is not willing to comply with the continuing-education requirement or to give up her job. The constitutional permissibility of a sanction imposed to enforce a valid governmental rule, however, is not tested by the willingness of those governed by the rule to accept the consequences of noncompliance. The sanction of contract nonrenewal is quite rationally related to the Board's objective of enforcing the continuing education obligation of its teachers. Respondent was not, therefore, deprived of equal protection of the laws. 13 The petition for certiorari is granted, and the judgment of the Court of Appeals is 14 Reversed. 15 Mr. Justice MARSHALL concurs in the result.

12

59 L.Ed.2d 261 99 S.Ct. 1067 440 U.S. 205 GROUP LIFE & HEALTH INSURANCE COMPANY, etc., et al., Petitioners,v.ROYAL DRUG COMPANY, etc., et al. No. 77-952. Argued Oct. 11, 1978. Decided Feb. 27, 1979. Rehearing Denied April 16, 1979. See 441 U.S. 917, 99 S.Ct. 2017. Syllabus Petitioner Blue Shield, a Texas insurance company, offers policies that entitle the insured to obtain prescription drugs. The insured may obtain the drugs from a pharmacy participating in a "Pharmacy Agreement" with Blue Shield (in which case the insured must pay only $2 for every prescription drug, with the remainder of the cost being paid directly by Blue Shield to the participating pharmacy) or from a nonparticipating pharmacy (in which case the insured pays the full price and may be reimbursed by Blue Shield for 75% of the difference between that price and $2). Blue Shield offered to enter into a Pharmacy Agreement with each licensed pharmacy in Texas, the participating pharmacy to agree to furnish Blue Shield policyholders prescription drugs at $2 each, with Blue Shield to agree to reimburse the pharmacy for its cost in acquiring the drug. Respondents, nonparticipating pharmacies, brought this antitrust action alleging that Blue Shield and three participating pharmacies, also petitioners, had violated § 1 of the Sherman Act by entering into agreements fixing the retail prices of drugs and that petitioners' activities had caused Blue Shield policyholders to boycott certain respondents. The trial court granted petitioners summary judgment on the ground that the agreements are exempt from the antitrust laws under § 2(b) of the McCarran-Ferguson Act (Act), because the agreements are the "business of insurance," are regulated by Texas, and are not boycotts within the meaning of the Act. The Court of Appeals reversed. Held : The Pharmacy Agreements are not the "business of insurance" within the meaning of § 2(b). Pp. 210-223. (a) Section 2(b) exempts the "business of insurance," not the "business of insurers." Pp. 210-211. (b) A primary element of an insurance contract is the underwriting or spreading of risk, SEC v. Variable Annuity Life Ins. Co., 359 U.S. 65, 79 S.Ct. 618, 3 L.Ed.2d 640, but that element is not involved in the Pharmacy Agreements, which are merely arrangements for the purchase of goods and services by Blue Shield, enabling it to effect cost savings. Pp. 211-215. (c) The Pharmacy Agreements involve contractual arrangements between Blue Shield and the pharmacies, not its policyholders. Pp. 215-217. (d) The legislative history of the Act confirms the conclusion that the "business of insurance" was understood by Congress to involve the underwriting of risk and the relationship and transactions between insurance companies and their policyholders, and no legislative intention is disclosed to exempt agreements or transactions between insurance companies and entities outside the insurance industry. Moreover, at the time of the Act's enactment health-care plans such as those of Blue Shield were not considered to constitute insurance at all, and it is difficult to assume that Congress, contrary to that contemporary view, could have considered such plans to be the "business of insurance" within the meaning of the Act. Even if Congress did consider certain aspects of such plans to be the "business of insurance," however, it still does not follow that the Pharmacy Agreements in this case are within the meaning of that phrase. Pp. 217-230. (e) This result is consistent with the principle that exemptions from the antitrust laws are to be construed narrowly. Pp. 231-233. 556 F.2d 1375 (CA5 1977), affirmed. Keith E. Kaiser, San Antonio, Tex., for petitioners. Joel H. Pullen, San Antonio, Tex., for respondents. Richard A. Allen, Cambridge, Mass., for United States, as amicus curiae, in support of the respondents. Mr. Justice STEWART delivered the opinion of the Court. 1 The respondents, 18 owners of independent pharmacies in San Antonio, Tex., brought an antitrust action in a Federal District Court against the petitioners, Group Life and Health Insurance Co., known as Blue Shield of Texas (Blue Shield), and three pharmacies also doing business in San Antonio. The complaint alleged that the petitioners had violated § 1 of the Sherman Act, 15 U.S.C. § 1, by entering agreements to fix the retail prices of drugs and pharmaceuticals, and that the activities of the petitioners had caused Blue Shield's policyholders not to deal with certain of the respondents, thereby constituting an unlawful group boycott. The trial court granted summary judgment to the petitioners on the ground that the challenged agreements are exempt from the antitrust laws under § 2(b) of the McCarran-Ferguson Act, 59 Stat. 34, as amended, 61 Stat. 448, 15 U.S.C. § 1012(b), because the agreements are the "business of insurance," are "regulated by [Texas] law," and are not "boycotts" within the meaning of § 3(b) of the Act, 59 Stat. 34, 15 U.S.C. § 1013(b).1 415 F.Supp. 343 (W D Tex.). The Court of Appeals for the Fifth Circuit reversed the judgment. Holding that the agreements in question are not the "business of insurance" within the meaning of § 2(b), the appellate court did not reach the other questions decided by the trial court. 556 F.2d 1375. We granted certiorari because of intercircuit conflicts as to the meaning of the phrase "business of insurance" in § 2(b) of the Act.2 2 * Blue Shield offers insurance policies which entitle the policyholders to obtain prescription drugs. If the pharmacy selected by the insured has entered into a "Pharmacy Agreement" with Blue Shield, and is therefore a participating pharmacy, the insured is required to pay only $2 for every prescription drug. The remainder of the cost is paid directly by Blue Shield to the participating pharmacy. If, on the other hand, the insured selects a pharmacy which has not entered into a Pharmacy Agreement, and is therefore a non-participating pharmacy, he is required to pay the full price charged by the pharmacy. The insured may then obtain reimbursement from Blue Shield for 75% of the difference between that price and $2. 3 Blue Shield offered to enter into a Pharmacy Agreement with each licensed pharmacy in Texas. Under the Agreement, a participating pharmacy agrees to furnish prescription drugs to Blue Shield's policyholders at $2 for each prescription, and Blue Shield agrees to reimburse the pharmacy for the pharmacy's cost of acquiring the amount of the drug prescribed. Thus, only pharmacies that can afford to distribute prescription drugs for less than this $2 markup can profitably participate in the plan.3 4 The only issue before us is whether the Court of Appeals was correct in concluding that these Pharmacy Agreements are not the "business of insurance" within the meaning of § 2(b) of the McCarran-Ferguson Act. If that conclusion is correct, then the Agreements are not exempt from examination under the antitrust laws.4 Whether the Agreements are illegal under the antitrust laws is an entirely separate question, not now before us.5 II A. 5 As the Court stated last Term in St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 541, 98 S.Ct. 2923, 2930, 57 L.Ed.2d 932,6 the starting point in a case involving construction of the McCarran-Ferguson Act, like the starting point in any case involving the meaning of a statute, is the language of the statute itself. See also Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (POWELL, J., concurring). It is important, therefore, to observe at the outset that the statutory language in question here does not exempt the business of insurance companies from the scope of the antitrust laws. The exemption is for the "business of insurance," not the "business of insurers": 6 "The statute did not purport to make the States supreme in regulating all the activities of insurance companies ; its language refers not to the persons or companies who are subject to state regulation, but to laws 'regulating the business of insurance.' Insurance companies may do many things which are subject to paramount federal regulation; only when they are engaged in the 'business of insurance' does the statute apply." SEC v. National Securities, Inc., 393 U.S. 453, 459-460, 89 S.Ct. 564, 568, 21 L.Ed.2d 668. (Emphasis in original.) 7 Since the law does not define the "business of insurance," the question for decision is whether the Pharmacy Agreements fall within the ordinary understanding of that phrase, illumined by any light to be found in the structure of the Act and its legislative history. Cf. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 199, and n. 19, 96 S.Ct. 1375, 1384, and n. 19, 47 L.Ed.2d 668. B 8 The primary elements of an insurance contract are the spreading and underwriting of a policyholder's risk. "It is characteristic of insurance that a number of risks are accepted, some of which involve losses, and that such losses are spread over all the risks so as to enable the insurer to accept each risk at a slight fraction of the possible liability upon it." 1 G. Couch, Cyclopedia of Insurance Law § 1:3 (2d ed. 1959). See also R. Keeton, Insurance Law § 1.2(a) (1971) ("Insurance is an arrangement for transferring and distributing risk"); 1 G. Richards, The Law of Insurance § 2 (W. Freedman 5th ed. 1952).7 9 The significance of underwriting or spreading of risk as an indispensable characteristic of insurance was recognized by this Court in SEC v. Variable Annuity Life Ins. Co., 359 U.S. 65, 79 S.Ct. 618, 3 L.Ed.2d 640. That case involved several corporations, representing themselves as "life insurance" companies, that offered variable annuity contracts for sale in interstate commerce. The companies were regulated by the insurance commissioners of several States. Purchasers of the contracts were not entitled to any fixed return, but only to a pro rata participation in the investment portfolios of the companies. Thus a policyholder could receive substantial sums if investment decisions were successful, but very little if they were not. One of the questions presented was whether these variable annuity contracts were the "business of insurance" under § 2(b) of the McCarran-Ferguson Act.8 The Court held that the annuity contracts were not insurance, even though they were regulated as such under state law and involved actuarial prognostications of mortality. Central to the Court's holding was the premise that "the concept of 'insurance' involves some investment risk-taking on the part of the company." 359 U.S., at 71, 79 S.Ct., at 622. Since the variable annuity contracts offered no guarantee of fixed income, they placed all the investment risk on the annuitant and none on the company. Ibid. The Court concluded, therefore, that the annuities involved "no true underwriting of risks, the one earmark of insurance as it has commonly been conceived of in popular understanding and usage." Id., at 73, 79 S.Ct., at 623 (footnote omitted). Cf. German Alliance Ins. Co. v. Lewis, 233 U.S. 389, 412, 34 S.Ct. 612, 619, 58 L.Ed. 1011 ("The effect of insurance indeed it has been said to be its fundamental object—is to distribute the loss over as wide an area as possible"). 10 The petitioners do not really dispute that the underwriting or spreading of risk is a critical determinant in identifying insurance. Rather they argue that the Pharmacy Agreements do involve the underwriting of risks. As they state in their brief: 11 "In Securities and Exchange Commission v. Variable Annuity Life Insurance Co., 359 U.S. 65, 73, 79 S.Ct. 618, 623, 3 L.Ed.2d 640 (1959), the 'earmark' of insurance was described as the 'underwriting of risks' in exchange for a premium. Here the risk insured against is the possibility that, during the term of the policy, the insured may suffer a financial loss arising from the purchase of prescription drugs, or that he may be financially unable to purchase such drugs. In consideration of the premium, Blue Shield assumes this risk by agreeing with its insureds to contract with Participating Pharmacies to furnish the needed drugs and to reimburse the Pharmacies for each prescription filled for the insured. In short, each of the fundamental elements of insurance is present here—the payment of a premium in exchange for a promise to indemnify the insured against losses upon the happening of a specified contingency." 12 The fallacy of the petitioners' position is that they confuse the obligations of Blue Shield under its insurance policies, which insure against the risk that policyholders will be unable to pay for prescription drugs during the period of coverage, and the agreements between Blue Shield and the participating pharmacies, which serve only to minimize the costs Blue Shield incurs in fulfilling its underwriting obligations.9 The benefit promised to Blue Shield policyholders is that their premiums will cover the cost of prescription drugs except for a $2 charge for each prescription.10 So long as that promise is kept, policyholders are basically unconcerned with arrangements made between Blue Shield and participating pharmacies.11 13 The Pharmacy Agreements thus do not involve any underwriting or spreading of risk, but are merely arrangements for the purchase of goods and services by Blue Shield. By agreeing with pharmacies on the maximum prices it will pay for drugs, Blue Shield effectively reduces the total amount it must pay to its policyholders. The Agreements thus enable Blue Shield to minimize costs and maximize profits. Such cost-savings arrangements may well be sound business practice, and may well inure ultimately to the benefit of policyholders in the form of lower premiums, but they are not the "business of insurance."12 14 The Pharmacy Agreements are thus legally indistinguishable from countless other business arrangements that may be made by insurance companies to keep their costs low and thereby also keep low the level of premiums charged to their policyholders. Suppose, for example, that an insurance company entered into a contract with a large retail drug chain whereby its policyholders could obtain drugs under their policies only from stores operated by this chain. The justification for such an agreement would be administrative and bulk-purchase savings resulting from obtaining all of the company's drug needs from a single dealer. Even though these cost savings might ultimately be reflected in lower premiums to policyholders, would such a contract be the "business of insurance"? Or suppose that the insurance company should decide to acquire the chain of drug stores in order to lower still further its costs of meeting its obligations to its policyholders. Such an acquisition would surely not be the "business of insurance." SEC v. National Securities, Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668.13 C 15 Another commonly understood aspect of the business of insurance relates to the contract between the insurer and the insured. In enacting the McCarran-Ferguson Act Congress was concerned with: 16 "The relationship between insurer and insured, the type of policy which could be issued, its reliability, interpretation, and enforcement—these were the core of the 'business of insurance.' Undoubtedly, other activities of insurance companies relate so closely to their status as reliable insurers that they too must be placed in the same class. But whatever the exact scope of the statutory term, it is clear where the focus was—it was on the relationship between the insurance company and the policyholder." SEC v. National Securities, Inc., supra, at 460, 89 S.Ct., at 568. 17 The Pharmacy Agreements are not "between insurer and insured." They are separate contractual arrangements between Blue Shield and pharmacies engaged in the sale and distribution of goods and services other than insurance. 18 The petitioners argue that nonetheless the Pharmacy Agreements so closely affect the "reliability, interpretation, and enforcement" of the insurance contract and "relate so closely to their status as reliable insurers" as to fall within the exempted area.14 This argument, however, proves too much. 19 At the most, the petitioners have demonstrated that the Pharmacy Agreements result in cost savings to Blue Shield which may be reflected in lower premiums if the cost savings are passed on to policyholders. But, in that sense, every business decision made by an insurance company has some impact on its reliability, its ratemaking, and its status as a reliable insurer. The manager of an insurance company is no different from the manager of any enterprise with the responsibility to minimize costs and maximize profits. If terms such as "reliability" and "status as a reliable insurer" were to be interpreted in the broad sense urged by the petitioners, almost every business decision of an insurance company could be included in the "business of insurance." Such a result would be plainly contrary to the statutory language, which exempts the "business of insurance" and not the "business of insurance companies." III A. 20 The conclusion that the Pharmacy Agreements are not the "business of insurance" is fully confirmed by the legislative history of the McCarran-Ferguson Act. The law was enacted in 1945 in response to this Court's decision in United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440. The indictment in that case charged that the defendants had conspired to fix insurance rates and commissions, and had conspired to boycott and coerce noncooperating insurers, agents, and insureds. In the District Court the defendants had successfully demurred to the indictment on the ground that the insurance industry was not a part of interstate commerce subject to regulation under the Commerce Clause.15 On direct appeal, this Court reversed the judgment, holding that the business of insurance is interstate commerce, and that the Congress which enacted the Sherman Act had not intended to exempt the insurance industry from its coverage. B 21 The primary concern of Congress in the wake of that decision was in enacting legislation that would ensure that the States would continue to have the ability to tax and regulate the business of insurance.16 This concern is reflected in §§ 1 and 2(a) of the Act,17 neither of which is involved in this case. A secondary concern was the applicability of the antitrust laws to the insurance industry.18 Months before this Court's decision in South-Eastern Underwriters was announced, proposed legislation to totally exempt the insurance industry from the Sherman and Clayton Acts had been introduced in Congress.19 Less than three weeks after the actual decision, the House of Representatives passed a bill which would also have provided the insurance industry with a blanket exemption from the antitrust laws, thus restoring the state of law that had existed before the decision in South-Eastern Underwriters.20 22 Congress, however, rejected this approach.21 Instead of a total exemption, Congress provided in § 2(b) that the antitrust laws "shall be applicable" unless the activities of insurance companies are the business of insurance and regulated by state law. Moreover, under § 3(b) the Sherman Act was made applicable in any event to acts of boycott, coercion, or intimidation. To allow the States time to adjust to the applicability of the antitrust laws to the insurance industry, Congress imposed a 3-year moratorium.22 After the expiration of the moratorium on July 1, 1948, however, Congress clearly provided that the antitrust laws would be applicable to the business of insurance "to the extent that such business is not regulated by State law."23 23 By making the antitrust laws applicable to the insurance industry except as to conduct that is the business of insurance, regulated by state law, and not a boycott, Congress did not intend to and did not overrule the South-Eastern Underwriters case.24 While the power of the States to tax and regulate insurance companies was reaffirmed, the McCarran-Ferguson Act also established that the insurance industry would no longer have a blanket exemption from the antitrust laws. It is true that § 2(b) of the Act does create a partial exemption from those laws. Perhaps more significantly, however, that section, and the Act as a whole, embody a legislative rejection of the concept that the insurance industry is outside the scope of the antitrust laws—a concept that had prevailed before the South-Eastern Underwriters decision. C 24 References to the meaning of the "business of insurance" in the legislative history of the McCarran-Ferguson Act strongly suggest that Congress understood the business of insurance to be the underwriting and spreading of risk. Thus, one of the early House Reports stated: "The theory of insurance is the distribution of risk according to hazard, experience, and the laws of averages. These factors are not within the control of insuring companies in the sense that the producer or manufacturer may control cost factors." H.R.Rep.No.873, 78th Cong., 1st Sess., 8-9 (1943).25 See also S.Rep.No.1112, 78th Cong., 2d Sess., 6 (1944); 90 Cong.Rec. 6526 (1944) (remarks of Rep. Hancock). 25 Because of the widespread view that it is very difficult to underwrite risks in an informed and responsible way without intra-industry cooperation, the primary concern of both representatives of the insurance industry and the Congress was that cooperative ratemaking efforts be exempt from the antitrust laws. The passage of the McCarran-Ferguson Act was preceded by the introduction in the Senate Committee of a report and a bill submitted by the National Association of Insurance Commissioners on November 16, 1944.26 The views of the NAIC are particularly significant, because the Act ultimately passed was based in large part on the NAIC bill.27 The report emphasized that the concern of the insurance commissioners was that smaller enterprises and insurers other than life insurance companies were unable to underwrite risks accurately, and it therefore concluded: 26 "For these and other reasons this subcommittee believes it would be a mistake to permit or require the unrestricted competition contemplated by the antitrust laws to apply to the insurance business. To prohibit com bined efforts for statistical and rate-making purposes would be a backward step in the development of a progressive business. We do not regard it as necessary to labor this point any further because Congress itself recently recognized the necessity for concert of action in the collection of statistical data and rate making when it enacted the District of Columbia Fire Insurance Rating Act." Id., at A4405 (emphasis added). 27 The bill proposed by the NAIC enumerated seven specific practices to which the Sherman Act was not to apply.28 Each of the specific practices involved intra-industry cooperative or concerted activities. None involved contractual arrangements that insurance companies might make with providers of goods or services to reduce the costs to the companies of meeting their underwriting obligations to their policyholders.29 28 The floor debates also focused simply on whether cooperative ratemaking should be exempt. Thus, Senator Ferguson, in explaining the purpose of the bill, stated: 29 "This bill would permit—and I think it is fair to say that it is intended to permit—rating bureaus, because in the last session we passed a bill for the District of Columbia allowing rating. What we saw as wrong was the fixing of rates without statutory authority in the States; but we believe that State rights should permit a State to say that it believes in a rating bureau. I think the insurance companies have convinced many members of the legislature that we cannot have open competition in fixing rates on insurance. If we do, we shall have chaos. There will be failures, and failures always follow losses." 91 Cong.Rec. 1481 (1945). 30 The consistent theme of the remarks of other Senators also indicated a primary concern that cooperative ratemaking would be protected from the antitrust laws. Id., at 1444 and 1485 (remarks of Sen. O'Mahoney); 485 (remarks of Sen. Taft).30 President Roosevelt, in signing the bill, also emphasized that the bill would allow cooperative rate regulation. He stated that "Congress did not intend to permit private rate fixing, which the Antitrust Act forbids, but was willing to permit actual regulation of rates by affirmative action of the States." S. Rosenman, The Public Papers and Addresses of Franklin D. Roosevelt, 1944-45 Vol., p. 587 (1950).31 There is not the slightest suggestion in the legislative history that Congress in any way contemplated that arrangements such as the Pharmacy Agreements in this case, which involve the mass purchase of goods and services from entities outside the insurance industry, are the "business of insurance."32 D 31 At the time of the enactment of the McCarran-Ferguson Act, corporations organized for the purpose of providing their members with medical services and hospitalization were not considered to be engaged in the insurance business at all, and thus were not subject to state insurance laws. E. g., Jordan v. Group Health Assn., 71 App.D.C. 38, 107 F.2d 239 (1939); California Physicians' Service v. Garrison, 155 P.2d 885 (Cal.App.1945), aff'd, 28 Cal.2d 790, 172 P.2d 4 (1946); Commissioner of Banking and Insurance v. Community Health Service, 129 N.J.L. 427, 30 A.2d 44 (1943); State ex rel. Fishback v. Universal Service Agency, 87 Wash. 413, 151 P. 768 (1915).33 Similarly, States which regulated prepaid health-service plans at the time the Act was enacted either exempted them from the requirements of the state insurance code or provided that they "shall not be construed as being engaged in the business of insurance" under state law. Rorem, Enabling Legislation for Non-Profit Hospital Service Plans, 6 Law & Contemp.Prob. 528, 534 (1939).34 Since the legislative history makes clear that Congress certainly did not intend the definition of the "business of insurance" to be broader than its commonly understood meaning, the contemporary perception that health-care organizations were not engaged in providing insurance is highly significant in ascertaining congressional intent. 32 The Jordan v. Group Health Assn. case, supra, is illustrative of the contemporary view of health-care plans. Group Health was organized as a nonprofit corporation to provide various medical services and supplies to members who paid a fixed annual premium. To implement the plan, Group Health contracted with physicians, hospitals, and others, to provide medical services. These groups were compensated exclusively by Group Health. By contracting with the various medical groups directly, Group Health was able to obtain services at a lower cost than if each member contracted separately. The plan, therefore, was somewhat similar to the Pharmacy Agreements in this case. The court in Group Health held that this type of arrangement was not insurance: 33 "Whether the contract is one of insurance or of indemnity there must be a risk of loss to which one party may be subjected by contingent or future events and an assumption of it by legally binding arrangement by another. Even the most loosely stated conceptions of insurance . . . require these elements. Hazard is essential and equally so a shifting of its incidence. 34 * * * * * 35 "Although Group Health's activities may be considered in one aspect as creating security against loss from illness or accident, more truly they constitute the quantity purchase of well-rounded, continuous medical service by its members. Group Health is in fact and in function a consumer cooperative. The functions of such an organization are not identical with those of insurance or indemnity companies. The latter are concerned primarily, if not exclusively, with risk . . . . On the other hand, the cooperative is concerned principally with getting service rendered to its members and doing so at lower prices made possible by quantity purchasing and economies in operation." 71 App.D.C., at 44, 46, 107 F.2d, at 245, 247. (Emphasis supplied in part; footnotes omitted.)35 36 Indeed, Blue Cross and Blue Shield organizations themselves have historically taken the position that they are not insurance companies in seeking to avoid state regulation and taxation.36 It is thus difficult to assume that contrary to this historical position and a majority of court decisions, Congress in 1945 understood that advance-payment medicalbenefits plans are the "business of insurance."37 It is next to impossible to assume that Congress could have thought that agreements (even by insurance companies) which provide for the purchase of goods and services from third parties at a set price are within the meaning of that phrase.38 IV 37 It is well settled that exemptions from the antitrust laws are to be narrowly construed. E. g., Abbott Laboratories v. Portland Retail Druggists Assn., Inc., 425 U.S. 1, 96 S.Ct. 1305, 47 L.Ed.2d 537; Connell Construction Co. v. Plumbers & Steamfitters, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418; FMC v. Seatrain Lines, Inc., 411 U.S. 726, 93 S.Ct. 1773, 36 L.Ed.2d 620; United States v. McKesson & Robbins, Inc., 351 U.S. 305, 76 S.Ct. 937, 100 L.Ed. 1209. This doctrine is not limited to implicit exemptions from the antitrust laws, but applies with equal force to express statutory exemptions. E. g., Abbott Laboratories v. Portland Retail Druggists Assn., Inc., supra, at 11-12, 96 S.Ct., at 1313 (the Nonprofit Institutions Act); FMC v. Seatrain Lines, Inc., supra, at 733, 93 S.Ct., at 1778 (§ 15 of the Shipping Act); United States v. McKesson & Robbins, supra, at 316, 76 S.Ct., at 943 (the Miller-Tydings and McGuire Acts). 38 Application of this principle is particularly appropriate in this case because the Pharmacy Agreements involve parties wholly outside the insurance industry. In analogous contexts, the Court has held that an exempt entity forfeits antitrust exemption by acting in concert with nonexempt parties. The Court has held, for example, that an exempt agricultural cooperative under the Capper-Volstead Act loses its exemption if it conspires with nonexempt parties. Case-Swayne Co. v. Sunkist Growers, Inc., 389 U.S. 384, 88 S.Ct. 528, 19 L.Ed.2d 621; United States v. Borden Co., 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181. Similarly, the Court has consistently stated that a union forfeits its exemption from the antitrust laws if it agrees with one set of employers to impose a wage scale on other bargaining units. Ramsey v. Mine Workers, 401 U.S. 302, 313, 91 S.Ct. 658, 665, 28 L.Ed.2d 64; Mine Workers v. Pennington, 381 U.S. 657, 665-666, 85 S.Ct. 1585, 1590-1591, 14 L.Ed.2d 626.39 39 If agreements between an insurer and retail pharmacists are the "business of insurance" because they reduce the insurer's costs, then so are all other agreements insurers may make to keep their costs under control—whether with automobile body repair shops or landlords.40 Such agreements would be exempt from the antitrust laws if Congress had extended the coverage of the McCarran-Ferguson Act to the "business of insurance companies."41 But that is precisely what Congress did not do. 40 For all these reasons, the judgment of the Court of Appeals is 41 Affirmed. 42 Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE Mr. Justice MARSHALL, and Mr. Justice POWELL join, dissenting. 43 The McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U.S.C. §§ 1011-1015, renders the federal antitrust laws inapplicable to the "business of insurance" to the extent such business is regulated by state law and is not subject to the "boycott" exception stated in § 1013(b).1 The single question presented by this case is whether the "business of insurance" includes direct contractual arrangements ("provider agreements") between petitioner Blue Shield and third parties to provide benefits owed to the insurer's policyholders. The Court today holds that it does not. 44 I disagree: Since (a) there is no challenge to the status of Blue Shield's drug-benefits policy as the "business of insurance," I conclude (b) that some provider agreements negotiated to carry out the policy obligations of the insurer to the insured should be considered part of such business, and (c) that the specific Pharmacy Agreements at issue in this case should be included in such part. Before considering this analysis, however, it is necessary to set forth the background of the enactment of the McCarran-Ferguson Act. 45 * SEC v. National Securities, Inc., 393 U.S. 453, 459, 89 S.Ct. 564, 568, 21 L.Ed.2d 668 (1969), recognized that the legislative history of the McCarran-Ferguson Act sheds little light on the meaning of the words "business of insurance." See S.Rep.No.20, 79th Cong., 1st Sess. (1945); H.R.Rep.No.143, 79th Cong., 1st Sess. (1945), U.S.Code Cong.Serv. 1945, p. 670. But while the legislative history is largely silent on the matter,2 it does indicate that Congress deliberately chose to phrase the exemption broadly. Congress had draft bills before it which would have limited the "business of insurance" to a narrow range of specified insurance company practices, but chose instead the more general language which ultimately became law.3 46 The historical background of the statute's enactment, developed by the Court in SEC v. National Securities, Inc., supra, provides the guide to congressional purpose: 47 "The McCarran-Ferguson Act was passed in reaction to this Court's decision in United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944). Prior to that decision, it had been assumed, in the language of the leading case, that '[i]ssuing a policy of insurance is not a transaction of commerce.' Paul v. Virginia, 8 Wall. 168, 183, 19 L.Ed. 357 (1869). Consequently, regulation of insurance transactions was thought to rest exclusively with the States. In South-Eastern Underwriters, this Court held that insurance transactions were subject to federal regulation under the Commerce Clause, and that the antitrust laws, in particular, were applicable to them. Congress reacted quickly . . . [, being] concerned about the inroads the Court's decision might make on the tradition of state regulation of insurance. The McCarran-Ferguson Act was the product of this concern. Its purpose was stated quite clearly in its first section; Congress declared that 'the continued regulation and taxation by the several States of the business of insurance is in the public interest.' 59 Stat. 33 (1945), 15 U.S.C. § 1011. As this Court said shortly afterward, '[o]bviously Congress' purpose was broadly to give support to the existing and future state systems for regulating and taxing the business of insurance.' Prudential Insurance Co. v. Benjamin, 328 U.S. 408, 429, 66 S.Ct. 1142, 1154, 90 L.Ed. 1342 (1946). "The . . . Act was an attempt to turn back the clock, to assure that the activities of insurance companies in dealing with their policyholders would remain subject to state regulation." 393 U.S., at 458-459, 89 S.Ct., at 567. 48 See also St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 538-539, 98 S.Ct. 2923, 2928-2929, 57 L.Ed.2d 932 (1978); 90 Cong.Rec. 6524 (1944) (Cong. Walter) ("[T]he legislation . . . is designed to restore to the status quo the position the insurance business of this Nation occupied before the Supreme Court recently legislated [in South-Eastern Underwriters ]"). 49 Since continuation of state regulation as it existed before South-Eastern was Congress' goal,4 evidence of what States might reasonably have considered to be and regulated as insurance at the time the McCarran-Ferguson Act was passed in 1945 is clearly relevant to our decision. This does not mean that a transaction not viewed as insurance in 1945 cannot be so viewed today. 50 "We realize that . . . insurance is an evolving institution. Common knowledge tells us that the forms have greatly changed even in a generation. And we would not undertake to freeze the concep[t] of 'insurance' . . . into the mold [it] fitted when these Federal Acts were passed." SEC v. Variable Annuity Life Ins. Co., 359 U.S. 65, 71, 79 S.Ct. 618, 622, 3 L.Ed.2d 640 (1959). 51 It is thus logical to suppose that if elements common to the ordinary understanding of "insurance" are present, new forms of the business should constitute the "business of insurance" for purposes of the McCarran-Ferguson Act. The determination of the scope of the Act, therefore, involves both an analysis of the proximity between the challenged transactions and those well recognized as elements of "insurance," and an examination of the historical setting of the Act. On both counts, Blue Shield's Pharmacy Agreements constitute the "business of insurance." II 52 I start with common ground. Neither the Court, ante, at 230 n. 37, nor the parties challenge the fact that the drug-benefits policy offered by Blue Shield to its policyholders—as distinguished from the contract between Blue Shield and the pharmacies—is the "business of insurance." Whatever the merits of scholastic argument over the technical definition of "insurance," the policy both transfers and distributes risk. The policyholder pays a sum certain—the premium—against the risk of the uncertain contingency of illness, and if the company has calculated correctly, the premiums of those who do not fall ill pay the costs of benefits above the premiums of those who do. See R. Mehr & E. Cammack, Principles of Insurance 31-32 (6th ed. 1976). An important difference between Blue Shield's policy and other forms of health insurance is that Blue Shield "pays" the policyholder in goods and services (drugs and their dispensation), rather than in cash. Since we will not "freeze the concep[t] of 'insurance' . . . into the mold it fitted" when McCarran-Ferguson was passed, this difference cannot be a reason for holding that the drug-benefits policy falls outside the "business of insurance," even if our inquiry into the understandings of what constituted "insurance" in the 1930's and 1940's were to suggest that a contrary view prevailed at that time.5 53 Fortunately, logic and history yield the same result. It is true that the first health insurance policies provided only cash indemnities. However, although policies that specifically provided drug benefits were not available during the 1930's and 1940's, analogous policies providing hospital and medical services rather than cash—were available. 54 The hospital service-benefit concept originated in Texas in 1929; medical services were first offered in 1939. R. Eilers, Regulation of Blue Cross and Blue Shield Plans 10, 15 (1963) (hereinafter Eilers). In 1940, 4,500,000 people in 60 communities were covered by Blue Cross or related hospital-benefits plans. C. Rorem, Non-Profit Hospital Service Plans 1-2 (1940) (hereinafter Rorem I). During the 1940's, health insurance became a subject of collective bargaining, with unions demanding the service-benefit approach of Blue Cross and Blue Shield. S. Law, Blue Cross 11 (1974) (hereinafter Law). By 1945, the year the McCarran-Ferguson Act was enacted, over 20 million people were enrolled in service-benefit programs, with service-benefit plans comprising 61% of the total hospitalization insurance market. See Hearings before the Senate Committee on Education and Labor, A National Health Program, 79th Cong., 2d Sess., pt. 1, p. 173 (1946); Eilers 19; Law 11. 55 Moreover, regulation of the service-benefit plans was a part of the system of state regulation of insurance that the McCarran-Ferguson Act was designed to preserve. Led by New York in 1934, 24 States passed enabling Acts by 1939 which, while relieving the plans of certain reserve requirements and tax obligations, specifically subjected service-benefit plans to the supervision and control of state departments of insurance.6 See Rorem, Enabling Legislation for Non-Profit Hospital Service Plans, 6 Law & Contemp.Prob. 528, 531, 534 (1939) (hereinafter Rorem II); N. Sinai, O. Anderson, & M. Dollar, Health Insurance in the United States 48-49 (1946) (hereinafter Sinai); Comment, Group Health Plans: Some Legal and Economic Aspects, 53 Yale L.J. 162, 174 (1943). Another 16 States apparently limited the issuance of hospitalization insurance to stock and mutual insurance companies. Nine acted on the premise that the plans were not "insurance" and authorized operation under general corporation laws, exempt from reserve requirements. Rorem II, p. 532. By the time the McCarran-Ferguson Act was passed, 35 States had enabling legislation.7 During this period, the National Association of Insurance Commissioners (NAIC), the organization of state insurance directors which played a major role in drafting the McCarran-Ferguson Act,8 was also drafting model state enabling legislation to govern service-benefit health plans. Proceedings of the NAIC, 75th Sess., 226 (1944); id., 76th Sess. 250, (1945).9 56 Thus, when the McCarran-Ferguson Act became law, service-benefit plans similar to the Blue Shield plan at issue here were a widespread and well-recognized form of insurance, subject to regulation in most of the States. Congress itself treated these important programs as insurance. In 1939, Congress adopted an enabling Act incorporating a hospitalization-benefits plan in the District of Columbia, with supervisory authority placed in the hands of the Superintendent of Insurance. See H.R. 6266, 76th Cong., 1st Sess. (1939); H.R.Rep.No.1247, 76th Cong., 1st Sess. (1939); 84 Cong.Rec. 11224 (1939). And in hearings held the year after passage of the McCarran-Ferguson Act, the same Congress that approved that Act debated Blue Shield-type programs as alternatives to national health insurance, with participating Congressmen frequently referring to them as "insurance." Hearings before the Senate Committee on Education and Labor, A National Health Program, 79th Cong., 2d Sess., pt. 1, pp. 55, 83, 108, 172, pt. 2, p. 558 (1946).10 The status of service-benefit policies as "insurance," both logically and historically, is therefore sufficiently established to make that the first premise in an analysis of the status of the Pharmacy Agreements at issue in this case. III 57 The next question is whether at least some contracts with third parties to procure delivery of benefits to Blue Shield's insureds would also constitute the "business of insurance." Such contracts, like those between Blue Shield and the druggists in this case, are known as "provider agreements." The Court, adopting the view of the Solicitor General, today holds that no provider agreements can be considered part of the "business of insurance."11 It contends that the "underwriting or spreading of risk [is] an indispensable characteristic of insurance," ante, at 212,12 and that "[a]nother commonly understood aspect of the business of insurance relates to the contract between the insurer and the insured." Ante, at 215. Because provider agreements neither themselves spread risk, nor involve transactions between insurers and insureds, the Court excludes them from the "business of insurance." 58 The argument fails in light of this Court's prior decisions and the legislative history of the Act. The Court has held, for example, FTC v. National Casualty Co., 357 U.S. 560, 78 S.Ct. 1260, 2 L.Ed.2d 1540 (1958), that the advertising of insurance, a unilateral act which does not involve underwriting, is within the scope of the McCarran-Ferguson Act. And the legislative history makes it abundantly clear that numerous horizontal agreements between insurance companies which do not technically involve the underwriting of risk were regarded by Congress as within the scope of the Act's exemption for the "business of insurance." For example, rate agreements among insurers, a conspicuous congressional illustration, see, e. g., 91 Cong.Rec. 1481, 1484 (1945) (remarks of Sens. Pepper and Ferguson), and the subject of the South-Eastern Underwriters case, see SEC v. National Securities, Inc., 393 U.S., at 460, 89 S.Ct., at 568, do not themselves spread risk. Indeed, the Court apparently concedes that arrangements among insurance companies respecting premiums and benefits would constitute the "business of insurance," despite their failure to fit within its formula. Ante, at 221 and 224-225, n. 32. 59 But the Court's attempt to limit its concession to horizontal transactions still conflicts with the legislative history. Compelling evidence is the fact that Congress actually rejected a proposed bill to limit the exemption to agreements between insurance companies. S. 12, 79th Cong., 1st Sess. (1945). See n. 3, supra. Moreover, vertical relationships between insurance companies and independent sales agencies were a subject of the indictment in United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 535, 64 S.Ct. 1162, 1164, 88 L.Ed. 1440 (1944), were the object of discussion in the House, 90 Cong.Rec. 6538 (1944) (remarks of Cong. Celler) and were expressly included as part of the "business of insurance" in an early draft of the Act, id., at A4406 (NAIC bill, § 4(b)(5)). Again, the Court concedes that such transactions, between insurers and agents, might fall within the "business of insurance," despite the inconsistency with the Court's own theory. Ante, at 224-225 n. 32.13 60 The Court's limitation also ignores the significance of pervasive state insurance regulation—prevailing when the Act was passed—of hospitalization-benefits plans whose "distinctive feature," Rorem I, p. 64; Proceedings of the NAIC, 75th Sess., 228 (1944), was the provider contract with the participating hospital to provide service when needed. The year prior to adoption of the Act the NAIC emphasized the relationship between provider agreements and service-benefit policies: 61 "A hospital service plan is designed to provide service rather than to indemnify and this can only be guaranteed through contractual arrangements between plans and hospitals." Ibid. 62 The Association also proposed, in the year McCarran-Ferguson passed, a model state enabling Act requiring "full approval of . . . contracts with hospitals . . . by the insurance commissioner." Proceedings of the NAIC, 76th Sess., 250 (1945). That proposal reflected well the actual contents of existing state enabling Acts which armed insurance commissioners with considerable authority to regulate provider agreements.14 Congress itself authorized the service-benefit plan it incorporated in the District of Columbia "to enter into contracts with hospitals for the care and treatment of [its subscribers]." H.R. 6266, 76th Cong., 1st Sess. (1939). In light of Congress' objective through the McCarran-Ferguson Act to insure the continuation of existing state regulation, the conclusion that at least some provider agreements were intended to be within the "business of insurance" is inescapable. 63 Logic compels the same conclusion. Some kind of provider agreement becomes a necessity if a service-benefits insurer is to meet its obligations to the insureds. The policy before us in this case, for example, promises payment of benefits in drugs. Thus, some arrangement must be made to provide those drugs for subscribers.15 Such an arrangement obtains the very benefits promised in the policy; it does not simply relate to the general operation of the company. A provider contract in a service-benefit plan, therefore, is critical to "the type of policy which could be issued" as well as to its "reliability" and "enforcement." It thus comes within the terms of SEC v. National Securities, Inc., 393 U.S., at 460, 89 S.Ct., at 568. That case explained that the "business of insurance" involves not only the "relationship between insurer and insured," but also "other activities of insurance companies [that] relate so closely to their status as reliable insurers that they too must be placed in the same class." Thus, "[s]tatutes aimed at protecting or regulating . . . [the insurer/insured] relationship, directly or indirectly, are laws regulating the 'business of insurance.' " Ibid. (emphasis added). 64 The Congress that passed McCarran-Ferguson was composed of neither insurance experts nor dictionary editors. Rather than use the technical term "underwriting" to express its meaning, Congress chose "the business of insurance," a common-sense term connoting not only risk underwriting, but contracts closely related thereto.16 Since Congress knew of service-benefit policies, and viewed them as insurance, it would strain common sense to suppose Congress viewed contracts necessary to effectuate those policies' commitments as being outside the business it sought to exempt from the anti-trust laws. IV 65 The remaining question is whether the provider agreement in this case constitutes the "business of insurance." Respondents contend that even if some contract between Blue Shield and the pharmacies is necessary, this one is not. Under the contract at issue, the druggist agrees to dispense drugs to Blue Shield's insureds for a $2 payment, and Blue Shield agrees to reimburse the druggist for the acquisition cost of each drug so dispensed. The pharmacy is thus limited to a $2 "markup." With support from the Court of Appeals, respondents argue that only the first half of the bargain is necessary for Blue Shield to fulfill its policy obligations. Those are fulfilled when Blue Shield binds the pharmacy to dispense the requested drug for $2. The second half of the agreement, the amount Blue Shield reimburses the druggist, is assertedly irrelevant to the policyholder. As an alternative to the existing plan, the respondents and the Court of Appeals suggest that Blue Shield could simply pay the pharmacist his usual charge (minus the $2 paid by the policyholder). The present plan, which limits reimbursement to acquisition cost and freezes the markup at $2, is said to set a "fixed" price. From this premise respondents argue that such fixed-price plans are "anticompetitive," and therefore not the "business of insurance." 66 Respondents' argument is directly contradicted by history. The service-benefit plans available when the McCarran-Ferguson Act was passed actually "fixed" more of the payment to their participating providers than does the plan here, which "fixes" only the markup. Those early plans usually paid established and equal amounts to their participating hospitals, rather than paying whatever each hospital charged. Rorem I, p. 64. Moreover, under the typical state enabling Act, those payments were subject to the approval of the state department of insurance.17 The 1937 Pennsylvania statute, for example, provided that "all rates of payments to hospitals made by such [service-benefit plan] corporations . . . and any and all contracts entered into by any such corporation with any hospital, shall, at all times, be subject to the prior approval of the Insurance Department." 1937 Pa.Laws No. 378. Therefore, as insurer/provider fee agreements were part of the system of state regulation which the McCarran-Ferguson Act sought to preserve, there is no historical reason to exclude Blue Shield's Pharmacy Agreements from the ambit of the exemption; there is instead a good historical reason for including them. 67 Nor does respondents' claim that the Pharmacy Agreements are "anticompetitive" exclude them from constituting the "business of insurance." The determination of whether Blue Shield's Pharmacy Agreements actually involve antitrust violations or are otherwise anticompetitive has been held in abeyance, pending final decision as to whether the agreements fall within the scope of the McCarran-Ferguson Act. But even if the agreements were anticompetitive, that alone could not be the basis for excluding them from the "business of insurance." An antitrust exemption by its very nature must protect some transactions that are anticompetitive; an exemption that is extinguished by a finding that challenged activity violates the antitrust laws is no exemption at all. 68 While this reason for excluding the Pharmacy Agreements from the circle of exempt provider agreements is unconvincing, there are substantial reasons, in addition to history, for including them within that circle. First, it is clear that the contractual arrangement utilized by Blue Shield affects its costs, and thus affects both the setting of rates and the insurer's reliability. This is definitely a factor relevant to the determination of whether a transaction is within the "business of insurance." See SEC v. National Securities, Inc., 393 U.S., at 460, 89 S.Ct., at 568. See also Proctor v. State Farm Mutual Automobile Ins. Co., 182 U.S.App.D.C. 264, 561 F.2d 262 (1977). True, that factor alone is not determinative, for as argued by the Court, innumerable agreements, including the lease on the insurance company's offices, affect cost. This contract, however, has more than a mere incidental connection to the policy and premium. It is a direct arrangement to provide the very goods and services whose purchase is the risk assumed in the insurance policy. It is therefore integral to the insurer's rate-setting process, as the correlation between rates and drug prices in a drug-benefits policy is necessarily high. Moreover, the ability of state insurance commissioners to regulate rates, an important concern of the Act, is measurably enhanced by their ability to control the formulas by which insurers reimburse providers.18 The same is true of state efforts to ensure that plans are financially reliable. See Travelers Ins. Co. v. Blue Cross of Western Pennsylvania, 481 F.2d 80, 83 n. 9 (CA3 1973) (quoting the Pennsylvania Insurance Commissioner). This close nexus between the Pharmacy Agreements and both the rates and fiscal reliability of Blue Shield's plan speaks strongly for their inclusion within the "business of insurance." See generally Proctor v. State Farm Mutual Automobile Ins. Co., supra, 182 U.S.App.D.C., at 271-272, 561 F.2d, at 269-270. 69 Another reason, in addition to this nexus to basic insurance elements, also supports the conclusion that fixed-price provider agreements are the "business of insurance." Such agreements themselves perform an important insurance function. It may be true, as the Court contends, that conventional notions of insurance focus on the underwriting of risk. But they also include efforts to reduce the unpredictable aspects of the risks assumed. Traditional plans achieve this end by setting ceilings on cash payments or utilizing large deductibles. R. Mehr & E. Cammack, Principles of Insurance 222 (6th ed. 1976). Even if the insurer cannot know how often a policyholder might become ill, it can know the extent of its exposure in the event of illness. The actuarial uncertainty, therefore, is greatly reduced. A fixed-price provider agreement attempts to reach the same result by contracting in advance for a price, rather than agreeing to pay as the market fluctuates. The agreement on price at least minimizes the variance of the "payoff" variable, even if the probability of its occurrence remains an unknown. Indeed, if examined carefully, this function comes within the latter half of the definition of "underwriting" offered by the Solicitor General: "spread[ing] risk more widely or reduc[ing] the role of chance events." See n. 12, supra. Of course, the Pharmacy Agreements in this case do not totally control "the role of chance" in drug prices since acquisition costs may fluctuate even if "markup" is fixed, but they are at least an attempt to reduce the role of chance to manageable proportions.19 70 Moreover, a service-benefit plan which "pay[s] the cost . . . whatever it might be," as hypothesized by the Court of Appeals, 556 F.2d, at 1381, would run grave risks of bankruptcy. Since it would expose the insurer to unknown liability, it would measurably increase the probability that an incorrect assessment of exposure would occur. This could lead to a failure to cover actual losses with premiums. Respondents argue that this fiscal-reliability problem could be solved by placing a dollar limit on benefits. But such a plan would be almost indistinguishable from a cash-indemnity policy. It would not be the full-service-regardless-of-price plan for which the policyholders bargained.20 The Pharmacy Agreements are thus "other activities of insurance companies relate[d] so closely to their status as reliable insurers that they too must be placed in the same class." SEC v. National Securities, Inc., supra, at 460, 89 S.Ct., at 568. V 71 The process of deciding what is and is not the "business of insurance" is inherently a case-by-case problem. It is true that the conclusion advocated here carries with it line-drawing problems. That is necessarily so once the provider-agreement line is crossed by holding some to be within the "business." But that is a line which history and logic compel me to cross. I would hold that the concept of a provider agreement for benefits promised in the policy is within the "business of insurance" because some form of provider agreement is necessary to fulfill the obligations of a service-benefit policy. I would hold that these provider agreements, Blue Shield's Pharmacy Agreements, are protected because they (1) directly obtain the very benefits promised in the policy21 and therefore directly affect rates, cost, and insurer reliability, and (2) themselves constitute a critical element of risk "prediction."22 The conclusion that these kinds of agreements are the "business of insurance" is that reached by every Court of Appeals except the Court of Appeals in this case.23 72 I would not suggest, however, that all provider agreements come within the McCarran-Ferguson Act proviso. Given the facts found by the District Court upon summary judgment, this is not a case where the petitioner pharmacies themselves conspired to exclude others from the market, and either pressured Blue Shield to go along, or were voluntarily joined by the insurer. See also Government Brief 13 n. 6. Such an agreement among pharmacies, itself neither necessary nor related to the insurer's effort to satisfy its obligations to its policyholders, would be outside the "business of insurance." An insurance company cannot immunize an illegal conspiracy by joining it. Cf. Parker v. Brown, 317 U.S. 341, 351-352, 63 S.Ct. 307, 313-314, 87 L.Ed. 315 (1943). Moreover, since in this case the Blue Shield plan was offered to all San Antonio pharmacies and was in fact agreed to by at least 12, I am not called upon to decide whether an exclusive arrangement with a single provider would be so tenuously related to providing a policyholder benefits as to be beyond the exemption's protection. See generally Proctor v. State Farm Mutual Automobile Ins. Co., 182 U.S.App.D.C., at 270 n.10, 561 F.2d, at 268 n. 10.24 73 Finally, the conclusion that Blue Shield's Pharmacy Agreements should be held within the "business of insurance"25 does not alone establish whether the agreements enjoy an exemption from the antitrust laws. To be entitled to an exemption, petitioners still would have to demonstrate that the transactions are in fact truly regulated by the State, 15 U.S.C. § 1012(b), and that they do not fall within the "boycott" exception of 15 U.S.C. § 1013(b). The District Court held for petitioners on both issues. Neither issue was reached by the Court of Appeals, however, in light of its holding that the contracts were not the "business of insurance." Accordingly, I would reverse the judgment of the Court of Appeals and remand the case for further proceedings.26 1 The Act provides in relevant part: "Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States. "Sec. 2.(a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business. "(b) No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended, shall be applicable to the business of insurance to the extent that such business is not regulated by State law. "Sec. 3.(a) Until June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, . . . and the Act of June 19, 1936, known as the Robinson-Patman Anti-discrimination Act, shall not apply to the business of insurance or to acts in the conduct thereof. "(b) Nothing contained in this Act shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation." 59 Stat. 33-34, as amended, 61 Stat. 448. 2 The position of the Fifth Circuit is in conflict with that of the Third, Fourth, and District of Columbia Circuits. See Frankford Hospital v. Blue Cross of Greater Philadelphia, 554 F.2d 1253 (CA3 1977); Anderson v. Medical Service of District of Columbia, 551 F.2d 304 (CA4 1977); Proctor v. State Farm Mutual Automobile Ins. Co., 182 U.S.App.D.C. 264, 561 F.2d 262 (1977). 3 The amicus curiae brief of the United States provides a useful illustration of the operation of the Pharmacy Agreement: "Suppose the usual and customary retail price for a quantity of Drug X charged both by 'participating' Pharmacy A and 'non-participating' Pharmacy B is $10.00, and the wholesale price (or acquisition cost) to both is $8.00. If an insured buys Drug X from Pharmacy A, the insured pays $2.00. Pharmacy A receives $2.00 from the insured and $8.00 from Blue Shield, or $10.00 total. If an insured buys Drug X from Pharmacy B, the insured pays Pharmacy B $10.00, and receives $6.00 (75 percent of the difference between the retail price and $2.00) from Blue Shield. While Pharmacy B receives the same as Pharmacy A, the insured must pay $4.00 for the drug and also must take steps to obtain reimbursement. "If the pharmacy's acquisition cost for the drug is $5.00 rather than $8.00 the situations of Pharmacy B and the insured are unchanged. But now Pharmacy A will receive only $5.00 from Blue Shield, for a total of $7.00." 4 Even if they are the "business of insurance," the Agreements are exempt from the antitrust laws only if they are also "regulated by State law" within the meaning of § 2(b) and not "boycotts" or other conduct described by § 3(b). See n. 1, supra. See also St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 98 S.Ct. 2923, 57 L.Ed.2d 932. 5 It is axiomatic that conduct which is not exempt from the antitrust laws may nevertheless be perfectly legal. The United States in its amicus brief urging affirmance has taken the position that the Pharmacy Agreements probably do not violate the antitrust laws, though recognizing that that issue is not presented here. 6 The issue in that case was the meaning of the "boycott" exception in § 3(b) of the Act. The issue here, the meaning of the "business of insurance" exemption in § 2(b) of the Act, was not before the Court. 7 Webster's New International Dictionary of the English Language 1289 (unabr.2d ed. 1958) defines insurance as: "Act of insuring, or assuring, against loss or damage by a contingent event; a contract whereby, for a stipulated consideration, called a premium, one party undertakes to indemnify or guarantee another against loss by a certain specified contingency or peril, called a risk, the contract being set forth in a document called the policy . . .." 8 The issue in SEC v. Variable Annuity Life Ins. Co. was whether the variable annuity contracts were subject to regulation under the Securities Act of 1933 and the Investment Company Act of 1940. The Court held that the contracts were subject to such regulation as securities since they were not "insurance" or "annuity" policies specifically exempt from the Securities Act, and because they were not the "business of insurance" within the meaning of the McCarran-Ferguson Act. 9 It is true that some type of provider agreement is necessary for a service benefit plan to exist. But it does not follow that because an agreement is necessary to provide insurance, it is also the "business of insurance." Assume, for example, that an indemnity insurer must have a line of credit or other commercial arrangement with a bank in order to pay off monetary claims. Despite the fact that the line of credit is "necessary" for the insurer to fulfill its obligations, it is nevertheless not the "business of insurance." 10 Thus, the benefit promised to Blue Shield policyholders under the policy is that they "shall be required to pay no more than the drug deductible for each of such covered drugs." 11 As the Court of Appeals stated: "Blue Shield's policyholders are basically unconcerned with the contract between the insurer and the Participating Pharmacy. They are obligated to pay a Participating Pharmacy two dollars ($2.00) for a prescription regardless of the presence or absence of a price fixing arrangement. Thus, by minimizing costs and maximizing profits, the Participating Pharmacy Agreements inure principally to the benefit of Blue Shield." 556 F.2d 1375, 1381. 12 As the United States points out in its amicus brief, there is an important distinction between risk underwriting and risk reduction. By reducing the total amount it must pay to policyholders, an insurer reduces its liability and therefore its risk. But unless there is some element of spreading risk more widely, there is no underwriting of risk. 13 In National Securities, the Arizona Director of Insurance approved, pursuant to statute, a merger between two insurance companies. This Court held, however, that the Arizona statute was not enacted for the purpose of regulating the "business of insurance." 393 U.S., at 460, 89 S.Ct., at 568. If a merger between two insurance companies is not the "business of insurance," then an acquisition by an insurer of a manufacturer or a retail chain, although conceptually indistinguishable from the Pharmacy Agreements in this case, is also not the "business of insurance." 14 The petitioners argue that the absence of the Pharmacy Agreements "which permit the insured to obtain drugs on the terms and for the amounts stated in the policies would constitute a breach of the contract of insurance." But the benefit Blue Shield provides its policyholders is the assurance that they can obtain drugs in return for a direct maximum payment of $2 for each prescription. The Pharmacy Agreements are separate contractual arrangements between Blue Shield and certain pharmacists fixing the cost Blue Shield will pay for drugs. The wholly separate nature of the two categories of agreements is in no way affected by the fact that the Pharmacy Agreements are indirectly referred to in the insurance policies. 15 Since the leading case of Paul v. Virginia, 8 Wall. 168, 183, 19 L.Ed. 357, it had been understood that "[i]ssuing a policy of insurance is not a transaction of commerce." 16 S.Rep.No.20, 79th Cong., 1st Sess., 2 (1945); H.R.Rep.No.143, 79th Cong., 1st Sess., 2-3 (1945), U.S.Code Cong.Serv.1945, p. 670. The problem was that if insurance was interstate commerce, then the constitutionality of state regulation and taxation would be questionable. As the House Report stated: "Inevitable uncertainties . . . followed the handing down of the decision in the Southeastern Underwriters Association case . . . "[Y]our committee believes there is urgent need for an immediate expression of policy by the Congress with respect to the continued regulation of the business of insurance by the respective States. Already many insurance companies have refused, while others have threatened refusal to comply with State tax laws, as well as with other State regulations, on the ground that to do so, when such laws may subsequently be held unconstitutional in keeping with the precedent-smashing decision in the Southeastern Underwriters case, will subject insurance executives to both civil and criminal actions for misappropriation of company funds." Ibid. (Emphasis added.) 17 See text of statute at n. 1, supra. 18 There is no question that the primary purpose of the McCarran-Ferguson Act was to preserve state regulation of the activities of insurance companies, as it existed before the South-Eastern Underwriters case. The power of the States to regulate and tax insurance companies was threatened after that case, because of its holding that insurance companies are in interstate commerce. The McCarran-Ferguson Act operates to assure that the States are free to regulate insurance companies without fear of Commerce Clause attack. The question in the present case, however, is one under the quite different secondary purpose of the McCarran-Ferguson Act—to give insurance companies only a limited exemption from the antitrust laws. The repeated insistence in the dissenting opinion that the McCarran-Ferguson Act should be read as protecting the right of the States to regulate what they traditionally regulated is thus entirely correct—and entirely irrelevant to the issue now before the Court. See n. 38, infra. For the question here is not whether the McCarran-Ferguson Act made state regulation of these Pharmacy Agreements exempt from attack under the Commerce Clause. It is the quite different question whether the Pharmacy Agreements are exempt from the antitrust laws. In short, the McCarran-Ferguson Act freed the States to continue to regulate and tax the business of insurance companies, in spite of the Commerce Clause. It did not, however, exempt the business of insurance companies from the antitrust laws. It exempted only "the business of insurance." See SEC v. National Securities, Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668. 19 H.R. 3270, 78th Cong., 1st Sess. (1943); S. 1362, 78th Cong., 1st Sess. (1943). These bills would have provided that nothing in the Sherman or Clayton Acts "shall be construed to apply to the business of insurance or to acts in the conduct of that business or in any wise to impair the regulation of that business by the several States." 20 90 Cong.Rec. 6565 (1944). 21 The total exemption bill failed in the Conference Committee because of a fear that it could not pass in the Senate and in any event would be vetoed by the President. 91 Cong.Rec. 1087 (1945) (remarks of Rep. Hancock). Also important was the opposition of the National Association of Insurance Commissioners to a blanket antitrust exemption. 90 Cong.Rec. 8482 (1944). 22 See n. 1, supra. The purpose of the moratorium was to allow the States three years to take steps to regulate the business of insurance. 91 Cong.Rec. 1443 (1945) (remarks of Sen. McCarran). 23 Ibid. (remarks of Sen. Ferguson); McCarran, Federal Control of Insurance: Moratorium Under Public Law 15 Expired July 1, 34 A.B.A.J. 539, 540 (1948). 24 That Congress did not intend to restore the law to what it had been before South-Eastern Underwriters is made dramatically clear in the following exchange between Senator McKellar and Senator Ferguson: "Mr. McKELLAR. As I understand the bill its purpose and effect will be to establish the law as it was supposed to be prior to the rendering of the recent opinion of the Supreme Court of the United States. Is that correct? "Mr. FERGUSON. No." 91 Cong.Rec. 478 (1945). See also id., at 1444 (exchange between Sens. Pepper and McCarran). 25 The recognition by Congress that the ability to control costs was not within the ability of insurance companies is further evidence that the Pharmacy Agreements, which are solely designed to minimize costs, are not insurance. 26 90 Cong.Rec. A4403-4408 (1944). 27 91 Cong.Rec. 483 (1945) (remarks of Sen. O'Mahoney). 28 90 Cong.Rec. A4406 (1944). This specific list of exempted activities was not included in the law ultimately enacted. 29 The dissenting opinion makes the argument that because Congress rejected bills that would have limited the "business of insurance" to a specific list of insurance company practices, Congress intended that the exemption it finally enacted be interpreted "broadly." Precisely the opposite is true. At the time Congress was considering one of the early versions of the Act, H.R. 3270, 78th Cong., 1st Sess. (1943), which would have wholly exempted from the antitrust laws "the business of insurance or . . . acts in the conduct of that business," an amendment was introduced which would have exempted specific activities. 90 Cong.Rec. 6561 (1944). The proponent of the amendment, Representative Anderson, explained that its purpose was to provide broader protection than provided by H.R. 3270: "But I say to this House that some legislation should be passed which asserts the right of the States to control the questions of risks, rates, premiums, commissions, policies, investments, reinsurance, capital requirements, and items of that nature. It is for that purpose I have insisted upon bringing this at this time to the attention of the House. If you pass H.R. 3270 as it now stands and go back home and any of your insurance friends ask you what you did to safeguard the protection of insurance by the State, you must answer them in all truth that all you did was to pass a bill which provided antitrust protection for companies now under indictment." The amendment was defeated. 90 Cong.Rec. 6562 (1944). Thus, Congress rejected an amendment which exempted specific activities of insurance companies (not including anything remotely resembling the Pharmacy Agreements in this case) which was perceived to be broader than H.R. 3270. Since H.R. 3270 was itself broader than the Act as eventually enacted, it necessarily follows that the exemption of the Act is narrower than the bills which would have exempted specific practices. This pattern is consistent with the entire legislative history of the McCarran-Ferguson Act, which was characterized by a continual narrowing of the original blanket exemption. 30 The dissenting opinion states that the "compelling explanation" for the lack of discussion of provider agreements in the legislative history was the congressional concern about fire insurance companies. Post, at 234 n. 2. However, input from all types of insurance companies was sought through the Insurance Commissioners of the various States "because the Commissioners were aware of the chaotic condition which exists at the present time." 91 Cong.Rec. 484 (1945) (remarks of Sen. Ferguson). Moreover, the National Association of Insurance Commissioners, whose concern was surely not limited to fire insurance, was certainly aware of provider agreements since it drafted model state enabling legislation to govern service-benefit health plans. But this Association, which played a major role in the drafting of the McCarran-Ferguson Act, did not include provider agreements in its proposed bill exempting specific practices of insurance companies from the scope of the antitrust laws. 90 Cong.Rec. A4406 (1944). Given this background, the failure of Congress to mention provider agreements, or anything in any way resembling them, suggests that Congress did not intend that provider agreements were to be exempt. 31 The dissenting opinion states that the National Securities case recognized that the legislative history of the Act "sheds little light" on the meaning of the "business of insurance." Post, at 234. In National Securities, however, the Court went on to state that the legislative history indicated that "Congress was mainly concerned with the relationship between insurance ratemaking and the antitrust laws, and with the power of the States to tax insurance companies." 393 U.S., at 458-459, 89 S.Ct., at 568. 32 One question not resolved by this legislative history is which of the various practices alleged in the South-Eastern Underwriters indictment Congress intended to be covered by the phrase "business of insurance." The indictment in that case had charged, for example, that the defendants had fixed their agents' commissions as well as premium rates. It is clear from the legislative history that the fixing of rates is the "business of insurance." The same conclusion does not so clearly emerge with respect to the fixing of agents' commissions. The bills introduced before the South-Eastern Underwriters decision which would have totally exempted the insurance industry from the antitrust laws specifically included agreements regarding agents' commissions as an exempt practice. E. g., H.R. 4444, 78th Cong., 2d Sess. (1944). Similarly, the bill proposed by the National Association of Insurance Commissioners two months after the South-Eastern Underwriters case was decided would have also exempted agents' commissions. 90 Cong.Rec. A4406 (1944). The subsequent bill that followed the approach of the NAIC and exempted specific activities, however, was limited to traditional underwriting activities and made no mention of agreements with insurance agents: § 4(b). "On and after March 1, 1946, the provisions of said Sherman Act shall not apply to any agreement or concerted or cooperative action between two or more insurance companies for making, establishing, or using rates for insurance, rating methods, premiums, insurance policy or bond forms, or underwriting rules . . .." S. 12, 79th Cong., 1st Sess. (1945). One inference that can be drawn from this pattern is that Congress was aware of the existence of agreements regarding agents' commissions, and chose not to include them within the exemption for the "business of insurance." On the other hand, the fact that the indictment in South-Eastern Underwriters had included a charge that insurance companies did boycott agents who insisted on selling other lines of insurance, together with the fact that § 3(b) presumably removes an exemption that, but for its absence, would be conferred by § 2, suggests that the "business of insurance" may have been intended to include dealings within the insurance industry between insurers and agents. Even if it be assumed, however, that transactions between an insurer and its agents, including independent agents, are the "business of insurance," it still does not follow that the Pharmacy Agreements also fall within the definition. Transactions between an insurer and an agent, unlike the Pharmacy Agreements, are wholly intra-industry; an insurance agent sells insurance while a pharmacy sells goods and services. Moreover, there are historical reasons why the Pharmacy Agreements should not be considered the "business of insurance," whatever may be the status of agreements between an insurer and its agents. See Part III-D, infra. 33 The only case to the contrary was Cleveland Hospital Service Assn. v. Ebright, 142 Ohio St. 51, 49 N.E.2d 929 (1943). There have been few cases dealing with the issue since the enactment of the McCarran-Ferguson Act; most of them have also held that Blue Cross and Blue Shield plans are not insurance. See, e. g., Michigan Hospital Service v. Sharpe, 339 Mich. 357, 63 N.W.2d 638 (1954); Hospital Service Corp. v. Pennsylvania Ins. Co., 101 R.I. 708, 227 A.2d 105 (1967). 34 The dissenting opinion argues that "regulation of the service-benefit plans was a part of the system of state regulation of insurance that the McCarran-Ferguson Act was designed to preserve." Post, at 240. It is not at all clear that States that passed enabling statutes regarded the plans as insurance. These statutes typically authorized the plans to operate but did not specify whether or not they were insurance. E. g., 1935 Ill.Laws, p. 621 ("An Act to provide for the Incorporation and Regulation of non-profit Hospital Service Corporations"); 1939 Mich.Pub.Acts No. 109 ("An Act to provide for and to regulate the incorporation of non-profit hospital service corporations"); 1938 N.J.Laws ch. 366 ("An Act concerning hospital service corporations and regulating the establishment, maintenance and operation of hospital service plans"); H.R. 6266, 76th Cong., 1st Sess. (1939) ("Providing for the incorporation of certain persons as Group Hospitalization, Inc."). This latter statute enacted by Congress also provided in § 7 "This corporation shall not be subject to the provisions of statutes regulating the business of insurance in the District of Columbia, but shall be exempt therefrom unless specifically designated therein." The Senate Report stated: "This bill does not change existing law but merely creates a private corporation which did not heretofore exist in the District of Columbia." S.Rep.No.1012, 76th Cong. 1st Sess., 2 (1939). At the time this statute was passed in 1939, the group health services plan in the District of Columbia had been construed not to be engaged in the business of insurance. Group Health Assn. v. Moor, 24 F.Supp. 445 (D.C.1938). Indeed, courts have continued to hold that Blue Shield plans are not insurance even in States that have enacted enabling statutes. E. g., Michigan Hospital Service v. Sharpe supra. In that case, the court specifically rejected the proposition that the existence of the enabling statute was sufficient to demonstrate that the plan was insurance. But even if certain aspects of a Blue Shield plan are the "business of insurance," the Pharmacy Agreements in this case are not—for all the reasons set out in this opinion. It is to be emphasized that the question whether provider agreements like the Pharmacy Agreements in this case, or other aspects of insurance companies, were in 1945 or are now regulated by state law is irrelevant to the issue before the Court in the present case. See n. 38, infra. 35 Despite the fact that courts did not view plans like Blue Cross and Blue Shield as insurance at the time of the passage of the McCarran-Ferguson Act, the petitioners argue that Attorney General Biddle's remarks when testifying in the Joint Hearing before the Subcommittees of the Committees on the Judiciary on S. 1362, H.R. 3269, and H.R. 3270, 78th Cong., 1st Sess., 41-42 (1943), indicate a congressional understanding that such plans were indeed insurance. The thrust of Attorney General Biddle's remarks was that this Court's decision in American Medical Assn. v. United States, 317 U.S. 519, 63 S.Ct. 326, 87 L.Ed. 434 justified the indictment in the South-Eastern Underwriters case. In the AMA case, the Court had held that a health-maintenance organization was engaged in "trade" within the meaning of the Sherman Act. Based on this decision, Attorney General Biddle expressed the view that the plan was insurance and that therefore the Court had already held that insurance was commerce. Thus, he argued that the indictment in South-Eastern Underwriters was proper. It seems clear, however, why this testimony does not demonstrate that Congress believed that Blue Cross or Blue Shield plans are insurance. First, the statement of the Attorney General that the plan in the AMA case was insurance was not accepted by Congress. Senator Bailey rejected the characterization, pointing out that the Court had not referred to the plan as insurance. To Senator Bailey, the plan was not insurance but a "group cooperative movement." (Indeed, the precise plan at issue was held not to be insurance in Jordan v. Group Health Assn., 71 App.D.C. 38, 107 F.2d 239 (1939).) But even if it can nonetheless be inferred that some Members of Congress may have agreed with the Attorney General that prepaid health plans are insurance, his testimony did not remotely suggest that agreements between an insurer and a third party fixing the cost at which goods and services will be purchased is also insurance. Similarly, the fact that a few years later some witnesses at a Senate Committee hearing referred to Blue Cross as insurance in discussing alternatives to national health insurance, e. g., Hearings before the Senate Committee on Education and Labor on S. 1606, 79th Cong., 2d Sess., pt. 1, pp. 172-176 (1946), does not establish that Congress shared this view, let alone that provider agreements like the Pharmacy Agreements in this case are insurance. 36 Weller, The McCarran-Ferguson Act's Antitrust Exemption for Insurance: Language, History and Policy, 1978 Duke L.J. 587, 624 n. 174. As one commentator has stated about the effectiveness of the traditional opposition of these organizations to being characterized as insurance: "[I]nsurance experts are fond of expressing amazement at Blue Cross and Blue Shield opinion that the Blues are not insurance but something else, such as 'pre-payment plans.' The insurance experts should control their incredulity of this view, or at least save some for the courts. For the fact is that the majority of cases have in effect upheld these so-called 'outrageous' opinions of Blue Cross adherents." Denenberg, The Legal Definition of Insurance, 30 J.Ins. 319, 322 (1963). 37 This is not to say that the contracts offered by Blue Shield to its policyholders, as distinguished from its provider agreements with participating pharmacies, may not be the "business of insurance" within the meaning of the Act. 38 This conclusion is in no way affected by the existence of state enabling statutes regulating advance-payment medical-benefits plans at the time the McCarran-Ferguson Act was enacted. E. g., 1937 Cal.Stats., ch. 882, as amended by 1941 Cal.Stats., ch. 311; 1939 Conn.Pub.Acts, ch. 150; 1935 Ill. Laws, p. 621; 1936 Miss.Gen.Laws, ch. 177; 1939 Mich. Pub.Acts, No. 109; 1938 N.J.Laws, ch. 719. These statutes generally provided that the plans were not insurance. See supra, at 226-227, and n. 34. Even if it is assumed that some state legislatures believed that these plans are insurance, however, it still does not follow that provider agreements like the Pharamacy Agreements in this case were considered by Congress to be the "business of insurance." Many aspects of insurance companies are regulated by state law, but are not the "business of insurance." Similarly, the enabling statutes in existence at the time the Act was enacted typically regulated such diverse aspects of the plans as the composition of their boards of directors, when their books and records could be inspected, how they could invest their funds, when they could liquidate or merge, as well as how they could purchase goods and services by entering into provider agreements. Provider agreements are no more the "business of insurance" because they were regulated by state law at the time of the McCarran-Ferguson Act than are these other facets of the plans which were similarly regulated. If Congress had exempted the "business of insurance companies," then these aspects of the plans which are not themselves insurance as that term is commonly understood would nevertheless be arguably exempt. But since Congress explicitly rejected this approach, they are not within the exemption even though they are the subject of state regulation. This Court has implicitly recognized that state regulation of a practice of an insurance company does not mean that the practice is the "business of insurance" within the meaning of the McCarran-Ferguson Act. In both cases, the SEC v. Variable Annuity Life Ins. Co., 359 U.S. 65, 79 S.Ct. 618, 3 L.Ed.2d 640, and SEC v. National Securities, Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668, the challenged conduct was regulated by the State Insurance Commissioner, but this Court held that the practices were not the "business of insurance." 39 As the Court stated in Pennington, 381 U.S., at 665-666, 85 S.Ct. at 1591 (footnote omitted): "[A] union may make wage agreements with a multi-employer bargaining unit and may in pursuance of its own union interests seek to obtain the same terms from other employers. No case under the antitrust laws could be made out on evidence limited to such union behavior. But we think a union forfeits its exemption from the antitrust laws when it is clearly shown that it had agreed with one set of employers to impose a certain wage scale on other bargaining units. One group of employers may not conspire to eliminate competitors from the industry and the union is liable with the employers if it becomes a party to the conspiracy." 40 There is no principled basis upon which a line could rationally be drawn that would extend the McCarran-Ferguson Act exemption only to an insurer's agreement with providers of goods and services to be furnished to its policyholders—such as agreements with hospitals, doctors, lawyers, and the like. But assuming that such a line could rationally be drawn, to hold that even such provider agreements are the "business of insurance" is to ignore the language and purpose of the Act not to exempt the insurance industry as such from the antitrust laws. Moreover, exempting provider agreements from the antitrust laws would be likely in at least some cases to have serious anticompetitive consequences. Recent studies have concluded that physicians and other health-care providers typically dominate the boards of directors of Blue Shield plans. Thus, there is little incentive on the part of Blue Shield to minimize costs, since it is in the interest of the providers to set fee schedules at the highest possible level. This domination of Blue Shield by providers is said to have resulted in rapid escalation of health-care costs to the detriment of consumers generally. See Skyrocketing Health Care Costs: The Role of Blue Shield, Hearings before the Subcommittee on Oversight and Investigations of the House Committee on Interstate and Foreign Commerce, 95th Cong., 2d Sess., 4-34 (1978) (remarks of Michael Pertschuk, Chairman, Federal Trade Commission). 41 It might be argued that some such agreements are exempt from the antitrust laws under the state-action exemption of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315. But that exemption would exist because of the extent of state regulation and not because the agreements are the "business of insurance." 1 Section 2(b) of the Act, as set forth in 15 U.S.C. § 1012(b), provides: "(b) No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended [15 U.S.C. § 41 et seq.], shall be applicable to the business of insurance to the extent that such business is not regulated by State Law." Section 3(b), as set forth in 15 U.S.C. § 1013(b), provides: "(b) Nothing contained in this chapter shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation." 2 The Court argues that the silence with respect to agreements between insurers and third parties, coupled with the fact that Congressmen did discuss horizontal agreements between insurance companies, establishes by negative inference that third-party agreements were not considered "the business of insurance." There is, however, a compelling explanation for the lack of mention of provider agreements. As the Court has noted in several cases, see, e. g., SEC v. National Securities, Inc., 393 U.S. 453, 459, 89 S.Ct. 564, 568, 21 L.Ed.2d 668 (1969); St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 538-539, 98 S.Ct. 2923, 2928-2929, 57 L.Ed.2d 932 (1978), the McCarran-Ferguson Act was a reaction to the decision in United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944). See infra, at 236-237. That case involved an organization of fire insurance companies, and much of the congressional discussion accordingly concerned alleged abuses by and regulation of such companies. See, e. g., 91 Cong.Rec. 1091-1092, 1479 (1945); 90 Cong.Rec. 6449-6455, 6527 (1944). Indeed, health insurers did not even participate in the hearings on the Act. See Joint Hearing before the Subcommittees of the Committees on the Judiciary on S. 1362 et al., 78th Cong., 1st Sess. (1943). Since fire insurers paid their policyholders cash indemnities, these companies had no reason to contract with third parties for the provision of goods or services. That fact fully explains the absence of discussion of such contracts in the congressional debates. Such absence no more indicates a congressional intent to exclude provider agreements from the "business of insurance" than does the absence of any mention of health insurance companies indicate a congressional intent arbitrarily to exclude all health insurance from the "business of insurance." 3 S. 12, 79th Cong., 1st Sess. (1945), would have specified "any agreement or concerted or cooperative action between two or more insurance companies for making, establishing, or using rates for insurance, rating methods, premiums, insurance policy or bond forms, or underwriting rules." (Emphasis added.) See also § 4(b) of a draft bill of the National Association of Insurance Commissioners, 90 Cong.Rec. A4406 (1944). A significant Senate floor debate with regard to such limiting bills is the following: "MR. PEPPER. Would it not be better that those agreements, if there are such that are legitimatized, be identified in the statute? "MR. O'MAHONEY. I quite agree with the Senator, and I endeavored to the very best of my ability to induce the committees of Congress to write into the law specific exemptions from the antitrust law, but I was unable to prevail in the Committee on the Judiciary and I was unable to prevail on the floor of the Senate." 91 Cong.Rec. 1444 (1945). The Court challenges the conclusion that Congress intended to phrase the exemption broadly by referring to the legislative history of one obscure amendment to an early House version of the Act. Ante, at 222-223 n. 29. Closer examination of the short debate surrounding that amendment reveals only the Representatives' repeated expressions of their confusion over what the amendment meant. See 90 Cong.Rec. 6562 (1944) (remarks of Reps. Sumners, Hobbs, and Fernandez). 4 There can be no quarrel with the Court's statement, ante, at 220, and n. 24, that the McCarran-Ferguson Act was not intended to restore the law, in all respects, to what it had been before South-Eastern Underwriters. But the principal differences between pre-South-Eastern and post-McCarran-Ferguson law are irrelevant for purposes of this case, and do not detract from the Court's oft-repeated statement that the purpose of the Act was to preserve state regulatory schemes as they existed before South-Eastern Underwriters. Before South-Eastern, insurance companies might boycott, coerce, and intimidate without violating federal antitrust statutes since insurance was not considered "commerce" and hence was beyond the reach of federal law. For the same reason, even unregulated insurance transactions were free from antitrust attack. Finally, Congress, because of the "commerce" problem, could not otherwise regulate insurance. None of these elements survived the decision in South-Eastern, and none was revived by McCarran-Ferguson. These differences between pre-South-Eastern and post-McCarran-Ferguson law were what Senator Ferguson had in mind when he answered "no" to Senator McKellar's question, cited by the Court, ante, at 220 n. 24, asking whether the effect of the Act was to re-establish the law as it stood prior to South-Eastern. This is revealed by quotation of Senator Ferguson's full answer to Senator McKellar. "MR. FERGUSON. No. I would say that subsection (b), at the bottom of page 2, would allow the provisions of the Sherman Act to apply to all agreements or acts of boycott, coercion, or intimidation, and subsection 4(a) would suspend the application of the provisions of the Sherman Act and the Clayton Act, insofar as States may regulate and tax such companies, until certain dates or until Congress may act in the meantime in respect to what Congress thinks should be done with the business of insurance." 91 Cong.Rec. 478 (1945). These discrete differences between pre-South-Eastern and post-McCarran-Ferguson law are not applicable here, and do not conflict with the holdings of this Court's prior opinions that, with respect to state-regulated insurance practices not constituting boycotts, McCarran-Ferguson was intended to preserve pre-existing state insurance regulation. This analysis also explains, and renders irrelevant for this case, Congress' rejection of the "total" exemption bills cited by the Court, ante, at 218-219, and n. 21. Those bills, unlike the one that passed, would have exempted boycotts and unregulated transactions. It was this aspect of the "total" exemption bills to which the National Association of Insurance Commissioners objected. See 90 Cong.Rec. 8482 (1944). These bills were rejected not because of a decision to narrow the scope of the nonboycott activities to be exempted, but because Congress determined that the business of insurance should be exempted only where regulated by the States, rather than unconditionally. 5 See SEC v. National Securities, Inc., 393 U.S., at 460, 89 S.Ct., at 568 ("The relationship between insurer and insured, [and] the type of policy which could be issued . . . [are] the core of the 'business of insurance.' "). (Emphasis added.) 6 See 1935 Ala.Acts No. 544; 1935 Cal.Stats., ch. 386; 1939 Conn.Pub.Acts, ch. 150; ch. 698, 53 Stat. 1412 (1939) (District of Columbia); 1937 Ga.Laws, p. 690; 1935 Ill.Laws, p. 621; 1939 Iowa Acts, ch. 222; 1938 Ky.Acts, ch. 23; 1939 Me.Acts, ch. 149; 1937 Md.Laws, ch. 224; 1936 Mass.Acts, ch. 409; 1939 Mich.Pub.Acts No. 109; 1936 Miss.Gen.Laws, ch. 177; 1939 N.H.Laws, ch. 80; 1938 N.J.Laws, ch. 366; 1939 N.M.Laws, ch. 66; 1934 N.Y.Laws, ch. 595; 1939 Ohio Leg.Acts, p. 154; 1937 Pa.Laws No. 378; 1939 R.I.Acts, ch. 719; 1939 S.C.Acts No. 296; 1939 Tex.Gen.Laws, p. 123; 1939 Vt.Laws No. 174; 1939 Wis.Laws, ch. 118. 7 F. Hedinger, The Social Role of Blue Cross as a Device for Financing the Costs of Hospital Care 51 (1966). The additional statutes were: 1945 Ariz.Sess.Laws, ch. 13 (1st Spec.Sess.); 1939 Fla.Laws, ch. 19108; 1941 Kan.Sess.Laws, ch. 259; 1940 La.Acts No. 267; 1941 Minn.Laws, ch. 53; 1941 Neb.Laws, ch. 43; 1941 N.C.Pub.Laws, ch. 338; 1943 N.D.Laws, ch. 103; 1945 Tenn.Pub.Acts, ch. 98; 1940 Va.Acts, ch. 230; 1943 W.Va.Acts, ch. 8. 8 See 91 Cong.Rec. 483 (1945) (remarks of Sen. O'Mahoney). 9 Debate arose during this period as to whether service-benefit plans were technically insurance. See ante, at 225-230. Most state insurance commissioners ruled during the 1930's that the plans constituted insurance, and therefore had to meet the capital stock, reserve, and assessment requirements applicable to the commercial stock and mutual insurance companies which offered cash indemnity policies. Eilers 101. In addition, this meant that the plans were subject to special state taxation. Ibid. Such holdings limited the feasibility of the plans at a time when they were widely perceived as being socially beneficial. Moreover, it was argued that these rulings were inappropriate to service-benefit plans, which were generally "nonprofit," and often included guarantees by hospitals to provide services regardless of the financial state of the insurer—potentially an adequate substitute for the cash reserves needed by indemnity plans. Id., at 135-136, 239. Some courts, and even some Blue Cross-type organizations, attempted to surmount these barriers to effectuation of plans deemed to be in the public interest by arguing that the plans were not technically "insurance" subject to the jurisdiction of state insurance commissioners, and hence were not bound by the requirements of the stock and mutual insurance companies. See, e. g., Jordan v. Group Health Assn., 71 App.D.C. 38, 107 F.2d 239 (1939). But see Cleveland Hospital Service Assn. v. Ebright, 142 Ohio St. 51, 49 N.E.2d 929 (1943) (hospital service plans are insurance); McCarty v. King County Medical Service Corp., 26 Wash.2d 660, 175 P.2d 653 (1946) (same). But contemporary commentators questioned the soundness of such views and argued that the plans should be treated as insurance, although as a special kind not subject to the traditional requirements. See, e. g., Note, The Legal Problems of Group Health, 52 Harv.L.Rev. 809, 815 (1939); Comment, Group Health Plans: Some Legal and Economic Aspects, 53 Yale L.J. 162, 172 (1943). The 35 state enabling Acts governing service-benefit health plans reflected the States' agreement that the plans were "a special type of insurance" differing from the stock and mutual companies. Rorem II, p. 534; Sinai 48. This is most clearly demonstrated by the fact that the vast majority of the state statutes, while relieving the plans of "other" insurance law requirements (primarily the reserve requirements and special insurance taxes), subjected their activities to the control of the state insurance commissioner. The 1939 New Mexico Statute, for example, amended the State's Insurance Code by adding a new section entitled "Non-Profit Hospital Service Plans." The amendment subjected the plans, and in particular both their premiums and rates of payment to hospitals, to the approval of the Superintendent of Insurance, while exempting them from "all other provisions of the insurance law." 1939 N.M.Laws, ch. 66 (emphasis added). This approach was in accord with the commonly held view that such plans were forms of "insurance," as reflected by the statements of numerous Congressmen in the congressional hearings on the proposed National Health Program, see infra, at 243. And everyday meaning, rather than some technical term of art, is what Congress intended by its use of the word "insurance" in the McCarran-Ferguson Act. 10 Messages of two Presidents to the Congress on the subject of national health care also referred to service-benefit plans as forms of insurance. Message from the President of the United States, Report and Recommendations on National Health, H.R.Doc.No.120, 76th Cong., 1st Sess., 63 (1939); Message from the President, A National Health Program, H.R.Doc.No.380, 79th Cong., 1st Sess., 9, 10 (1945). 11 The respondents do not argue this view. They agree that some provider contracts may constitute the "business of insurance." Brief for Respondents 33. 12 "Underwriting," the Solicitor General argues, means "spread[ing] risk more widely or reduc[ing] the role of chance events." Brief for United States as Amicus Curiae 17 (hereinafter Government Brief). For purposes of argument I will assume that this is a correct definition of "underwriting." But see R. Holtom, Underwriting Principles and Practices 11 (1973). 13 The effort to distinguish insurer/agent transactions from provider agreements on the ground that the former are "wholly intra-industry" while the latter are not, ante, at 225 n. 32, constitutes argument by tautology. The former are "intra-industry" and the latter not, only because the Court so holds today. 14 See, e. g., 1935 Cal.Stats., ch. 386; 1939 Iowa Acts, ch. 222; 1937 Md.Laws, ch. 224; 1939 Me.Acts, ch. 149; 1939 N.H.Laws, ch. 80; 1939 S.C.Acts No. 296. See also Rorem I, pp. 67-68; Sinai 48-49. Such provisions were often quite extensive, e. g., requiring approval by the insurance commissioner of contracts between hospitals and the corporation, including rates of payment, ibid.; requiring that the contracts contain guarantees of services by the hospitals to policyholders despite financial difficulties of the insurer, Rorem I, p. 67; or even limiting the kind of hospitals with which contracts could be made, id., at 68. 15 Indeed, unions negotiating for drug-coverage plans have requested that the plans include contractual arrangements with pharmacies, in order to guarantee that the policy's promises are kept. See Brief for Motor Vehicle Manufacturers Assn. as Amicus Curiae 10-11. It might be argued that the drug-benefits policy could operate successfully without any agreement between Blue Shield and the pharmacies. The consumer could simply pay the pharmacist his full price, whereupon he would normally receive the drugs without hesitation. Blue Shield could then reimburse the policyholder for the full price minus the $2 deductible. This would not, however, be the policy bargained for in this case. That policy guarantees provision of drugs upon a minimal $2 payment, without requiring the policyholder to advance the full price when the contingency of illness occurs—a time when he may not be able to afford the out-of-pocket payment. Moreover, such cash-reimbursement plans almost inevitably include payment ceilings, again distinguishing them from the full-coverage service plan bargained for in this case. See discussion, infra, at 252, and n. 20. 16 The Court errs in its reading of SEC v. Variable Annuity Life Ins. Co., 359 U.S. 65, 79 S.Ct. 618, 3 L.Ed.2d 640 (1959). There a "variable annuity" plan was held not to be "the business of insurance" because all risk remained on the policyholder and no underwriting of risk occurred. The key to Variable Annuity is that neither the agreement at issue nor any with which it was involved effectuated a transference of risk. Id., at 71, 79 S.Ct., at 621. That is not the case here, where the policyholder has successfully transferred his risk by trading his premium for the certainty of benefits in the event of illness. 17 Sinai 49. See, e. g., 1937 Ga.Laws, p. 690; 1939 Iowa Acts, ch. 222; 1939 Mich.Pub.Acts No. 109; 1939 N.M.Laws, ch. 66; 1939 Tex.Gen.Laws, p. 123. The same is true of the modern state statutes. See Eilers 106-107. 18 Indeed, some state insurance commissioners have made aggressive use of their authority over provider contracts as a means of controlling premium rates. See Frankford Hospital v. Blue Cross of Greater Philadelphia, 417 F.Supp. 1104, 1106 (ED Pa.1976), aff'd, 554 F.2d 1253 (CA3), cert. denied, 434 U.S. 860, 98 S.Ct. 186, 54 L.Ed.2d 133 (1977); State of Michigan, Commissioner of Ins., No. 77-R-101 (Mar. 3, 1977); State of Illinois, Dept. of Ins., Hearing No. 1607 (Apr. 8, 1977). This may also explain why the Federal Government, in programs in which it functions as a health insurer, requires that its provider agreements include specified fee formulas. See, e. g., 42 U.S.C. §§ 1395u, 1395x(v) (Medicare). 19 The pharmacist respondents would not be better off if Blue Shield set acquisition cost as well as markup. In that event they might not even meet the cost of their own outlays. 20 The plan here was "bargained for" in the literal sense. It had its origins in a 1967 collective-bargaining agreement between the United Auto Workers and the three largest domestic automobile manufacturers. Brief for Petitioners 6. 21 The Solicitor General suggests that this test could be subverted by an insurer's decision to list all kinds of incidental and even unrelated transactions in its policy. As with other forms of antitrust immunity, I have no difficulty concluding that "sham" arrangements should not be honored. Cf. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144, 81 S.Ct. 523, 533, 5 L.Ed.2d 464 (1961); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). 22 These factors together are sufficient to decide this case. I need not decide whether either would independently suffice, nor whether in the absence of these factors others might also be capable of bringing a provider agreement within the exemption. 23 See Proctor v. State Farm Mutual Automobile Ins. Co., 182 U.S.App.D.C. 264, 561 F.2d 262 (1977), aff'g 406 F.Supp. 27 (DC 1975), cert. pending, No. 77-580; Doctors, Inc. v. Blue Cross of Greater Philadelphia, 557 F.2d 1001 (CA3 1976), aff'g 431 F.Supp. 5 (ED Pa.1975); Frankford Hospital v. Blue Cross of Greater Philadelphia, 554 F.2d 1253 (CA3 1976), aff'g 417 F.Supp. 1104 (ED Pa.), cert. denied, 434 U.S. 860, 98 S.Ct. 186, 54 L.Ed.2d 133 (1977); Anderson v. Medical Service of District of Columbia, 551 F.2d 304 (CA4 1977), aff'g 1976-1 Trade Cases ¶ 60,884 (ED Va.); Travelers Ins. Co. v. Blue Cross of Western Pennsylvania, 481 F.2d 80 (CA3), aff'g 361 F.Supp. 774 (WD Pa.1972), cert. denied, 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (1973). 24 Such an arrangement could not be suspect simply because it would be anticompetitive, see discussion, supra, at 249. Rather, that means of providing policy benefits might be regarded as so unnecessary, and so likely to have its principal impact on pharmacies rather than policyholders, as to cross the boundary line of what constitutes the "business of insurance." I intimate no view upon the question. 25 The analogies to other antitrust exemptions referred to by the Court, ante, at 231-232, are inapt. It is true that as a general rule an "exempt" party loses its immunity when it makes an agreement that is outside the scope of the exemption. But that general rule has no application here unless one assumes what the respondents need to prove—that the Pharmacy Agreements are outside the scope of the McCarran-Ferguson Act. Reference to the cases under the Capper-Volstead Act is not helpful on the matter, as that Act limits its exemption to those who are "engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers." 42 Stat. 388, 7 U.S.C. § 291 (emphasis added). As a result, this Court has held that agreements involving nonfarmers are not exempt. National Broiler Marketing Assn. v. United States, 436 U.S. 816, 98 S.Ct. 2122, 56 L.Ed.2d 728 (1978). As the Court emphasizes, however, the McCarran-Ferguson Act exemption was not written in terms of "insurance companies," but extends instead to the "business of insurance." Hence, the participation of pharmacies does not automatically vitiate the exemption, as does the participation of nonfarmers in the Capper-Volstead "analogy." Nor is reference to the labor exemption helpful to the Court. The quotation from Mine Workers v. Pennington, 381 U.S. 657, 665-666, 85 S.Ct. 1585, 1590-1591, 14 L.Ed.2d 626 (1965), cited by the Court, ante, at 232 n. 39, is in complete accord with what I would conclude here: "[A] union [read 'insurer'] may make wage [pharmacy] agreements with a multi-employer bargaining unit [a group of pharmacies] . . . . But . . . [o]ne group of employers [pharmacies] may not conspire to eliminate competitors from the industry and the union [insurer] is liable with the employers [pharmacies] if it becomes a party to the conspiracy." The labor exemption is a particularly poor analogy for the Court to stress because in yet another footnote, Pennington expressly approved a set of transactions virtually identical to those complained of in this case. Here, respondents contend that Blue Shield adopted a uniform fee policy, even though it may have suspected that some pharmacies would not be able to compete if required to limit their markup to that demanded by Blue Shield. There was, however, no additional evidence of a conspiracy among the participating pharmacies to drive out their less able brethren, which Blue Shield then joined. This was precisely the set of circumstances held by the Pennington Court to be within the scope of the exemption: "Unilaterally, and without agreement with any employer group to do so, a union may adopt a uniform wage policy and seek vigorously to implement it even though it may suspect that some employers cannot effectively compete if they are required to pay the wage scale demanded by the union. The union need not gear its wage demands to wages which the weakest units in the industry can afford to pay. Such union conduct is not alone sufficient evidence to maintain a union-employer conspiracy charge under the Sherman Act. There must be additional direct or indirect evidence of the conspiracy." 381 U.S., at 665 n.2, 85 S.Ct., at 1591 n. 2. Thus, the approach taken by the Court today does not merely "narrowly" construe "insurance" in accordance with our general practice. Rather, that approach actively discriminates between kinds of insurance, effectively confining "insurance" to traditional forms and effectively excluding forms that provide full-service coverage via provider agreements. It thereby places a significant obstacle in the path of the latter. 26 The Court argues, ante, at 232 n. 40, that provider agreements may have anticompetitive consequences which could lead to escalation of health-care costs. The argument is not without force, but I must note that the very purpose of an antitrust exemption is to protect anticompetitive conduct. The argument, therefore, is better directed to the legislature, which has the power to modify or repeal McCarran-Ferguson, rather than to this Court. Referral to the legislators is particularly appropriate in this case, as the policy aspects may not be as one-sided as those painted by the Court. There is authority for the proposition that provider agreements, far from increasing costs, constitute an effective means for reduction in health-care prices and premiums. Council on Wage and Price Stability, Employee Health Care Benefits: Labor and Management Sponsored Innovations in Controlling Cost, 41 Fed.Reg. 40298, 40305 (1976). And the argument that "there is little incentive on the part of Blue Shield to minimize costs, since it is in the interest of the providers to set fee schedules at the highest possible level" overlooks the vital consideration that many if not most of these plans originate in collective-bargaining agreements where "the consumer power and negotiating expertise of organized labor" combine to "reduce the unit price of health services." Ibid. Control over provider agreements by state insurance commissioners constitutes a second "incentive" operating in the same direction. See n. 18, supra. Whether or not the potential anticompetitive impact of McCarran-Ferguson outweighs these positive effects on health-care costs is a judgment properly to be made by Congress.

78

440 U.S. 257 99 S.Ct. 1096 59 L.Ed.2d 296 Jane ARONSON, Petitioner,v.QUICK POINT PENCIL COMPANY. No. 77-1413. Argued Dec. 6, 1978. Decided Feb. 28, 1979. Syllabus Petitioner entered into a contract with respondent whereby, in return for the exclusive right to make and sell a keyholder designed by petitioner for which a patent application was pending, respondent agreed to pay petitioner a royalty of 5% of the selling price. If the patent was not allowed within five years, the royalty was to be reduced to 21/2% of sales. The patent was not allowed within five years, whereupon respondent accordingly reduced the royalty to 21/2%. Subsequently the patent application was rejected. After respondent had paid petitioner royalties for a number of years following rejection of the patent application, it brought an action in District Court seeking a declaratory judgment that the royalty agreement was unenforceable on the ground that state law which otherwise made the contract enforceable was pre-empted by federal patent law. The District Court upheld the contract, but the Court of Appeals reversed, holding that the contract became unenforceable once petitioner failed to obtain a patent within the stipulated 5-year period and that a continuing obligation to pay royalties would be contrary to "the strong federal policy in favor of the full and free use of ideas in the public domain," Lear, Inc. v. Adkins, 395 U.S. 653, 674, 89 S.Ct. 1902, 1913, 23 L.Ed.2d 610. Held : Federal patent law does not pre-empt state contract law so as to preclude enforcement of the contract. Cf. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315. Pp. 261-266. (a) Enforcement of the contract is not inconsistent with the purposes of the federal patent system (1) to foster and reward invention; (2) to promote disclosure of inventions, stimulate further innovation, and permit the public to practice the invention once the patent expires; and (3) to assure that ideas in the public domain remain there for the free use of the public. Pp. 262-264. (b) Enforcement of the contract does not prevent anyone from copying the keyholder but merely requires respondent to pay the consideration it promised in return for the use of a novel device which enabled it to pre-empt the market. P. 264. (c) When, as here, no patent has issued, and no ideas have been withdrawn from public use, the case is not controlled by the holding of Lear, supra, that a patent licensee who establishes the invalidity of a patent need not pay royalties accrued after the issuance of the patent, nor by the rationale of that case that it is desirable to encourage licensees to challenge the validity of patents in order to further the strong federal policy that only inventions meeting the rigorous requirements of patentability shall be withdrawn from the public domain. P. 264. (d) Enforcement of the contract comports with the principle that the monopoly granted under a patent cannot lawfully be used "to negotiate with the leverage of that monopoly." Brulotte v. Thys Co., 379 U.S. 29, 33, 85 S.Ct. 176, 179, 13 L.Ed.2d 99, since the challenged reduced royalty, rather than being so negotiated, rested on the contingency that no patent would issue within five years. Pp. 264-265. 8 Cir., 567 F.2d 757, reversed. C. Lee Cook, Jr., Chicago, Ill., for petitioner. B. Barry Grossman, Washington, D. C., for the United States, as amicus curiae, by special leave of Court. Erwin N. Griswold, Washington, D. C., for respondent. Mr. Chief Justice BURGER delivered the opinion of the Court. 1 We granted certiorari, 436 U.S. 943, 98 S.Ct. 2843, 56 L.Ed.2d 784, to consider whether federal patent law pre-empts state contract law so as to pre clude enforcement of a contract to pay royalties to a patent applicant, on sales of articles embodying the putative invention, for so long as the contracting party sells them, if a patent is not granted. 2 (1) 3 In October 1955 the petitioner, Mrs. Jane Aronson, filed an application, Serial No. 542677, for a patent on a new form of keyholder. Although ingenious, the design was so simple that it readily could be copied unless it was protected by patent. In June 1956, while the patent application was pending, Mrs. Aronson negotiated a contract with the respondent, Quick Point Pencil Co., for the manufacture and sale of the keyholder. 4 The contract was embodied in two documents. In the first, a letter from Quick Point to Mrs. Aronson, Quick Point agreed to pay Mrs. Aronson a royalty of 5% of the selling price in return for "the exclusive right to make and sell keyholders of the type shown in your application, Serial No. 542677." The letter further provided that the parties would consult one another concerning the steps to be taken "[i]n the event of any infringement." 5 The contract did not require Quick Point to manufacture the keyholder. Mrs. Aronson received a $750 advance on royalties and was entitled to rescind the exclusive license if Quick Point did not sell a million keyholders by the end of 1957. Quick Point retained the right to cancel the agreement whenever "the volume of sales does not meet our expectations." The duration of the agreement was not otherwise prescribed. 6 A contemporaneous document provided that if Mrs. Aronson's patent application was "not allowed within five (5) years, Quick Point Pencil Co. [would] pay . . . two and one half percent (21/2%) of sales . . . so long as you [Quick Point] continue to sell same."** ** In April 1961, while Mrs. Aronson's patent application was pending, her husband sought a patent on a different keyholder and made plans to license another company to manufacture it. Quick Point's attorney wrote to the couple that the proposed new license would violate the 1956 agreement. He observed that 7 "your license agreement is in respect of the disclosure of said Jane [Aronson's] application (not merely in respect of its claims) and that even if no patent is ever granted on the Jane [Aronson] application, Quick Point Pencil Company is obligated to pay royalties in respect of any keyholder manufactured by it in accordance with any disclosure of said application." (Emphasis added.) In June 1961, when Mrs. Aronson had failed to obtain a patent on the keyholder within the five years specified in the agreement, Quick Point asserted its contractual right to reduce royalty payments to 21/2% of sales. In September of that year the Board of Patent Appeals issued a final rejection of the application on the ground that the keyholder was not patentable, and Mrs. Aronson did not appeal. Quick Point continued to pay reduced royalties to her for 14 years thereafter. 8 The market was more receptive to the keyholder's novelty and utility than the Patent Office. By September 1975 Quick Point had made sales in excess of $7 million and paid Mrs. Aronson royalties totaling $203,963.84; sales were continuing to rise. However, while Quick Point was able to pre-empt the market in the earlier years and was long the only manufacturer of the Aronson keyholder, copies began to appear in the late 1960's. Quick Point's competitors, of course, were not required to pay royalties for their use of the design. Quick Point's share of the Aronson keyholder market has declined during the past decade. 9 (2) 10 In November 1975 Quick Point commenced an action in the United States District Court for a declaratory judgment, pursuant to 28 U.S.C. § 2201, that the royalty agreement was unenforceable. Quick Point asserted that state law which might otherwise make the contract enforceable was preempted by federal patent law. This is the only issue presented to us for decision. 11 Both parties moved for summary judgment on affidavits, exhibits, and stipulations of fact. The District Court concluded that the "language of the agreement is plain, clear and unequivocal and has no relation as to whether or not a patent is ever granted." Accordingly, it held that the agreement was valid, and that Quick Point was obliged to pay the agreed royalties pursuant to the contract for so long as it manufactured the keyholder. 12 The Court of Appeals reversed, one judge dissenting. 567 F.2d 757. It held that since the parties contracted with reference to a pending patent application, Mrs. Aronson was estopped from denying that patent law principles governed her contract with Quick Point. Although acknowledging that this Court had never decided the precise issue, the Court of Appeals held that our prior decisions regarding patent licenses compelled the conclusion that Quick Point's contract with Mrs. Aronson became unenforceable once she failed to obtain a patent. The court held that a continuing obligation to pay royalties would be contrary to "the strong federal policy favoring the full and free use of ideas in the public domain," Lear, Inc. v. Adkins, 395 U.S. 653, 674, 89 S.Ct. 1902, 1913, 23 L.Ed.2d 610 (1969). The court also observed that if Mrs. Aronson actually had obtained a patent, Quick Point would have escaped its royalty obligations either if the patent were held to be invalid, see ibid., or upon its expiration after 17 years, see Brulotte v. Thys Co., 379 U.S. 29, 85 S.Ct. 176, 13 L.Ed.2d 99 (1964). Accordingly, it concluded that a licensee should be relieved of royalty obligations when the licensor's efforts to obtain a contemplated patent prove unsuccessful. 13 (3) 14 On this record it is clear that the parties contracted with full awareness of both the pendency of a patent application and the possibility that a patent might not issue. The clause de-escalating the royalty by half in the event no patent issued within five years makes that crystal clear. Quick Point apparently placed a significant value on exploiting the basic novelty of the device, even if no patent issued; its success demonstrates that this judgment was well founded. Assuming, arguendo, that the initial letter and the commitment to pay a 5% royalty was subject to federal patent law, the provision relating to the 21/2% royalty was explicitly independent of federal law. The cases and principles relied on by the Court of Appeals and Quick Point do not bear on a contract that does not rely on a patent, particularly where, as here, the contracting parties agreed expressly as to alternative obligations if no patent should issue. 15 Commercial agreements traditionally are the domain of state law. State law is not displaced merely because the contract relates to intellectual property which may or may not be patentable; the states are free to regulate the use of such intellectual property in any manner not inconsistent with federal law. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 479, 94 S.Ct. 1879, 1885, 40 L.Ed.2d 315 (1974); see Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973). In this as in other fields, the question of whether federal law pre-empts state law "involves a consideration of whether that law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Hines v. Davidowitz, 312 U.S. 52, 67 [61 S.Ct. 399, 404, 85 L.Ed. 581] (1941)." Kewanee Oil Co., supra., 416 U.S., at 479, 94 S.Ct., at 1885. If it does not, state law governs. 16 In Kewanee Oil Co., supra, at 480-481, 94 S.Ct., at 1885-1886, we reviewed the purposes of the federal patent system. First, patent law seeks to foster and reward invention; second, it promotes disclosure of inventions, to stimulate further innovation and to permit the public to practice the invention once the patent expires; third, the stringent requirements for patent protection seek to assure that ideas in the public domain remain there for the free use of the public. 17 Enforcement of Quick Point's agreement with Mrs. Aronson is not inconsistent with any of these aims. Permitting inventors to make enforceable agreements licensing the use of their inventions in return for royalties provides an additional incentive to invention. Similarly, encouraging Mrs. Aronson to make arrangements for the manufacture of her keyholder furthers the federal policy of disclosure of inventions; these simple devices display the novel idea which they embody wherever they are seen. 18 Quick Point argues that enforcement of such contracts conflicts with the federal policy against withdrawing ideas from the public domain and discourages recourse to the federal patent system by allowing states to extend "perpetual protection to articles too lacking in novelty to merit any patent at all under federal constitutional standards," Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 232, 84 S.Ct. 784, 789, 11 L.Ed.2d 661 (1964). 19 We find no merit in this contention. Enforcement of the agreement does not withdraw any idea from the public domain. The design for the keyholder was not in the public domain before Quick Point obtained its license to manufacture it. See Kewanee Oil Co., supra, 416 U.S. at 484, 94 S.Ct. at 1887. In negotiating the agreement, Mrs. Aronson disclosed the design in confidence. Had Quick Point tried to exploit the design in breach of that confidence, it would have risked legal liability. It is equally clear that the design entered the public domain as a result of the manufacture and sale of the keyholders under the contract. 20 Requiring Quick Point to bear the burden of royalties for the use of the design is no more inconsistent with federal patent law than any of the other costs involved in being the first to introduce a new product to the market, such as outlays for research and development, and marketing and promotional expenses. For reasons which Quick Point's experience with the Aronson keyholder demonstrate, innovative entrepreneurs have usually found such costs to be well worth paying. 21 Finally, enforcement of this agreement does not discourage anyone from seeking a patent. Mrs. Aronson attempted to obtain a patent for over five years. It is quite true that had she succeeded, she would have received a 5% royalty only on keyholders sold during the 17-year life of the patent. Offsetting the limited terms of royalty payments, she would have received twice as much per dollar of Quick Point's sales, and both she and Quick Point could have licensed any others who produced the same keyholder. Which course would have produced the greater yield to the contracting parties is a matter of speculation; the parties resolved the uncertainties by their bargain. 22 (4) 23 No decision of this Court relating to patents justifies relieving Quick Point of its contract obligations. We have held that a state may not forbid the copying of an idea in the public domain which does not meet the requirements for federal patent protection. Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964); Sears, Roebuck & Co. v. Stiffel Co., supra. Enforcement of Quick Point's agreement, however, does not prevent anyone from copying the keyholder. It merely requires Quick Point to pay the consideration which it promised in return for the use of a novel device which enabled it to pre-empt the market. 24 In Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969), we held that a person licensed to use a patent may challenge the validity of the patent, and that a licensee who establishes that the patent is invalid need not pay the royalties accrued under the licensing agreement subsequent to the issuance of the patent. Both holdings relied on the desirability of encouraging licensees to challenge the validity of patents, to further the strong federal policy that only inventions which meet the rigorous requirements of patentability shall be withdrawn from the public domain. Id., at 670-671, 673-674, 89 S.Ct. at 1911, 1912-1913. Accordingly, neither the holding nor the rationale of Lear controls when no patent has issued, and no ideas have been withdrawn from public use. 25 Enforcement of the royalty agreement here is also consistent with the principles treated in Brulotte v. Thys Co., 379 U.S. 29, 85 S.Ct. 176, 13 L.Ed.2d 99 (1964). There, we held that the obligation to pay royalties in return for the use of a patented device may not extend beyond the life of the patent. The principle underlying that holding was simply that the monopoly granted under a patent cannot lawfully be used to "negotiate with the leverage of that monopoly." The Court emphasized that to "use that leverage to project those royalty payments beyond the life of the patent is analogous to an effort to enlarge the monopoly of the patent . . . ." Id., at 33, 85 S.Ct., at 179. Here the reduced royalty which is challenged, far from being negotiated "with the leverage" of a patent, rested on the contingency that no patent would issue within five years. 26 No doubt a pending patent application gives the applicant some additional bargaining power for purposes of negotiating a royalty agreement. The pending application allows the inventor to hold out the hope of an exclusive right to exploit the idea, as well as the threat that the other party will be prevented from using the idea for 17 years. However, the amount of leverage arising from a patent application depends on how likely the parties consider it to be that a valid patent will issue. Here, where no patent ever issued, the record is entirely clear that the parties assigned a substantial likelihood to that contingency, since they specifically provided for a reduced royalty in the event no patent issued within five years. 27 This case does not require us to draw the line between what constitutes abuse of a pending application and what does not. It is clear that whatever role the pending application played in the negotiation of the 5% royalty, it played no part in the contract to pay the 21/2% royalty indefinitely. 28 Our holding in Kewanee Oil Co. puts to rest the contention that federal law pre-empts and renders unenforceable the contract made by these parties. There we held that state law forbidding the misappropriation of trade secrets was not pre-empted by federal patent law. We observed: 29 "Certainly the patent policy of encouraging invention is not disturbed by the existence of another form of incentive to invention. In this respect the two systems [patent and trade secret law] are not and never would be in conflict." 416 U.S., at 484, 94 S.Ct., at 1887. 30 Enforcement of this royalty agreement is even less offensive to federal patent policies than state law protecting trade secrets. The most commonly accepted definition of trade secrets is restricted to confidential information which is not disclosed in the normal process of exploitation. See Restatement of Torts § 757, Comment b, p. 5 (1939). Accordingly, the exploitation of trade secrets under state law may not satisfy the federal policy in favor of disclosure, whereas disclosure is inescapable in exploiting a device like the Aronson keyholder. 31 Enforcement of these contractual obligations, freely undertaken in arm's-length negotiation and with no fixed reliance on a patent or a probable patent grant, will 32 "encourage invention in areas where patent law does not reach, and will prompt the independent innovator to proceed with the discovery and exploitation of his invention. Competition is fostered and the public is not deprived of the use of valuable, if not quite patentable, invention." (Footnote omitted.) 416 U.S., at 485, 94 S.Ct., at 1888. 33 The device which is the subject of this contract ceased to have any secrecy as soon as it was first marketed, yet when the contract was negotiated the inventiveness and novelty were sufficiently apparent to induce an experienced novelty manufacturer to agree to pay for the opportunity to be first in the market. Federal patent law is not a barrier to such a contract. 34 Reversed. 35 Mr. Justice BLACKMUN, concurring in the result. 36 For me, the hard question is whether this case can meaningfully be distinguished from Brulotte v. Thys Co., 379 U.S. 29, 85 S.Ct. 176, 13 L.Ed.2d 99 (1964). There the Court held that a patent licensor could not use the leverage of its patent to obtain a royalty contract that extended beyond the patent's 17-year term. Here Mrs. Aronson has used the leverage of her patent application to negotiate a royalty contract which continues to be binding even though the patent application was long ago denied. 37 The Court, ante, at 265, asserts that her leverage played "no part" with respect to the contingent agreement to pay a reduced royalty if no patent issued within five years. Yet it may well be that Quick Point agreed to that contingency in order to obtain its other rights that depended on the success of the patent application. The parties did not apportion consideration in the neat fashion the Court adopts. 38 In my view, the holding in Brulotte reflects hostility toward extension of a patent monopoly whose term is fixed by statute, 35 U.S.C. § 154. Such hostility has no place here. A patent application which is later denied temporarily discourages unlicensed imitators. Its benefits and hazards are of a different magnitude from those of a granted patent that prohibits all competition for 17 years. Nothing justifies estopping a patent-application licensor from entering into a contract whose term does not end if the application fails. The Court points out, ante, at 263, that enforcement of this contract does not conflict with the objectives of the patent laws. The United States, as amicus curiae, maintains that patent-application licensing of this sort is desirable because it encourages patent applications, promotes early disclosure, and allows parties to structure their bargains efficiently. 39 On this basis, I concur in the Court's holding that federal patent law does not pre-empt the enforcement of Mrs. Aronson's contract with Quick Point.

910

440 U.S. 301 99 S.Ct. 1123 59 L.Ed.2d 333 DETROIT EDISON COMPANY, Petitioner,v.NATIONAL LABOR RELATIONS BOARD. No. 77-968. Argued Nov. 6, 1978. Decided March 5, 1979. Syllabus Petitioner employer, in response to a request made by a Union in connection with arbitration of a grievance filed on behalf of employees in a bargaining unit, supplied the Union with certain information pertaining to petitioner's employee psychological aptitude testing program under which certain unit employees had been rejected for certain job openings because of their failure to receive "acceptable" test scores. However, petitioner refused to release the actual test questions, the actual employee answer sheets, and the scores linked with the names of the employees who received them, maintaining that complete confidentiality of these materials was necessary to insure the future integrity of the tests and to protect the examinees' privacy interests. Petitioner did offer to turn over the scores of any employee who signed a waiver releasing petitioner's psychologist from his pledge of confidentiality, but the union declined to seek such releases. In unfair labor practice proceedings against petitioner—based on the union's charge that petitioner had violated its duty to bargain collectively under § 8(a)(5) of the National Labor Relations Act by refusing to provide relevant information needed by the union for the proper performance of its duties as the employees' bargaining representative—the National Labor Relations Board concluded that all the requested items were relevant to the grievance and ordered petitioner to turn over all of the materials directly to the union, subject to certain restrictions on the union's use of the information. The Board rejected petitioner's request that, in order to preserve test secrecy, the tests and answer sheets be turned over to an industrial psychologist selected by the union. The Board and the Court of Appeals, in its decision enforcing the Board's order, both rejected petitioner's claim that employee privacy and the professional obligations of petitioner's industrial psychologists should outweigh the Union's request for the employee-linked scores. Held: 1. The Board abused its remedial discretion in ordering petitioner to turn over the test battery and answer sheets directly to the union. Pp. 312-317. (a) A union's bare assertion that it needs information to process a grievance does not automatically oblige the employer to supply all the information in the manner requested. The duty to supply information under § 8(a)(5) turns upon "the circumstances of the particular case," NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153, 76 S.Ct. 753, 756, 100 L.Ed. 1027, and much the same may be said for the type of disclosure that will satisfy that duty. Pp. 314-315. (b) Petitioner's interest in test secrecy has been abundantly demonstrated on the record, which established petitioner's freedom under the collective-bargaining contract to use aptitude tests as a criterion for promotion, the empirical validity of the tests, and the relationship between secrecy and test validity. The Board has cited no principle of national labor policy to warrant a remedy that would unnecessarily disserve this interest. P. 315. (c) The remedy selected by the Board, barring the union from taking any action that might cause the tests to fall into the hands of employees who have taken or are likely to take them, does not adequately protect the security of the tests. There is substantial doubt whether the union, which was not a party to the enforcement proceeding in the Court of Appeals, would be subject to a contempt citation were it to ignore the restrictions. Moreover, the union clearly would not be accountable in either contempt or unfair labor practice proceedings for the most realistic vice inherent in the Board's remedy—the danger of inadvertent leaks. Pp. 315-316. 2. Petitioner's willingness to disclose test scores linked with the employee names only upon receipt of consents from the examinees satisfied petitioner's statutory obligations under § 8(a)(5). In light of the sensitive nature of testing information, the minimal burden that compliance with petitioner's offer would have placed on the union, and the total absence of evidence that petitioner had fabricated concern for employee confidentiality only to frustrate the union in the discharge of its responsibilities, the Board's conclusion that petitioner, in resisting an unconsented-to disclosure of individual test results, violated the statutory obligation to bargain in good faith cannot be sustained. Accordingly, the order requiring petitioner unconditionally to disclose the employee scores to the union was erroneous. Pp. 317-320. 6 Cir., 560 F.2d 722, vacated and remanded. John A. McGuinn, Washington, D. C., for petitioner. Norton J. Come, Washington, D. C., for respondent. Mr. Justice STEWART delivered the opinion of the Court. 1 The duty to bargain collectively, imposed upon an employer by § 8(a)(5) of the National Labor Relations Act,1 includes a duty to provide relevant information needed by a labor union for the proper performance of its duties as the employees' bargaining representative. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027; NLRB v. Acme Industrial Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495. In this case an employer was brought before the National Labor Relations Board to answer a complaint that it had violated this statutory duty when it refused to disclose certain information about employee aptitude tests requested by a union in order to prepare for arbitration of a grievance. The employer supplied the union with much of the information requested, but refused to disclose three items: the actual test questions, the actual employee answer sheets, and the scores linked with the names of the employees who received them.2 The Board, concluding that all the items requested were relevant to the grievance and would be useful to the union in processing it, ordered the employer to turn over all of the materials directly to the union, subject to certain restrictions on the union's use of the information. 218 N.L.R.B. 1024 (1975). A divided Court of Appeals for the Sixth Circuit ordered enforcement of the Board's order without modification. 560 F.2d 722 (1977). 2 We granted certiorari to consider an important question of federal labor law. 435 U.S. 941, 98 S.Ct. 1520, 55 L.Ed.2d 537. This is apparently the first case in which the Board has held that an employer's duty to provide relevant information to the employees' bargaining representative includes the duty to disclose tests and test scores achieved by named employees in a statistically validated psychological aptitude testing program administered by the employer. Psychological aptitude testing is a widely used employee selection and promotion device in both private industry and government. Test secrecy is concededly critical to the validity of any such program, and confidentiality of scores is undeniably important to the examinees. The underlying question is whether the Board's order, enforced without modification by the Court of Appeals, adequately accommodated these concerns. 3 * The petitioner, Detroit Edison Co. (hereinafter Company), is a public utility engaged in the generation and distribution of electric power in Michigan. Since about 1943, the Utility Workers Union of America, Local 223, AFL-CIO (Union) has represented certain of the Company's employees. At the time of the hearing in this case, one of the units represented by the Union was a unit of operating and maintenance employees at the Company's plant in Monroe, Mich. The Union was certified as the exclusive bargaining agent for employees in that unit in 1971, and it was agreed that these employees would be covered by a pre-existing collective-bargaining agreement, one of the provisions of which specified that promotions within a given unit were to be based on seniority "whenever reasonable qualifications and abilities of the employees being considered are not significantly different." Management decisions to bypass employees with greater seniority were subject to the collective agreement's grievance machinery, including ultimate arbitration, whenever a claim was made that the bypass had been arbitrary or discriminatory. 4 The aptitude tests at issue were used by the Company to screen applicants for the job classification of "Instrument Man B." An Instrument Man is responsible for installing, maintaining, repairing, calibrating, testing, and adjusting the powerplant instrumentation. The position of Instrument Man B, although at the lowest starting grade under the contract and usually requiring on-the-job training, was regarded by the Company as a critical job because it involved activities vital to the operation of the plant. 5 The Company has used aptitude tests as a means of predicting job performance since the late 1920's or early 1930's.3 In the late 1950's, the Company first began to use a set of standardized tests (test battery) as a predictor of performance on the Instrument Man B job. The battery, which had been "validated" for this job classification,4 consisted of the Wonderlic Personnel Test, the Minnesota Paper Form Board (MPFB), and portions of the Engineering and Physical Science Aptitude Test (EPSAT). All employees who applied for acceptance into the Instrument Man classification were required to take this battery. Three adjective scores were possible: "not recommended," "acceptable," and "recommended."5 6 In the late 1960's, the technical engineers responsible for the Company's instrumentation department complained that the test battery was not an accurate screening device. The Company's industrial psychologists, accordingly, performed a revalidation study of the tests. As a result, the Personnel Test was dropped, and the scoring system was changed. Instead of the former three-tier system, two scores were possible under the revised battery: "not recommended" and "acceptable." The gross test score required for an "acceptable" rating was raised to 10.3, a figure somewhat lower than the former score required for a "recommended" but higher than the "acceptable" score used previously. 7 The Company administered the tests to applicants with the express commitment that each applicant's test score would remain confidential. Tests and test scores were kept in the offices of the Company's industrial psychologists who, as members of the American Psychological Association, deemed themselves ethically bound not to disclose test information to unauthorized persons.6 Under this policy, the Company's psychologists did not reveal the tests or report actual test numerical scores to management or to employee representatives. The psychologists would, however, if an individual examinee so requested, review the test questions and answers with that individual. 8 The present dispute had its beginnings in 1971 when the Company invited bids from employees to fill six Instrument Man B openings at the Monroe plant. Ten Monroe unit employees applied. None received a score designated as "acceptable," and all were on that basis rejected. The jobs were eventually filled by applicants from outside the Monroe plant bargaining unit. 9 The Union filed a grievance on behalf of the Monroe applicants, claiming that the new testing procedure was unfair and that the Company had bypassed senior employees in violation of the collective-bargaining agreement. The grievance was rejected by the Company at all levels, and the Union took it to arbitration. In preparation for the arbitration, the Union requested the Company to turn over various materials related to the Instrument Man B testing program. The Company furnished the Union with copies of test-validation studies performed by its industrial psychologists and with a report by an outside consultant on the Company's entire testing program. It refused, however, to release the actual test battery, the applicants' test papers, and their scores, maintaining that complete confidentiality of these materials was necessary in order to insure the future integrity of the tests and to protect the privacy interests of the examinees. 10 The Union then filed with the Board the unfair labor practice charge involved in this case. The charge alleged that the information withheld by the Company was relevant and necessary to the arbitration of the grievance, "including the ascertainment of promotion criteria, the veracity of the scoring and grading of the examination and the testing procedures, and the job relatedness of the test(s) to the Instrument Man B classification." 11 After filing the unfair labor practice charge, the Union asked the arbitrator to order the Company to furnish the materials at issue. He declined on the ground that he was without authority to do so. In view of the pendency of the charges before the Board, the parties proceeded with the arbitration on the express understanding that the Union could reopen the case should it ultimately prevail in its claims. During the course of the arbitration, however, the Company did disclose the raw scores of those who had taken the test, with the names of the examinees deleted. In addition, it provided the Union with sample questions indicative of the types of questions appearing on the test battery and with detailed information about its scoring procedures. It also offered to turn over the scores of any employee who would sign a waiver releasing the Company psychologist from his pledge of confidentiality. The Union declined to seek such releases. 12 The arbitrator's decision found that the Company was free under the collective agreement to establish minimum reasonable qualifications for the job of Instrument Man and to use aptitude tests as a measure of those qualifications; that the Instrument Man B test battery was a reliable and fair test in the sense that its administration and scoring had been standardized; and that the test had a "high degree of validity" as a predictor of performance in the job classification for which it was developed. He concluded that the 10.3 score created a "presumption of significant difference under the contract."7 He also expressed the view that the Union's position in the arbitration had not been impaired because of lack of access to the actual test battery. 13 Several months later the Board issued a complaint based on the Union's unfair labor practice charge. At the outset of the hearing before the Administrative Law Judge, the Company offered to turn over the test battery and answer sheets to an industrial psychologist selected by the Union for an independent evaluation, stating that disclosure to an intermediary obligated to preserve test secrecy would satisfy its concern that direct disclosure to the Union would inevitably result in dissemination of the questions. The Union rejected this compromise. 14 The Administrative Law Judge found that notwithstanding the conceded statistical validity of the test battery, the tests and scores would be of probable relevant help to the Union in the performance of its duties as collective-bargaining agent. He reasoned that the Union, having had no access to the tests, had been "deprived of any occasion to check the tests for built-in bias, or discriminatory tendency, or any opportunity to argue that the tests or the test questions are not well suited to protect the employees' rights, or to check the accuracy of the scoring." The Company's claim that employees' privacy might be abused by disclosure to the Union of the scores he rejected as insubstantial. Accordingly, he recommended that the Company be ordered to turn over the test scores directly to the Union. He did, however, accept the Company's suggestion that the test battery and answer sheets be disclosed to an expert intermediary. Disclosure of these materials to lay Union representatives, he reasoned, would not be likely to produce constructive results, since the tests could be properly analyzed only by professionals.8 The Union was to be given "the right to see and study the tests," and to use the information therein "to the extent necessary to process and arbitrate the grievances," but not to disclose the information to third parties other than the arbitrator. 15 The Company specifically requested the Board "to adopt that part of the order which requires that tests be turned over to a qualified psychologist," but excepted to the requirement that the employee-linked scores be given to the Union. It contended that the only reason asserted by the Union in support of its request for the scores—to check their arithmetical accuracy—was not sufficient to overcome the principle of confidentiality that underlay its psychological testing program. The Union filed a cross exception to the requirement that it select a psychologist, arguing that it should not be forced to "employ an outsider for what is normal grievance and Labor-Management work." 16 The Board, and the Court of Appeals for the Sixth Circuit in its decision enforcing the Board's order, ordered the Company to turn over all the material directly to the Union. They concluded that the Union should be able to determine for itself whether it needed a psychologist to interpret the test battery and answer sheets. Both recognized the Company's interest in maintaining the security of the tests, but both reasoned that appropriate restrictions on the Union's use of the materials would protect this interest.9 Neither was receptive to the Company's claim that employee privacy and the professional obligations of the Company's industrial psychologists should outweigh the Union request for the employee-linked scores. II 17 Because of the procedural posture of this case, the questions that have been preserved for our review are relatively narrow. The Company has presented a lengthy argument designed to demonstrate that the Board and the Court of Appeals misunderstood the premises of its aptitude testing program and thus erred in concluding that the information requested by the Union would be of any actual or potential relevance to the performance of its duties. This basic challenge, insofar as it concerns the test battery and answer sheets, is foreclosed, however, by § 10(e) of the Act because of the Company's failure to raise it before the Board.10 18 Two issues, then, are presented on this record. The first concerns the Board's choice of a remedy for the Company's failure to disclose copies of the test battery and answer sheets. The second, and related, question concerns the propriety of the Board's conclusion that the Company committed an unfair labor practice when it refused to disclose, without a written consent from the individual employees, the test scores linked with the employee names. A. 19 We turn first to the question whether the Board abused its remedial discretion when it ordered the Company to deliver directly to the Union the copies of the test battery and answer sheets. The Company's position, stripped of the argument that it had no duty at all to disclose these materials, is as follows: It urges that disclosure directly to the Union would carry with it a substantial risk that the test questions would be disseminated. Since it spent considerable time and money validating the Instrument Man B tests and since its tests depend for reliability upon the Examinee's lack of advance preparation, it contends that the harm of dissemination would not be trivial. The future validity of the tests is tied to secrecy, and disclosure to employees would not only threaten the Company's investment but would also leave the Company with no valid means of measuring employee aptitude. The Company also maintains that its interest in preserving the security of its tests is consistent with the federal policy favoring the use of validated, standardized, and nondiscriminatory employee selection procedures reflected in the Civil Rights Act of 1964.11 20 In his brief on behalf of the Board, the Solicitor General has acknowledged the existence of a strong public policy against disclosure of employment aptitude tests and, at least in the context of civil service testing, has conceded that "[g]overnmental recruitment would be seriously disputed and public confidence eroded if the integrity of . . . tests were compromised." Indeed, he has also acknowledged that the United States Civil Service Commission "has been zealous to guard against undue disclosure and has successfully contended for protective orders which limit exposure of the tests to attorneys and professional psychologists with restrictions on copying or disseminating test materials." He urges, however, that the Board's order can be justified on the grounds that the Union's institutional interests militate against improper disclosure, and that the specific protective provisions in the Board's order will safeguard the integrity of the tests.12 He emphasizes the deference generally accorded to "the considered judgment of the Board, charged by Congress with special responsibility for effectuating labor policy." We do not find these justifications persuasive. 21 A union's bare assertion that it needs information to process a grievance does not automatically oblige the employer to supply all the information in the manner requested. The duty to supply information under § 8(a)(5) turns upon "the circumstances of the particular case," NLRB v. Truitt Mfg. Co., 351 U.S., at 153, 76 S.Ct., at 756, and much the same may be said for the type of disclosure that will satisfy that duty. See, e. g., American Cyanamid Co., 129 N.L.R.B. 683, 684 (1960). Throughout this proceeding, the reasonableness of the Company's concern for test secrecy has been essentially conceded. The finding by the Board that this concern did not outweigh the Union's interest in exploring the fairness of the Company's criteria for promotion did not carry with it any suggestion that the concern itself was not legitimate and substantial.13 Indeed, on this record—which has established the Company's freedom under the collective contract to use aptitude tests as a criterion for promotion, the empirical validity of the tests, and the relationship between secrecy and test validity—the strength of the Company's concern has been abundantly demonstrated. The Board has cited no principle of national labor policy to warrant a remedy that would unnecessarily disserve this interest, and we are unable to identify one. 22 It is obvious that the remedy selected by the Board does not adequately protect the security of the tests. The restrictions barring the Union from taking any action that might cause the tests to fall into the hands of employees who have taken or are likely to take them are only as effective as the sanctions available to enforce them. In this instance, there is substantial doubt whether the Union would be subject to a contempt citation were it to ignore the restrictions. It was not a party to the enforcement proceeding in the Court of Appeals, and the scope of an enforcement order under § 10(e) is limited by Fed.Rule Civ.Proc. 65(d) making an injunction binding only "upon the parties to the action . . . and upon those persons in active concert or participation with them . . . ." See Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14, 65 S.Ct. 478, 481, 89 L.Ed. 661. The Union, of course, did participate actively in the Board proceedings, but it is debatable whether that would be enough to satisfy the requirement of the Rule. Further, the Board's regulations contemplate a contempt sanction only against a respondent, 29 CFR §§ 101.9, 101.14-101.15 (1978), and the initiation of contempt proceedings is entirely within the discretion of the Board's General Counsel. Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 269, 60 S.Ct. 561, 565, 84 L.Ed. 738. Effective sanctions at the Board level are similarly problematic. To be sure, the Board's General Counsel could theoretically bring a separate unfair labor practice charge against the Union, but he could also in his unreviewable discretion refuse to issue such a complaint. See 29 U.S.C. § 153(d); Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912, 16 L.Ed.2d 680. Moreover, the Union clearly would not be accountable in either contempt or unfair labor practice proceedings for the most realistic vice inherent in the Board's remedy—the danger of inadvertent leaks. 23 We are mindful that the Board is granted broad discretion in devising remedies to undo the effects of violations of the Act, NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346, 73 S.Ct. 287, 288, 97 L.Ed. 377; Fibreboard Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 405, 13 L.Ed.2d 233, and of the principle that in the area of federal labor law "the relation of remedy to policy is peculiarly a matter for administrative competence." Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271. Nonetheless, the rule of deference to the Board's choice of remedy does not constitute a blank check for arbitrary action. The role that Congress in § 10(e) has entrusted to the courts in reviewing the Board's petitions for enforcement of its orders is not that of passive conduit. See Fibreboard Corp. v. NLRB, supra, 379 U.S., at 216, 85 S.Ct., at 405. The Board in this case having identified no justification for a remedy granting such scant protection to the Company's undisputed and important interests in test secrecy, we hold that the Board abused its discretion in ordering the Company to turn over the test battery and answer sheets directly to the Union. B 24 The dispute over Union access to the actual scores received by named employees is in a somewhat different procedural posture, since the Company did on this issue preserve its objections to the basic finding that it had violated its duty under § 8(a)(5) when it refused disclosure. The Company argues that even if the scores were relevant to the Union's grievance (which it vigorously disputes), the Union's need for the information was not sufficiently weighty to require breach of the promise of confidentiality to the examinees, breach of its industrial psychologists' code of professional ethics, and potential embarrassment and harassment of at least some of the examinees. The Board responds that this information does satisfy the appropriate standard of "relevance," see NLRB v. Acme Industrial Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed. 495, and that the Company having "unilaterally" chosen to make a promise of confidentiality to the examinees, cannot rely on that promise to defend against a request for relevant information. The professional obligations of the Company's psychologists, it argues, must give way to paramount federal law. Finally, it dismisses as speculative the contention that employees with low scores might be embarrassed or harassed. 25 We may accept for the sake of this discussion the finding that the employee scores were of potential relevance to the Union's grievance, as well as the position of the Board that the federal statutory duty to disclose relevant information cannot be defeated by the ethical standards of a private group. Cf. Nash v. Florida Industrial Comm'n, 389 U.S. 235, 239, 88 S.Ct. 362, 366, 19 L.Ed.2d 438. Nevertheless we agree with the Company that its willingness to disclose these scores only upon receipt of consents from the examinees satisfied its statutory obligations under § 8(a)(5). The Board's position appears to rest on the proposition that union interests in arguably relevant information must always predominate over all other interests, however, legitimate. But such an absolute rule has never been established,14 and we decline to adopt such a rule here.15 There are situations in which an employer's conditional offer to disclose may be warranted. This we believe is one. 26 The sensitivity of any human being to disclosure of information that may be taken to bear on his or her basic competence is sufficiently well known to be an appropriate subject of judicial notice.16 There is nothing in this record to suggest that the Company promised the examinees that their scores would remain confidential in order to further parochial concerns or to frustrate subsequent Union attempts to process employee grievances. And it has not been suggested at any point in this proceeding that the Company's unilateral promise of confidentiality was in itself violative of the terms of the collective-bargaining agreement. Indeed, the Company presented evidence that disclosure of individual scores had in the past resulted in the harassment of some lower scoring examinees who had, as a result, left the Company. 27 Under these circumstances, any possible impairment of the function of the Union in processing the grievances of employees is more than justified by the interests served in conditioning the disclosure of the test scores upon the consent of the very employees whose grievance is being processed. The burden on the Union in this instance is minimal. The Company's interest in preserving employee confidence in the testing program is well founded. 28 In light of the sensitive nature of testing information, the minimal burden that compliance with the Company's offer would have placed on the Union, and the total absence of evidence that the Company had fabricated concern for employee confidentiality only to frustrate the Union in the discharge of its responsibilities, we are unable to sustain the Board in its conclusion that the Company, in resisting an unconsented-to disclosure of individual test results, violated the statutory obligation to bargain in good faith. See NLRB v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027. Accordingly, we hold that the order requiring the Company unconditionally to disclose the employee scores to the Union was erroneous. 29 The judgment is vacated, and the case remanded to the Court of Appeals for the Sixth Circuit for further proceedings consistent with this opinion. 30 It is so ordered. 31 Mr. Justice STEVENS, concurring in part and dissenting in part. 32 This is a close case on both issues. With respect to the test battery and answer sheets, I agree with Mr. Justice WHITE, that we should respect the Board's exercise of its broad remedial discretion. On the other hand, I agree with the Court that the Union should not be permitted to invade the individual employees' interest in the confidentiality of their test scores without their consent. Accordingly, I join all but Part II-A of the Court's opinion and also join Part I of Mr. Justice WHITE's dissent. 33 Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, and with whom Mr. Justice STEVENS joins as to Part I, dissenting. 34 The Court today disapproves enforcement of an order of the National Labor Relations Board essentially on the theory that the order fails to accommodate properly the competing interests of the Union, individual employees, and the employer. We have formerly stressed, however, that " 'balancing . . . conflicting legitimate interests . . . to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.' " Beth Israel Hospital v. NLRB, 437 U.S. 483, 501, 98 S.Ct. 2463, 2474, 57 L.Ed.2d 370 (1978), quoting NLRB v. Truck Drivers, 353 U.S. 87, 96, 77 S.Ct. 643, 647, 1 L.Ed.2d 676 (1957). Because I perceive no warrant to disturb the balance the Board has struck in this case, I dissent. 35 * As the Court holds, the relevance of the test questions and answer sheets to the performance of the Union's statutory duties is established for present purposes by the Company's failure to press the issue properly before the Board. The Court, moreover, does not explicitly upset the Board's determination that the Company's failure to release those materials to the Union amounted to an unfair labor practice. The only issue here regarding the test questions and answer sheets is "whether the Board abused its remedial discretion when it ordered the Company to deliver directly to the Union the copies of the test battery and answer sheets." Ante, at 312-313 (emphasis added). If, however, the basic impropriety of the Company's failure to divulge the materials to the Union is settled, the Board's remedial authority to compel conditional disclosure is abundantly clear. The Court is quite wrong in holding that the Board's order exceeded the agency's "broad discretionary [remedial power]." Fibreboard Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 405, 13 L.Ed.2d 233 (1964). For it is too well established that a decree fashioned by the Board to remedy violations of the Act "will not be disturbed 'unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.' " Ibid., quoting Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943). 36 The Court nevertheless asserts that the Board erred in directing the Company to release the test questions and answer sheets directly to the Union with no more formal assurance that secrecy will be preserved than that afforded by the Board's protective order. Release to the Union, it is said, risks imminent general disclosure without any apparent justification. Presumably, the test questions and answer sheets ought to be divulged to a psychologist instead. In so concluding, the majority—in my view—unduly discounts the Board's own appraisal of the jeopardy to the Company's interests and of the substantiality of countervailing concerns. A. 37 The Board ordered release of the test questions and answer sheets only on condition that the Union preserve their secrecy. Specifically, the Union was admonished not to copy the materials or to make them available to potential test takers or to others who might advise the employees of their content. The Court scoffs at the order, however, on the ground that "there is substantial doubt whether the Union would be subject to a contempt citation were it to ignore the restrictions." Ante, at 315.1 But the Board placed no reliance on contempt sanctions when it directed release, and there is scant reason for rejecting the Board's judgment that sanctions of that sort are unnecessary. The Board, in my view, had forceful and independent grounds for concluding that the Union would respect the confidentiality of the materials and take due precautions against inadvertent exposure. 38 The Union has enjoyed a long and extensive relationship with the employer2 that it would be loath to jeopardize by intentionally breaching the conditions of release. Cf. Fawcett Printing Corp., 201 N.L.R.B. 964, 974 (1973). Even if the Union had any incentive to publicize the examination questions, its ardor would be dampened by the likely long-term consequences of that course; the Board exercises continuing authority over the Union's affairs, and it may well approve the Company's future insistence on rigorous secrecy, thus delimiting the Union's subsequent latitude in grievance processing.3 Moreover, dissemination of test materials to potential test takers might impair the interests of those employees who qualify fairly for a desired position, thus inviting their disapprobation.4 39 The Company acknowledges, in any event, see Tr. of Oral Arg. 12, and the Court agrees, see ante, at 316, that the real concern is with inadvertent disclosure. Yet there is no basis for assuming that the Union would handle the materials so cavalierly as to chance accidental disclosure, given the gravity with which the issue has been treated by all concerned. Thus, in the circumstances of this case, the Board had ample grounds to expect Union cooperation. And this Court is ill-equipped to fault the Board on a matter so plainly summoning the Board's keen familiarity with industrial behavior. B 40 Besides overrating the hazards of direct release to the Union of the test questions, the Court undervalues the interests vindicated by that procedure. The Court asserts simply that the "Board has cited no principle of national labor policy to warrant a remedy that would unnecessarily disserve [the Company's interest in maintaining secrecy], and we are unable to identify one." Ante, at 315. The Board observed in its decision, however, that "[a]s the bargaining agent of the employees involved, it is the Union which is entitled to information which is necessary to its role as bargaining agent in the administration of the collective-bargaining agreement." 218 N.L.R.B. 1024 (1975). The employer's "accommodation"—releasing the test questions solely to a psychologist—which the Court tacitly endorses, is fundamentally at odds with the basic structure of the bargaining process. Congress has conferred paramount representational responsibilities and obligations on the employees' freely chosen bargaining agent. Yet the Company's alternative would install a third-party psychologist as a partner, if not primary actor, in promotion-related grievance proceedings. 41 The services of a professional psychologist, furthermore, may be totally unnecessary. Suspected difficulties with the test questions may necessitate consultation with a psychologist, but resort to such assistance is not so foreordained as to justify compulsory retention of a psychologist as a condition to availability of materials pertinent to the processing of a grievance. In fact, the attendant expense may well encourage the Union to forgo requesting the information, despite its potential utility. Confronted with these concerns, the Board reasonably undertook to ensure that primary responsibility for grievance evaluation and processing remains where Congress put it, and that the Union's access to pertinent information remains unimpeded by cumbersome or prohibitive obstacles. II 42 The Court further concludes that the Company properly declined to disclose the examinees' test scores, associated with the employees' names, absent consent by the examinees themselves.5 In the majority's view, the Board accorded too little weight to the interests of individual employees in the confidentiality of their test results and too much significance to the "minimal" burden on the Union that would result from a consent requirement. In this respect, too, the Court inappropriately substitutes its judgment for the reasonable determination of the Board. 43 Preliminarily, it is notable that the confidentiality of the test results was significantly compromised by circumstances independent of the Board's disclosure order at issue herein. The Union, and the employees generally, were aware that the 10 aggrieved job applicants received scores below 10.3—the cutoff point. Moreover, in consequence of the arbitrator's ruling, it became generally evident that 3 of the 10 applicants had earned scores falling between 9.3 and 10.3 and that the remaining 7 had scored below 9.3. See 218 N.L.R.B., at 1032. Thus, the real question here is whether the Board was unreasonable in concluding that the marginal intrusion on confidentality accompanying full disclosure to the Union was so profound as to require the withholding of that information from the statutory bargaining representative. 44 Significantly, the employer has presented no evidence that the employees involved actually oppose disclosure. Nor has the Company demonstrated any palpable basis for believing that release will result in harassment or ridicule of the examinees. Cf. United Aircraft Corp. v. NLRB, 434 F.2d 1198, 1207 (CA2 1970), cert. denied, 401 U.S. 993, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971). The Court notes that "the Company presented evidence that disclosure of individual scores had in the past resulted in the harassment of some lower scoring examinees who had, as a result, left the Company." Ante, at 319. But that evidence consisted of an isolated representation by a Company psychologist concerning events occurring "many, many years ago." App. 84. And the Administrative Law Judge evidently dismissed the account in concluding that the Company had "produced no probative evidence that the employees' sensitivities are likely to be abused by disclosure of the scores." 218 N.L.R.B., at 1035.6 When an employer resists the divulgence of materials relevant to employee grievances, I would think that the employer has the burden of establishing any justification for nondisclosure. The Court, however, presumes what yet remains to be shown. 45 Moreover, there is no basis in the governing statute or regulations for attributing ascendant importance to the employees' confidentiality interests. Whether confidentiality considerations should prevail in the circumstances of this case is, as the Company and majority agree, principally a matter of policy. But it cannot be gainsaid that the Board is the body charged in the first instance with the task of discerning and effectuating congressional policies in the labor-management area. Its judgments in that regard should not be lightly overturned. Yet the Court strikes its own balance according decisional weight to concerns having no asserted or apparent foundation in the statute it purports to construe or in other applicable legislation. 46 The Court lightly dismisses the Union's interest in receipt of the examinees' identified scores, with or without consent, by declaring the burdens involved as "minimal." Ante, at 319. The Administrative Law Judge noted, however, that the "Union's obligation is to represent the unit of employees as a whole[; the Company] may not frustrate this by requiring the Union to secure the consent of individuals in the unit in order to secure information relevant and reasonably necessary to the enforcement of the collective-bargaining agreement which exists for the benefit of all." 218 N.L.R.B., at 1036.7 Were individual examinees to withhold consent, and thus prevent the Union from scrutinizing their scores in light of their demographic and occupational characteristics, the Union might be inhibited in its efforts to discern patterns or anomalies indicating bias in the operation of the tests.8 Thus, the Board directed divulgence of the scores to the employees' statutory bargaining representative to enable it effectively to fulfill its vital statutory functions. Such a limited intrusion, cf. Whalen v. Roe, 429 U.S. 589, 602, 97 S.Ct. 869, 878, 51 L.Ed.2d 64 (1977), for the purpose of vindicating grave statutory policies, hardly signals an occasion for judicial intervention.9 III 47 In sum, I think the Board's resolution is sound and that the Sixth Circuit's judgment enforcing it should be sustained. I do not mean to suggest that the considerations advanced by the Company are without substance or that this case does not present a "difficult and delicate" task of balancing competing claims. Cf. Beth Israel Hospital v. NLRB, 437 U.S., at 501, 98 S.Ct., at 2474. But, by virtue of that, this is precisely the kind of case in which "considerable deference" is owed the Board. NLRB v. Iron Workers, 434 U.S. 335, 350, 98 S.Ct. 651, 660, 54 L.Ed.2d 586 (1978); see NLRB v. Insurance Agents, 361 U.S. 477, 499, 80 S.Ct. 419, 432, 4 L.Ed.2d 454 (1960); NLRB v. Truck Drivers, 353 U.S., at 96, 77 S.Ct., at 647. Importantly, "[h]ere, as in other cases, we must recognize the Board's special function of applying the general provisions of the Act to the complexities of industrial life, . . . and of '[appraising] carefully the interests of both sides of any labor-management controversy in the diverse circumstances of particular cases' from its special understanding of 'the actualities of industrial relations.' " NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1150, 10 L.Ed.2d 308 (1963), quoting NLRB v. Steelworkers, 357 U.S. 357, 362-363, 78 S.Ct. 1268, 1271, 2 L.Ed.2d 1383 (1958). I think it unjustified to depart from our accustomed mode of review. Accordingly, I respectfully dissent. 1 29 U.S.C. §§ 151-158. 2 The arbitration was subsequently held without the benefit of this information, subject to the stipulation that the union could reopen the award if a court ordered disclosure of these materials. See infra, at 308. 3 Aptitude tests are not designed to measure current knowledge and skills relevant to a job, but, instead, to measure the examinee's ability to acquire such knowledge and skills. 4 The Company used the empirical method of establishing validity; that is, it analyzed the requirements of the Instrument Man B job and developed objective measures by which supervisors were to rate the performance of employees in this job classification. Incumbents were given the preselected tests, and their scores were then compared with the supervisory ratings. A statistically significant correlation between the scores and the ratings was demonstrated. Both the Company and the Union were named defendants in a lawsuit in which various Company employment practices, including aptitude tests used for other job classifications, were found to violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See Stamps v. Detroit Edison Co., 365 F.Supp. 87, 118-119 (ED Mich.1973), rev'd as to remedy, EEOC v. Detroit Edison Co., 515 F.2d 301 (CA6 1975), vacated and remanded, Detroit Edison v. EEOC, 431 U.S. 951, 97 S.Ct. 2669, 53 L.Ed.2d 267 (1977), superseding order entered, EEOC v. Detroit Edison Co., 17 E.P.D. ¶ 8583 (ED Mich. 1978), notice of appeal filed, Aug. 24, 1978. The issues in the present unfair labor practice litigation are distinct, and nothing in this opinion, particularly use of such words as "valid" or "validate," is to be understood as bearing in any way on possible Title VII questions. Cf. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425-436, 95 S.Ct. 2362, 2375-2380, 45 L.Ed.2d 280. 5 During the decade or so that this test battery was in use, only one grievance involving it was filed. In that instance, a senior employee who had received an "acceptable" score was bypassed for acceptance in favor of a junior employee who had received a higher "recommended" score. The grievance was upheld. 6 See American Psychological Assn., Standards for Educational and Psychological Tests (1974). Standard J-2 prohibits disclosure of aptitude tests and test scores to unauthorized individuals. See also Ethical Standards of Psychologists (1977 rev.). Principle 5 of the Ethical Standards imposes an obligation on the psychologist to safeguard "information about an individual that has been obtained . . . in the course of . . . teaching, practice, or investigation." Subsection (b) of the Principle permits the psychologist to discuss evaluative data concerning employees but only if the "data [is] germane to the purposes of the evaluation" and "every effort" has been made to "avoid undue invasion of privacy." 7 The arbitrator did conclude, however, that the 10.3 cutoff score was too high because it eliminated some applicants who would probably succeed in the Instrument Man job. Based on the Company's validation statistics, he concluded that seniority would be undermined unless those applicants who had received scores of between 9.3 and 10.3 were given an opportunity to demonstrate that they had other qualifications that might offset their somewhat lower scores. Three applicants were in this group. As a result of the evaluation ordered by the Arbitrator, one was promoted. 8 The Company had consistently maintained that disclosure to the Union would serve no purpose. It contended that the validity of the tests depended upon a statistical determination that they were accurate predictors of future job performance. Lay examination of the questions, it asserted, could only determine whether the questions were on their face related to the job. 9 The Board, although it ordered the Company to supply the tests and answer sheets directly to the Union, incorporated by reference the Administrative Law Judge's restrictions on the Union's use of the materials. Under those restrictions, the Union was given the right "to use the tests and the information contained therein to the extent necessary to process and arbitrate the grievances, but not to copy the tests, or otherwise use them for the purpose of disclosing the tests or the questions to employees who have in the past, or who may in the future take these tests, or to anyone (other than the arbitrator) who may advise the employees of the contents of the tests." After the conclusion of the arbitration, the Union was required to return "all copies of the battery of tests" to the Company. The Court of Appeals, in enforcing the Board's order, stated that the "restrictions on use of the materials and obligation to return them to Detroit Edison are part of the decision and order which we enforce." 560 F.2d 722, 726. 10 29 U.S.C. § 160(e). Section 10(e) precludes a reviewing court from considering an objection that has not been urged before the Board, "unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." The Board enforces a similar procedural limitation through a rule providing that any exception to a finding of the Administrative Law Judge not specifically urged before the Board "shall be deemed to have been waived." 29 CFR § 102.46(b) (1978). The rule serves a sound purpose, and unless a party's neglect to press an exception before the Board is excused by the statutory "extraordinary circumstances" exception or unless the Board determination at issue is patently in excess of its authority, we are bound by it. See, e. g., NLRB v. Ochoa Fertilizer Corp., 368 U.S. 318, 322, 82 S.Ct. 344, 347, 7 L.Ed.2d 312. The Company has justified it failure to object on the ground that it had "no practical reason" to challenge the portion of the Administrative Law Judge's recommendation adopting its suggestion that the tests and answer sheets be disclosed to an intermediary. If this ground were accepted as an "extraordinary circumstance," however, little would be left of the statutory exception. In any case, the Company's "practical" reason disappeared when it again failed to challenge the finding of relevance after the Union had filed a cross exception urging that direct disclosure be ordered. Moreover, much of the Company's challenge to relevancy is based upon the arbitrator's findings and conclusion that examination of these materials would prove little. We do not question the arbitrator's interpretation of the collective agreement. Nonetheless, the parties agreed not to be bound by the arbitrator's determination of relevance, the arbitrator accepted this condition, and the Board concluded that the Union could properly invoke its jurisdiction on these terms. This is not to say that the arbitral award itself is irrelevant to this controversy. The arbitration record and award were before the Administrative Law Judge, and we do not understand the Board to have disturbed the arbitrator's resolution of the contract issues peculiarly within his competence. Cf. NLRB v. Acme Industrial Co., 385 U.S. 432, 436-437, 87 S.Ct. 565, 568, 17 L.Ed.2d 495. 11 42 U.S.C. § 2000e et seq. The Company places particular emphasis on § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), and the agency guidelines promulgated thereunder. Indeed, it has argued that the guidelines are violated by the Board's order directing disclosure to the employee representative. With this we cannot agree. Section 703(h) permits an employer to "give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended, or used to discriminate because of race, color, religion, sex or national origin." Pursuant to § 703(h), specific guidelines on employee testing programs have been issued. See Equal Employment Opportunity Comm'n, Guidelines on Employee Selection Procedures, 29 CFR § 1607.1 et seq. (1977). The guidelines state that "properly validated and standardized employee selection procedures can significantly contribute to the implementation of non-discriminatory personnel policies." § 1607.1(a). In another section of the guidelines, it is stated that evidence of test validity must be based on "studies employing generally accepted procedures for determining criterion-related validity, such as those described in the 'Standards for Educational and Psychological Texts and Manuals' published by the American Psychological Association." § 1607.5. The guidelines further provide that "[t]ests must be administered and scored under controlled and standardized conditions, with proper safeguards to protect the security of tests scores." § 1607.5(b)(2). Contrary to the Company's assertion, these provisions, although they do recognize the relationship between test security and test validity, do not insulate testing materials from the employer's duty under the Act to disclose relevant information. At most, they provide evidence of the employer's interest in maintaining the security of properly validated tests. 12 See n. 9, supra. 13 The Board limited discussion of its reasons for eliminating the intermediary requirement to the statement that "it is reasonable to assume that, having requested the papers, the Union intends effectively to utilize them." Consequently, it said, it "would not condition the Union's access to the information on the retention of a psychologist but rather would have [the Company] submit the information directly to the Union and let the Union decide whether the assistance or expertise of a psychologist is required." 14 See Emeryville Research Center, Shell Development Co. v. NLRB, 441 F.2d 880 (CA9 1971) (refusal to supply relevant salary information in precise form demanded did not constitute violation of § 8(a)(5) when company's proposed alternatives were responsive to union's need); Shell Oil Co. v. NLRB, 457 F.2d 615 (CA9 1975) (refusal to supply employee names without employee consent not unlawful when company had well-founded fear that nonstriking employees would be harassed); cf. Kroger Co. v. NLRB, 399 F.2d 455 (CA6 1968) (no disclosure of operating ratio data when, under circumstances, interests of employer predominated); United Aircraft Corp., 192 N.L.R.B. 382, 390 (1971) (employer acted reasonably in refusing to honor generalized request for employee medical records without employee's permission), modified on other grounds, Machinists v. United Aircraft Corp., 534 F.2d 422 (CA2 1975). 15 NLRB v. Wyman-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709, relied upon by the Solicitor General, is not to the contrary. The interests at stake and the legal issues involved in that case, in which the Board ordered the company to disclose the names and addresses of employees to a union in the process of an organizing campaign, were far different from those involved here. 16 A person's interest in preserving the confidentiality of sensitive information contained in his personnel files has been given forceful recognition in both federal and state legislation governing the recordkeeping activities of public employers and agencies. See, e. g., Privacy Act of 1974, 5 U.S.C. § 552a (written consent required before information in individual records may be disclosed, unless the request falls within an explicit statutory exception); Colo.Rev.Stat. § 24-72-204(3)(a) (1973) (regulating disclosure of medical, psychological, and scholastic achievement data in public records); Iowa Code Ann. §§ 68A.7(10)-(11) (West 1973) (regulating disclosure of personal information in public employee records); N.Y.Pub.Off.Law §§ 89(2)(b)(i)-(c)(ii) (McKinney Supp.1978) (disapproving unconsented-to release of employment and medical information in public records). See also U.S. Privacy Protection Study Comm'n, Personal Privacy in an Information Society (1977) (recommending that all employers should be under a duty to safeguard the confidentiality of employee records). Cf. Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g (explicitly recognizing, in the context of education, the interest of the individual in maintaining the confidentiality of test scores). Indeed, the federal Privacy Act ban on unconsented-to disclosure of employee records without written consent has been construed to provide a valid defense to a union request for certain employee personnel data made pursuant to the terms of a public employee collective-bargaining agreement. See American Federation of Govt. Employees v. Defense General Supply Center, 423 F.Supp. 481 (ED Va.1976), aff'd per curiam, 573 F.2d 184 (CA4 1978). 1 The Court suggests that the Court of Appeals' order cannot reach the Union because the order as it affects the Union is not literally within the compass of Fed.Rule Civ.Proc. 65(d). But the policy underlying Rule 65(d) is that of not having " 'order[s] or injunction[s] so broad as to make punishable the conduct of persons who act independently and whose rights have not been adjudged according to law.' " Golden State Bottling Co. v. NLRB, 414 U.S. 168, 180, 94 S.Ct. 414, 423, 38 L.Ed.2d 388 (1973), quoting Regal Knitwear Co. v. NLRB, 324 U.S. 9, 13, 65 S.Ct. 478, 480, 89 L.Ed. 661 (1945); see United States v. Hall, 472 F.2d 261 (CA5 1972). Cf. United States v. New York Tel. Co., 434 U.S. 159, 171-178, 98 S.Ct. 364, 372-375, 54 L.Ed.2d 376 (1977). Here, the Union was a party to the administrative proceedings, the Union's rights were adjudicated therein, it had the opportunity to secure judicial review of the terms subsequently enforced, it had notice that enforcement would be requested, it doubtless has notice of the terms of the enforcement order itself, and extension of the order to reach the Union is urged to ensure that the Court of Appeals' determination of the cognizability and scope of the Union's right of access will be fully respected. Thus, the Union is in practical effect as much a party as any typical defendant who has been given an opportunity to be heard but who has declined to avail itself of that opportunity. The Court speculates, however, that the Board would not initiate contempt proceedings in the event of Union disclosure. That observation assumes without basis that the Board would acquiesce in the Union's disregard of the Board's own directives. 2 The Union has been the certified representative of the Company's employees since about 1943, in approximately 28 different bargaining units. The Union was first certified by the Board in 1971 as the representative of operating and maintenance employees of the production department of the Monroe Power Plant, wherefrom this controversy arose. 3 The Union's disregard of the conditions of release may also violate the Union's duty to bargain in good faith under § 8(b)(3) of the Act, 29 U.S.C. § 158(b)(3), Comment, Psychological Aptitude Tests and the Duty to Supply Information: NLRB v. Detroit Edison Co., 91 Harv.L.Rev. 869, 876 n. 49 (1978), subjecting the Union to appropriate sanctions. 4 By prejudicing the interests of such employees and by eroding its bargaining relationship with the employer, the Union may provoke its own ouster by disgruntled members of the bargaining unit. In certain circumstances, the Union's action might also invite unfair-representation suits by employees who are clearly disadvantaged by the disclosure. 5 The Court assumes for the sake of discussion that the identified test scores are relevant to the performance of the Union's statutory duties. I think that assumption is well founded. The test of relevance for purposes of the duty to disclose is a liberal "discovery-type standard." NLRB v. Acme Industrial Co., 385 U.S. 432, 437, 87 S.Ct. 565, 568, 17 L.Ed.2d 495 (1967). The scores unquestionably satisfy that standard, as they possess a substantial bearing on the issue whether the employer's reliance on test performance denied the aggrieved employees their contractual right to be appointed as Instrument Man unless outshone by less senior applicants with significantly superior qualifications. As the Administrative Law Judge noted, the Union need access to the test scores, identified by the examinees' names, in order to police the contract, 218 N.L.R.B. 1024, 1034 (1975). The information would enable the Union to detect abuses in the administration of the tests and, because the examination papers eliciting multiple-choice responses—were graded manually, grading errors are not improbable and are susceptible of detection by a Union representative. See id., at 1027, 1034. Moreover, inspection of the examinees' results might disclose unacceptable biases in the tests themselves. Inspection of test scores and the personal characteristics of the employees tested might reveal that certain employees are encountering difficulties with the tests for reasons unrelated to job aptitude. Put another way, the margin of error inhering in the examination may be assignable to test biases identifiable with the aid of the examinees' answer sheets. See Comment, 91 Harv.L.Rev., supra n. 3, at 873-874. The utility of such information in determining whether the test battery fairly measures job aptitude in particular instances is illustrated by the following colloquy between the arbitrator and an expert witness in the Company's employ: "THE ARBITRATOR: I guess what I am wondering about in this kind of a test is when you grade these, you are just . . . taking the raw score and not looking at what might be the elements in the test. Is that right? "THE WITNESS: No. We would look at the elements of the test. We always look at the parts of the test because sometimes a performance on a particular kind of segment of any test might indicate that we have a bad testing situation; this person really didn't have an opportunity to do what he is capable of doing, and you then can find out that, for example, a person's native language might not be English and that might account for the peculiar thing and you would then not even perhaps score the test. "THE ARBITRATOR: How would you see that? How would you find that data? "THE WITNESS: Well, you would see it because this particular test has, for example, several different elements tapping different kinds of abilities, some based on verbal use of language and some not so heavily weighted in that direction, and you would see a pronounced difference which is completely out of character. It just doesn't fit. "This is what normally happens when given the test. A test is an overall look at engineering and physical science aptitudes. That is a rather closely-knit set, and if one of the tests were way off, one might then legitimately ask whether or not you had a good test overall." App. 324-325. 6 There is no reason to believe, moreover, that release of the scores to the Union will result in dissemination to the employees generally. The Union has no incentive, and indeed would be foolish, to publicize test information against the wishes of an actual or potential member of the bargaining unit. Furthermore, the Board's order may reasonably be read to restrict the divulgence and use of the test scores as well as the test questions. 7 Even an individual employee cannot press his own grievance in such a way as to frustrate the Union's responsibility to ensure fairness to all members of the bargaining unit. Although an individual employee has the statutory right to present a grievance at any time to his employer, "the bargaining representative [must be] given opportunity to be present at such adjustment." § 9(a) of the Act, 29 U.S.C. § 159(a). The Company's policy to have its psychologist explain an examinee's score to him when the examinee has failed to make the cutoff, see ante, at 307, but not to disclose the same information to the Union, is directly inconsistent with the mandate of § 9(a). As the Administrative Law Judge observed: "In essence, [the employer] here contends that, having voluntarily chosen a particular form or mechanism to determine the right of bargaining unit employees to be promoted, [the employer] is now precluded by the very devices which it adopted from dealing with the employees' bargaining representative about critical elements of the promotion process, and will deal only with the individual. Such a program, which freezes out the bargaining representative from participation in significant elements of the promotion process, and seeks to substitute individual bargaining therefor constitutes a complete negation of the bargaining process . . .." 218 N.L.R.B., at 1035. 8 Release of the information to a psychologist alone would be unsatisfactory. See supra, at 324-325. The Union would be relegated " 'to play[ing] a game of blind man's bluff.' " NLRB v. Acme Industrial Co., 385 U.S., at 438 n. 8, 87 S.Ct., at 569 n. 8, quoting Fafnir Bearing Co. v. NLRB, 362 F.2d 716, 721 (CA2 1966). 9 In other contexts, the courts have generally rejected claims of confidentiality as a basis for withholding relevant information. See General Electric Co. v. NLRB, 466 F.2d 1177 (CA6 1972) (wage data); NLRB v. Frontier Homes Corp., 371 F.2d 974 (CA8 1967) (selling-price lists); Curtiss-Wright Corp. v. NLRB, 347 F.2d 61 (CA3 1965) (job evaluation and wage data); NLRB v. Item Co., 220 F.2d 956 (CA5) (wage data), cert. denied, 350 U.S. 836, 76 S.Ct. 73, 100 L.Ed. 746 (1955); cf. United Aircraft Corp., 192 N.L.R.B. 382, 390 (1971) (company physician's records not disclosable without employee's permission unless needed for a particular grievance), modified on other issues sub nom. Machinists v. United Aircraft Corp., 534 F.2d 422 (CA2 1975), cert. denied, 429 U.S. 825 (1976); Shell Oil Co. v. NLRB, 457 F.2d 615, 619 (CA9 1972) (refusal to furnish employees' names without consent was proper when it was "establish[ed] beyond cavil that there was a clear and present danger of harassment and violence"). See also Cowles Communications, Inc., 172 N.L.R.B. 1909 (1968) (employees' salaries and other particularized data about employees); Electric Auto-Lite Co., 89 N.L.R.B. 1192 (1950) (wage data); R. Gorman, Labor Law 417-418 (1976); Comment, 91 Harv.L.Rev., supra n. 3, at 873-874, and n. 35. In NLRB v. Wyman-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969), in another setting, a plurality of this Court observed: "The disclosure requirement [imposed by the Board and concerning employees' names and addresses] furthers [statutory objectives] by encouraging an informed employee electorate and by allowing unions the right of access to employees that management already possesses. It is for the Board and not for this Court to weigh against this interest the asserted interest of employees in avoiding the problems that union solicitation may present." Id., at 767, 89 S.Ct. at 1430. American Federation of Gov't Employees v. Defense General Supply Center, 573 F.2d 184 (CA4 1978), from which the majority seeks support, ante, at 319 n. 16, involved a federal employer not subject to the National Labor Relations Act and a construction of the federal Privacy Act.

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440 U.S. 444 99 S.Ct. 1415 59 L.Ed.2d 440 Harold RAMSEY, petitioner,v.State of NEW YORK No. 77-6540 Supreme Court of the United States March 5, 1979 On Writ of Certiorari to the Appellate Division, Supreme Court of New York, Second Judicial Dept. March 5, 1979. PER CURIAM. 1 The petition for certiorari in this case stated the question presented as follows: 2 "Whether a guilty plea is obtained in violation of due process of law when it is induced by a judge's threat that, should the defendant be convicted after trial, he will receive a sentence almost four times greater than one once seriously discussed, and more than twice as great as the one then held out as part of a plea offer." 3 We granted certiorari to decide this question. 439 U.S. 892, 99 S.Ct. 248, 58 L.Ed.2d 237. After briefing and oral argument, it has become evident that on the record in this case it cannot be said with any degree of certainty that this question is actually presented. The writ, therefore, is dismissed as having been improvidently granted. 4 So ordered.

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440 U.S. 268 99 S.Ct. 1102 59 L.Ed.2d 306 William Herbert ORR, Appellant,v.Lillian M. ORR. No. 77-1119. Argued Nov. 27, 1978. Decided March 5, 1979. Syllabus Following a stipulation between appellant husband and appellee wife, in which appellant agreed to pay appellee alimony, an Alabama court, acting pursuant to state alimony statutes under which husbands but not wives may be required to pay alimony upon divorce, ordered appellant to make monthly alimony payments. Some two years thereafter appellee filed a petition seeking to have appellant adjudged in contempt for failing to maintain the alimony payments. At the hearing on the petition appellant, though not claiming that he was entitled to an alimony award from appellee, made the contention (advanced for the first time in that proceeding) that the Alabama statutes, by virtue of their reliance on a gender-based classification, violated the Equal Protection Clause of the Fourteenth Amendment. The trial court, ruling adversely to appellant on that issue, entered judgment against him, which was affirmed on appeal. Held: 1. This Court has jurisdiction over appellant's appeal. Pp. 271-278. (a) Appellant's failure to ask for alimony for himself does not deprive him of standing to attack the constitutionality of the Alabama statutes for underinclusiveness. That attack holds the only promise of relief from the burden deriving from the challenged statutes, and appellant has therefore "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which th[is] court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663. Pp. 271-273. (b) Had the courts below refused to entertain appellant's constitutional contention on the ground that it was not timely made under applicable state procedures this Court might have lacked jurisdiction to consider the contention; but no timeliness point was raised or considered below and the constitutional issue was decided on the merits. Under these circumstances it is irrelevant whether the decision below could have been based upon an adequate and independent state ground. Pp. 274-275. (c) No point was raised or considered below that appellant by virtue of the stipulation was obliged to make the alimony payments under state contract law. "Where the state court does not decide against [an] appellant upon an independent state ground, but deeming the federal question to be before it, actually . . . decides that question adversely to the federal right asserted, this Court has jurisdiction to review the judgment if, as here, it is . . . final . . . ." Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 98, 58 S.Ct. 443, 445, 82 L.Ed. 685. Pp. 275-278. 2. The Alabama statutory scheme of imposing alimony obligations on husbands but not wives violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 278-283. (a) "To withstand scrutiny" under the Equal Protection Clause, " 'classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.' " Califano v. Webster, 430 U.S. 313, 316-317, 97 S.Ct. 1192, 1194, 51 L.Ed.2d 360. Pp. 278-279. (b) The statutes cannot be validated on the basis of the State's preference for an allocation of family responsibilities under which the wife plays a dependent role. "No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas." Stanton v. Stanton, 421 U.S. 7, 14-15, 95 S.Ct. 1373, 1375-1376, 43 L.Ed.2d 688. Pp. 279-280. (c) Though it could be argued that the Alabama statutory scheme is designed to provide help for needy spouses, using sex as a proxy for need, and to compensate women for past discrimination during marriage, which assertedly has left them unprepared to fend for themselves in the working world following divorce, these considerations would not justify that scheme because under the Alabama statutes individualized hearings at which the parties' relative financial circumstances are considered already occur. Since such hearings can determine which spouses are needy as well as which wives were in fact discriminated against, there is no reason to operate by generalization. "Thus, the gender-based distinction is gratuitous . . . ." Weinberger v. Wiesenfeld, 420 U.S. 636, 653, 95 S.Ct. 1225, 1235, 43 L.Ed.2d 514. Pp. 280-282. (d) Use of a gender classification, moreover, actually produces perverse results in this case because only a financially secure wife whose husband is in need derives an advantage from the Alabama scheme as compared to a gender-neutral one. Pp. 282-283. 3. The question remains open on remand whether appellant's stipulated agreement to pay alimony, or other grounds of gender-neutral state law, bind him to continue his alimony payments. Pp. 283-284. Ala., 351 So.2d 904, reversed and remanded. John L. Capell, III, Montgomery, Ala., for appellant. W. F. Horsley, Opelika, Ala., for appellee. Mr. Justice BRENNAN delivered the opinion of the Court. 1 The question presented is the constitutionality of Alabama alimony statutes which provide that husbands, but not wives, may be required to pay alimony upon divorce.1 2 On February 26, 1974, a final decree of divorce was entered, dissolving the marriage of William and Lillian Orr. That decree directed appellant, Mr. Orr, to pay appellee, Mrs. Orr, $1,240 per month in alimony. On July 28, 1976, Mrs. Orr initiated a contempt proceeding in the Circuit Court of Lee County, Ala., alleging that Mr. Orr was in arrears in his alimony payments. On August 19, 1976, at the hearing on Mrs. Orr's petition, Mr. Orr submitted in his defense a motion requesting that Alabama's alimony statutes be declared unconstitutional because they authorize courts to place an obligation of alimony upon husbands but never upon wives. The Circuit Court denied Mr. Orr's motion and entered judgment against him for $5,524, covering back alimony and attorney fees. Relying solely upon his federal constitutional claim, Mr. Orr appealed the judgment. On March 16, 1977, the Court of Civil Appeals of Alabama sustained the constitutionality of the Alabama statutes, 351 So.2d 904. On May 24, the Supreme Court of Alabama granted Mr. Orr's petition for a writ of certiorari, but on November 10, without court opinion, quashed the writ as improvidently granted. 351 So.2d 906. We noted probable jurisdiction, 436 U.S. 924, 98 S.Ct. 2817, 56 L.Ed.2d 767 (1978). We now hold the challenged Alabama statutes unconstitutional and reverse. 3 * We first address three preliminary questions not raised by the parties or the Alabama courts below, but which nevertheless may be jurisdictional and therefore are considered of our own motion. 4 The first concerns the standing of Mr. Orr to assert in his defense the unconstitutionality of the Alabama statutes. It appears that Mr. Orr made no claim that he was entitled to an award of alimony from Mrs. Orr, but only that he should not be required to pay alimony if similarly situated wives could not be ordered to pay.2 It is therefore possible that his success here will not ultimately bring him relief from the judgment outstanding against him, as the State could respond to a reversal by neutrally extending alimony rights to needy husbands as well as wives. In that event, Mr. Orr would remain obligated to his wife. It is thus argued that the only "proper plaintiff" would be a husband who requested alimony for himself, and not one who merely objected to paying alimony. 5 This argument quite clearly proves too much. In every equal protection attack upon a statute challenged as underinclusive, the State may satisfy the Constitution's commands either by extending benefits to the previously disfavored class or by denying benefits to both parties (e. g., by repealing the statute as a whole). In this case, if held unconstitutional, the Alabama divorce statutes could be validated by, inter alia, amendments which either (1) permit awards to husbands as well as wives, or (2) deny alimony to both parties. It is true that under the first disposition Mr. Orr might gain nothing from his success in this Court, although the hypothetical "requesting" plaintiff would. However, if instead the State takes the second course and denies alimony to both spouses, it is Mr. Orr and not the hypothetical plaintiff who would benefit. Because we have no way of knowing how the State will in fact respond, unless we are to hold that underinclusive statutes can never be challenged because any plaintiff's success can theoretically be thwarted, Mr. Orr must be held to have standing here. We have on several occasions considered this inherent problem of challenges to underinclusive statutes, Stanton v. Stanton, 421 U.S. 7, 17, 95 S.Ct. 1373, 1379, 43 L.Ed.2d 688 (1975); Craig v. Boren, 429 U.S. 190, 210 n. 24, 97 S.Ct. 451, 463 n. 24, 50 L.Ed.2d 397 (1976), and have not denied a plaintiff standing on this ground. 6 There is no question but that Mr. Orr bears a burden he would not bear were he female. The issue is highlighted, although not altered, by transposing it to the sphere of race. There is no doubt that a state law imposing alimony obligations on blacks but not whites could be challenged by a black who was required to pay. The burden alone is sufficient to establish standing. Our resolution of a statute's constitutionality often does "not finally resolve the controversy as between th[e] appellant and th[e] appellee," Stanton v. Stanton, 421 U.S., at 17, 95 S.Ct., at 1379. We do not deny standing simply because the "appellant, although prevailing here on the federal constitutional issue, may or may not ultimately win [his] lawsuit." Id., at 18, 95 S.Ct., at 1379. The holdings of the Alabama courts stand as a total bar to appellant's relief; his constitutional attack holds the only promise of escape from the burden that derives from the challenged statutes. He has therefore "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which th[is] court so largely depends for illumination of difficult constitutional questions." Linda R. S. v. Richard D., 410 U.S. 614, 616, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973), quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Indeed, on indistinguishable facts, this Court has stated that a party's standing will be sustained. In Linda R. S. v. Richard D., supra, 410 U.S., at 619 n. 5, 93 S.Ct., at 1149 n. 5 (Marshall, J.), we stated that the parent of a legitimate child who must by statute pay child support has standing to challenge the statute on the ground that the parent of an illegitimate child is not equally burdened.3 7 A second preliminary question concerns the timeliness of appellant's challenge to the constitutionality of the statutes. No constitutional challenge was made at the time of the original divorce decree; Mr. Orr did not interpose the Constitution until his ex-wife sought a contempt judgment against him for his failure to abide by the terms of the decree. This unexcused tardiness might well have constituted a procedural default under state law, and if Alabama had refused to hear Mr. Orr's constitutional objection on that ground, we might have been without jurisdiction to consider it here. See C. Wright, Federal Courts 541-542 (3d ed. 1976). 8 But in this case neither Mrs. Orr, nor the Alabama courts at any time objected to the timeliness of the presentation of the constitutional issue. Instead, the Alabama Circuit and Civil Appeals Courts both considered the issue to be properly presented and decided it on the merits. See 351 So.2d, at 905; App. to Juris. Statement 22a. In such circumstances, the objection that Mr. Orr's COMPLAINT " 'COMES TOO LATE' . . . IS CLEARLY untenable. . . . [s]ince the state court deemed the federal constitutional question to be before it, we could not treat the decision below as resting upon an adequate and independent state ground even if we were to conclude that the state court might properly have relied upon such a ground to avoid deciding the federal question." Beecher v. Alabama, 389 U.S. 35, 37, n. 3, 88 S.Ct. 189, 190 n. 3, 19 L.Ed.2d 35 (1967). This is merely an application of the "elementary rule that it is irrelevant to inquire . . . when a Federal question was raised in a court below when it appears that such question was actually considered and decided." Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123, 134, 34 S.Ct. 874, 877, 58 L.Ed. 1245 (1914). Accord, Harlin v. Missouri, 439 U.S. 459, 99 S.Ct. 709, 58 L.Ed.2d 733 (1979); Jenkins v. Georgia, 418 U.S. 153, 157, 94 S.Ct. 2750, 2753, 41 L.Ed.2d 642 (1974); Raley v. Ohio, 360 U.S. 423, 436, 79 S.Ct. 1257, 1265, 3 L.Ed.2d 1344 (1959). See C. Wright, supra, at 542.4 9 The third preliminary question arises from indications in the record that Mr. Orr's alimony obligation was part of a stipulation entered into by the parties, which was then incorporated into the divorce decree by the Lee County Circuit Court. Thus, it may be that despite the unconstitutionality of the alimony statutes, Mr. Orr may have a continuing obligation to his former wife based upon that agreement—in essence a matter of state contract law.5 If the Alabama courts have so held, and had anchored their judgments in this case on that basis, an independent and adequate state ground might exist and we would be without power to hear the constitutional argument. See Herb v. Pitcairn, 324 U.S. 117, 125-126, 65 S.Ct. 459, 462-463, 89 L.Ed. 789 (1945); Fox Film Corp. v. Muller, 296 U.S. 207, 56 S.Ct. 183, 80 L.Ed. 158 (1935). And if there were ambiguity as to whether the State's decision was based on federal or state grounds, it would be open to this Court not to determine the federal question, but to remand to the state courts for clarification as to the ground of the decision. See California v. Krivda, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972). 10 But there is no ambiguity here. At no time did Mrs. Orr raise the stipulation as a possible alternative ground in support of her judgment. Indeed, her brief in the Alabama Court of Civil Appeals expressly stated that "[t]he appellee agrees that the issue before this Court is whether the Alabama alimony laws are unconstitutional because of the gender based classification made in the statutes." App. to Juris. Statement 25a. The Alabama Circuit and Civil Appeals Courts reached and decided the federal question without considering any state-law issues, the latter specifying that "[t]he sole issue before this court is whether Alabama's alimony statutes are unconstitutional. We find they are not unconstitutional and affirm." 351 So.2d, at 905. While no reason was given by the State Supreme Court's majority for quashing the writ of certiorari, the concurring and dissenting opinions mention only the federal constitutional issue and do not mention the stipulation. See 351 So.2d, at 906-910. And Mrs. Orr did not even raise the point in this Court. On this record, then, our course is clear and dictated by a long line of decisions. 11 "Where the state court does not decide against a petitioner or appellant upon an independent state ground, but deeming the federal question to be before it, actually entertains and decides that question adversely to the federal right asserted, this Court has jurisdiction to review the judgment if, as here, it is a final judgment. We cannot refuse jurisdiction because the state court might have based its decision, consistently with the record, upon an independent and adequate non-federal ground." Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 98, 58 S.Ct. 443, 445, 82 L.Ed. 685 (1938). 12 Accord, United Air Lines, Inc. v. Mahin, 410 U.S. 623, 630-631, 93 S.Ct. 1186, 1191, 35 L.Ed.2d 545 (1973); Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 375-376, 88 S.Ct. 982, 987, 19 L.Ed.2d 1238 (1968); Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 197 n. 1, 65 S.Ct. 226, 229 n. 1, 89 L.Ed. 173 (1944); International Steel & Iron Co. v. National Surety Co., 297 U.S. 657, 666, 56 S.Ct. 619, 623, 80 L.Ed. 961 (1936); Grayson v. Harris, 267 U.S. 352, 358, 45 S.Ct. 317, 319, 69 L.Ed. 652 (1925); Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 120, 44 S.Ct. 274, 275, 68 L.Ed. 582 (1924); Rogers v. Hennepin County, 240 U.S. 184, 188-189, 36 S.Ct. 265, 267, 60 L.Ed. 594 (1916). See C. Wright, Federal Courts, at 544.6 13 Our analysis of these three preliminary questions, therefore, indicates that we do have jurisdiction over the constitutional challenge asserted by Mr. Orr.7 As an Art. III "case or controversy" has been properly presented to this Court, we now turn to the merits.8 II 14 In authorizing the imposition of alimony obligations on husbands, but not on wives, the Alabama statutory scheme "provides that different treatment be accorded . . . on the basis of . . . sex; it thus establishes a classification subject to scrutiny under the Equal Protection Clause," Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971). The fact that the classification expressly discriminates against men rather than women does not protect it from scrutiny. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). "To withstand scrutiny" under the Equal Protection Clause, " 'classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.' " Califano v. Webster, 430 U.S. 313, 316-317, 97 S.Ct. 1192, 1194, 51 L.Ed.2d 360 (1977). We shall, therefore, examine the three governmental objectives that might arguably be served by Alabama's statutory scheme. 15 Appellant views the Alabama alimony statutes as effectively announcing the State's preference for an allocation of family responsibilities under which the wife plays a dependent role, and as seeking for their objective the reinforcement of that model among the State's citizens. Cf. Stern v. Stern, 165 Conn. 190, 332 A.2d 78 (1973). We agree, as he urges, that prior cases settle that this purpose cannot sustain the statutes.9 Stanton v. Stanton, 421 U.S. 7, 10, 95 S.Ct. 1373, 1376, 43 L.Ed.2d 688 (1975), held that the "old notio[n]" that "generally it is the man's primary responsibility to provide a home and its essentials," can no longer justify a statute that discriminates on the basis of gender. "No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas," id., at 14-15, 95 S.Ct., at 1378. See also Craig v. Boren, supra, 429 U.S., at 198, 97 S.Ct., at 457. If the statute is to survive constitutional attack, therefore, it must be validated on some other basis. 16 The opinion of the Alabama Court of Civil Appeals suggests other purposes that the statute may serve. Its opinion states that the Alabama statutes were "designed" for "the wife of a broken marriage who needs financial assistance," 351 So.2d, at 905. This may be read as asserting either of two legislative objectives. One is a legislative purpose to provide help for needy spouses, using sex as a proxy for need. The other is a goal of compensating women for past discrimination during marriage, which assertedly has left them unprepared to fend for themselves in the working world following divorce. We concede, of course, that assisting needy spouses is a legitimate and important governmental objective. We have also recognized "[r]eduction of the disparity in economic condition between men and women caused by the long history of discrimination against women . . . as . . . an important governmental objective," Califano v. Webster, supra, 430 U.S., at 317, 97 S.Ct., at 1194. It only remains, therefore, to determine whether the classification at issue here is "substantially related to achievement of those objectives." Ibid.10 17 Ordinarily, we would begin the analysis of the "needy spouse" objective by considering whether sex is a sufficiently "accurate proxy," Craig v. Boren, supra, 429 U.S., at 204, 97 S.Ct., at 460, for dependency to establish that the gender classification rests " 'upon some ground of difference having a fair and substantial relation to the object of the legislation,' " Reed v. Reed, supra, 404 U.S., at 76, 92 S.Ct., at 254. Similarly, we would initially approach the "compensation" rationale by asking whether women had in fact been significantly discriminated against in the sphere to which the statute applied a sex-based classification, leaving the sexes "not similarly situated with respect to opportunities" in that sphere, Schlesinger v. Ballard, 419 U.S. 498, 508, 95 S.Ct. 572, 577, 42 L.Ed.2d 610 (1975). Compare Califano v. Webster, supra, 430 U.S., at 318, 97 S.Ct., at 1195, and Kahn v. Shevin, 416 U.S. 351, 353, 94 S.Ct. 1734, 1736, 40 L.Ed.2d 189 (1974), with Weinberger v. Wiesenfeld, 420 U.S. 636, 648, 95 S.Ct. 1225, 1233, 43 L.Ed.2d 514 (1975).11 18 But in this case, even if sex were a reliable proxy for need, and even if the institution of marriage did discriminate against women, these factors still would "not adequately justify the salient features of" Alabama's statutory scheme, Craig v. Boren, supra, 429 U.S., at 202-203, 97 S.Ct., at 459-460. Under the statute, individualized hearings at which the parties' relative financial circumstances are considered already occur. See Russell v. Russell, 247 Ala. 284, 286, 24 So.2d 124, 126 (1945); Ortman v. Ortman, 203 Ala. 167, 82 So. 417 (1919). There is no reason, therefore, to use sex as a proxy for need. Needy males could be helped along with needy females with little if any additional burden on the State. In such circumstances, not even an administrative-convenience rationale exists to justify operating by generalization or proxy.12 Similarly, since individualized hearings can determine which women were in fact discriminated against vis-a-vis their husbands, as well as which family units defied the stereotype and left the husband dependent on the wife, Alabama's alleged compensatory purpose may be effectuated without placing burdens solely on husbands. Progress toward fulfilling such a purpose would not be hampered, and it would cost the State nothing more, if it were to treat men and women equally by making alimony burdens independent of sex. "Thus, the gender-based distinction is gratuitous; without it, the statutory scheme would only provide benefits to those men who are in fact similarly situated to the women the statute aids," Weinberger v. Wiesenfeld, supra, 420 U.S., at 653, 95 S.Ct., at 1236, and the effort to help those women would not in any way be compromised. 19 Moreover, use of a gender classification actually produces perverse results in this case. As compared to a gender-neutral law placing alimony obligations on the spouse able to pay, the present Alabama statutes give an advantage only to the financially secure wife whose husband is in need. Although such a wife might have to pay alimony under a gender-neutral statute, the present statutes exempt her from that obligation. Thus, "[t]he [wives] who benefit from the disparate treatment are those who were . . . nondependent on their husbands," Califano v. Goldfarb, 430 U.S. 199, 221, 97 S.Ct. 1021, 1034, 51 L.Ed.2d 270 (1977) (Stevens, J., concurring in judgment). They are precisely those who are not "needy spouses" and who are "least likely to have been victims of . . . discrimination," ibid., by the institution of marriage. A gender-based classification which, as compared to a gender-neutral one, generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny. 20 Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing the stereotypes about the "proper place" of women and their need for special protection. Cf. United Jewish Organizations v. Carey, 430 U.S. 144, 173-174, 97 S.Ct. 996, 1013-1014, 51 L.Ed.2d 229 (1977) (opinion concurring in part). Thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination must be carefully tailored. Where, as here, the State's compensatory and ameliorative purposes are as well served by a gender-neutral classification as one that gender classifies and therefore carries with it the baggage of sexual stereotypes, the State cannot be permitted to classify on the basis of sex. And this is doubly so where the choice made by the State appears to redound—if only indirectly—to the benefit of those without need for special solicitude. III 21 Having found Alabama's alimony statutes unconstitutional, we reverse the judgment below and remand the cause for further proceedings not inconsistent with this opinion. That disposition, of course, leaves the state courts free to decide any questions of substantive state law not yet passed upon in this litigation. Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 109, 58 S.Ct. 443, 450, 82 L.Ed. 685 (1938); C. Wright, Federal Courts, at 544. See South Dakota v. Opperman, 428 U.S. 364, 396, 96 S.Ct. 3092, 3110, 49 L.Ed.2d 1000 (1976) (Marshall, J., dissenting); United Air Lines, Inc. v. Mahin, 410 U.S., at 632, 93 S.Ct., at 1192; California v. Green, 399 U.S. 149, 169-170, 90 S.Ct. 1930, 1940-1941, 26 L.Ed.2d 489 (1970); Schuylkill Trust Co. v. Pennsylvania, 302 U.S. 506, 512, 58 S.Ct. 295, 297, 82 L.Ed. 392 (1938); Georgia R. & Elec. Co. v. Decatur, 297 U.S. 620, 623-624, 56 S.Ct. 606, 607, 80 L.Ed. 925 (1936). Therefore, it is open to the Alabama courts on remand to consider whether Mr. Orr's stipulated agreement to pay alimony, or other grounds of gender-neutral state law, bind him to continue his alimony payments.13 22 Reversed and remanded. 23 Mr. Justice BLACKMUN, concurring. 24 On the assumption that the Court's language concerning discrimination "in the sphere" of the relevant preference statute, ante, at 281, does not imply that society-wide discrimination is always irrelevant, and on the further assumption that that language in no way cuts back on the Court's decision in Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974), I join the opinion and judgment of the Court. 25 Mr. Justice STEVENS, concurring. 26 Whether Mr. Orr has a continuing contractual obligation to pay alimony to Mrs. Orr is a question of Alabama law that the Alabama courts have not yet decided. In Part I-B of his opinion, Mr. Justice REHNQUIST seems to be making one of two alternative suggestions: 27 (1) that we should decide the state-law issue; or (2) that we should direct the Supreme Court of Alabama to decide that issue before deciding the federal constitutional issue. 28 In my judgment the Court has correctly rejected both of these alternatives. To accept either—or a rather confused blend of the two—would violate principles of federalism that transcend the significance of this case.* I therefore join the Court's opinion. 29 Mr. Justice POWELL, dissenting. 30 I agree with Mr. Justice REHNQUIST that the Court, in its desire to reach the equal protection issue in this case, has dealt too casually with the difficult Art. III problems which confront us. Rather than assume the answer to questions of state law on which the resolution of the Art. III issue should depend, and which well may moot the equal protection question in this case, I would abstain from reaching either of the constitutional questions at the present time. This Court repeatedly has observed: 31 "[W]hen a federal constitutional claim is premised on an unsettled question of state law, the federal court should stay its hand in order to provide the state courts an opportunity to settle the underlying state-law question and thus avoid the possibility of unnecessarily deciding a constitutional question." Harris County Comm'rs Court v. Moore, 420 U.S. 77, 83, 95 S.Ct. 870, 875, 43 L.Ed.2d 32 (1975). 32 See Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978); Boehning v. Indiana State Employees Assn., Inc., 423 U.S. 6, 96 S.Ct. 168, 46 L.Ed.2d 148 (1975); Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); Aldrich v. Aldrich, 378 U.S. 540, 84 S.Ct. 1687, 12 L.Ed.2d 1020 (1964); Dresner v. Tallahassee, 378 U.S. 539, 84 S.Ct. 1895, 12 L.Ed.2d 1018 (1964); Clay v. Sun Ins. Office, Ltd., 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960); Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562 (1959); Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944); Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The Court should follow this principle in the present case. 33 Here there are present two questions of state law, the resolution of which almost certainly will determine the outcome of this litigation, and at the least will substantially alter the issues presented. The Court concedes that Alabama properly might regard this challenge to the terms of the divorce decree as untimely, as it came for the first time—more than two years after the decree became final—in a contempt proceeding to enforce the alimony obligation. Ante, at 275 n. 4. Moreover, appellant had interposed no objection to the entry of the decree and the approval therein of the settlement agreement, nor had he questioned the validity of the Alabama statute. If, in these circumstances, provisions of a divorce decree are subject to collateral attack, grave questions will arise in Alabama and other States. It hardly need be said that the policy of repose embodied in a prohibition of collateral attack has especial importance with respect to divorce and alimony decrees. It is not surprising, therefore, that subsequent to its decision in this case the Alabama Court of Civil Appeals held that a claim identical to appellant's would not be considered, where the husband raised it for the first time on a motion for a new trial. Hughes v. Hughes, 362 So.2d 910, cert. dismissed as improvidently granted, 362 So.2d 918 (Ala.1978), appeal docketed, No. 78-1071. This holding should apply a fortiori to a case where the constitutional claim was not raised until a contempt proceeding. 34 The second question of state law concerns the formal settlement agreement entered into between appellant and appellee, which deals in detail with the "property rights, alimony, and other matters in dispute" between the parties, and which was approved by the divorce court. The agreement requires the husband to pay $1,240 per month for the "support and maintenance, use and comfort" of the wife for her life or until she remarries. It also specifies that the terms and provisions of the agreement "shall inure to and be binding upon the parties hereto and their respective heirs, assigns, executors, administrators and legal representatives." App. 7-15. Although the Court does not view this agreement as any obstacle to reaching the constitutional question, it does acknowledge that appellant "may have a continuing obligation to his former wife based upon that agreement"—as a matter of "state contract law" quite apart from the divorce decree. Ante, at 275. 35 If appellant's collateral attack on the terms of the divorce decree could not properly be entertained under Alabama law, or if the alimony obligation assumed by appellant in the settlement agreement remains enforceable under Alabama law, the question whether this Court constitutionally may exercise jurisdiction over the dispute would be close and difficult.1 In addition, it would be unnecessary to consider the constitutionality of Alabama's divorce statute, as the adequate-and-independent-state-ground doctrine then would bar federal review of the judgment against appellant.2 36 The Court, in order to find a case or controversy present here, necessarily assumes the answer to both of the state-law questions in this case. In some circumstances such assumptions might be appropriate. We cannot anticipate every state-law issue that ultimately could bar the realization of an otherwise substantial federal claim, and the failure of either the state courts or the parties to address an issue ordinarily might indicate that it does not present a problem. But here the Court concedes the substantiality of the identified but unanswered questions. Indeed, in light of Hughes v. Hughes, supra, it could not do otherwise. 37 The uncertainty and ambiguity surrounding this case is accentuated by the fact that appellant apparently does not contend that the entire divorce decree is invalid; he seeks relief only from so much of the decree as imposes an alimony obligation. But this obligation is only one element of the detailed and comprehensive agreement signed by the parties and witnessed by their respective attorneys. The agreement was not made subject to the approval of the divorce court. Apart from whether the contractual obligation to pay alimony remains binding on appellant, is there a question as to the binding effect of the divorce itself upon appellee? Would she have agreed to divorce appellant without a contest, and without making a record of her grounds for divorce, unless she had the assurance of a valid and enforceable court order providing support and maintenance for her lifetime? 38 Apparently none of these questions was raised in either of the Alabama courts. No explanation has been offered us as to why the case is presented here in this manner.3 In view of the substantiality of the unanswered questions, it must be conceded that serious doubts exist as to either the presence of a judicially cognizable case or controversy or to appellant's obtaining any advantage from his constitutional claim. The failure of the parties to raise the questions in the courts below, and of the courts to raise them sua sponte, cannot bind us. On the record before us it cannot be said with assurance that the interests of these parties before this Court are fully adversary or that they are not seeking—for reasons undisclosed—a purely advisory opinion on a constitutional issue of considerable importance.4 39 In these circumstances, I find the Court's insistence upon reaching and deciding the merits quite irreconcilable with the long-established doctrine that we abstain from reaching a federal constitutional claim that is premised on unsettled questions of state law without first affording the state courts an opportunity to resolve such questions. I therefore would remand the case to the Supreme Court of Alabama. 40 Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting. 41 In Alabama only wives may be awarded alimony upon divorce. In Part I of its opinion, the Court holds that Alabama's alimony statutes may be challenged in this Court by a divorced male who has never sought alimony, who is demonstrably not entitled to alimony even if he had, and who contractually bound himself to pay alimony to his former wife and did so without objection for over two years. I think the Court's eagerness to invalidate Alabama's statutes has led it to deal too casually with the "case and controversy" requirement of Art. III of the Constitution. 42 * The architects of our constitutional form of government, to assure that courts exercising the "judicial power of the United States" would not trench upon the authority committed to the other branches of government, consciously limited the Judicial Branch's "right of expounding the Constitution" to "cases of a Judiciary Nature"1—that is, to actual "cases" and "controversies" between genuinely adverse parties. Central to this Art. III limitation on federal judicial power is the concept of standing. The standing inquiry focuses on the party before the Court asking whether he has " 'such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490, 498-499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) (emphasis in original), quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Implicit in the concept of standing, are the requirements of injury in fact and causation. To demonstrate the "personal stake" in the litigation necessary to satisfy Art. III, the party must suffer "a distinct and palpable injury," Warth v. Seldin, supra, 422 U.S., at 501, 95 S.Ct., at 2206, that bears a " 'fairly traceable' causal connection" to the challenged government action. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978), quoting Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977). When a party's standing to raise an issue is questioned, therefore, "the relevant inquiry is whether . . . [he] has shown an injury to himself that is likely to be redressed by a favorable decision." Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). Stated differently, a party who places a question before a federal court must "stand to profit in some personal interest" from its resolution, else the exercise of judicial power would be gratuitous. Id., at 39, 96 S.Ct., at 1925. 43 The sole claim before this Court is that Alabama's alimony statutes, which provide that only husbands may be required to pay alimony upon divorce, violate the Equal Protection Clause of the Fourteenth Amendment. Statutes alleged to create an impermissible gender-based classification are generally attacked on one of two theories. First, the challenged classification may confer on members of one sex a benefit not conferred on similarly situated members of the other sex. Clearly, members of the excluded class those who but for their sex would be entitled to the statute's benefits—have a sufficient "personal stake" in the outcome of an equal protection challenge to the statute to invoke the power of the federal judiciary. Thus, a widower has standing to question the constitutionality of a state statute granting a property tax exemption only to widows. See Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). Likewise, this Court has reached the merits of a retired male wage earner's equal protection challenge to a federal statute granting higher monthly old-age benefits to similarly situated female wage earners. See Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977). Standing to raise these constitutional claims was not destroyed by the fact that the State of Florida in Kahn, and Congress in Webster, were capable of frustrating a victory in this Court by merely withdrawing the challenged statute's benefits from the favored class rather than extending them to the excluded class. See Stanton v. Stanton, 421 U.S. 7, 17, 95 S.Ct. 1373, 1379, 43 L.Ed.2d 688 (1975). 44 Second, the challenged statute may saddle members of one sex with a burden not borne by similarly situated members of the other sex. Standing to attack such a statute lies in those who labor under its burden. For example, in Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977), this Court sustained a widower's equal protection challenge to a provision of the Social Security Act that burdened widowers but not widows with the task of proving dependency upon the deceased spouse in order to qualify for survivor's benefits. A similar statute was invalidated in Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), at the instance of a female member of the uniformed services who, unlike her male counterparts, was required to prove her spouse's dependency in order to obtain increased quarters allowances and health benefits. 45 The statutes at issue here differ from those discussed above in that the benefit flowing to divorced wives derives from a burden imposed on divorced husbands. Thus, Alabama's alimony statutes in effect create two gender classifications: that between needy wives, who can be awarded alimony under the statutes, and needy husbands, who cannot; and that between financially secure husbands, who can be required to pay alimony under the statutes, and financially secure wives, who cannot. Appellant Orr's standing to raise his equal protection claim must therefore be analyzed in terms of both of these classifications. A. 46 This Court has long held that in order to satisfy the injury-in-fact requirement of Art. III standing, a party claiming that a statute unconstitutionally withholds a particular benefit must be in line to receive the benefit if the suit is successful. In Supervisors v. Stanley, 105 U.S. 305, 26 L.Ed. 1044 (1882), shareholders of a national bank attacked the validity of a state property tax statute that did not, contrary to federal law, permit deduction of personal debts from the assessed value of their bank stock. With respect to the constitutional claim of shareholders who had failed to allege the existence of personal debts that could be deducted under a valid statute, the Court reasoned: 47 "What is there to render the [state statute] void as to a shareholder in a national bank, who owes no debts which he can deduct from the assessed value of his shares? The denial of this right does not affect him. He pays the same amount of tax that he would if the law gave him the right of deduction. He would be in no better condition if the law expressly authorized him to make the deduction. What legal interest has he in a question which only affects others? Why should he invoke the protection of the act of Congress in a case where he has no rights to protect? Is a court to sit and decide abstract questions of law in which the parties before it show no interest, and which, if decided either way, affect no right of theirs? 48 * * * * * 49 ". . . If no such right exists, the delicate duty of declaring by this court that an act of State legislation is void, is an assumption of authority uncalled for by the merits of the case, and unnecessary to the assertion of the rights of any party to the suit." Id., at 311-312. 50 It is undisputed that the parties now before us are "a needy wife who qualifies for alimony and a husband who has the property and earnings from which alimony can be paid." 351 So.2d 906, 907 (1977), (Jones, J., dissenting). Under the statute pertinent to the Orrs' divorce, alimony may be awarded against the husband only "[i]f the wife has no separate estate or if it be insufficient for her maintenance." Ala.Code § 30-2-51 (1975). At the time of their divorce, Mr. Orr made no claim that he was not in a position to contribute to his needy wife's support, much less that she should be required to pay alimony to him.2 On the contrary, the amount of alimony awarded by the Alabama trial court was agreed to by the parties, and appellant has never sought a reduction in his alimony obligation on the ground of changed financial circumstances. See Davis v. Davis, 274 Ala. 277, 147 So.2d 828 (1962); Garlington v. Garlington, 246 Ala. 665, 22 So.2d 89 (1945). On these facts, it is clear that appellant is not in a position to benefit from a sex-neutral alimony statute.3 His standing to raise the constitutional question in this case, therefore, cannot be founded on a claim that he would, but for his sex, be entitled to an award of alimony from his wife under the Alabama statutes. B 51 The Court holds that Mr. Orr's standing to raise his equal protection claim lies in the burden he bears under the Alabama statutes. He is required to pay alimony to his needy former spouse while similarly situated women are not. That the State may render Mr. Orr's victory in this Court a hollow one by neutrally extending alimony rights to needy husbands does not, according to the Court, destroy his standing, for the State may elect instead to do away with alimony altogether. The possibility that Alabama will turn its back on the thousands of women currently dependent on alimony checks for their support4 is, as a practical matter, nonexistent. But my conclusion that appellant lacks standing in this Court does not rest on the strong likelihood that Alabama will respond to today's decision by passing a sex-neutral statute. Appellant has simply not demonstrated that either alternative open to the State—even the entire abrogation of alimony—will free him of his burden. 52 The alimony obligation at issue in this case was fixed by an agreement between the parties, and appellant makes no claim that the contract is unenforceable under state law. Indeed, the Court itself concedes that "despite the unconstitutionality of the alimony statutes, Mr. Orr may have a continuing obligation to his former wife based upon [their] agreement." Ante, at 275. The Court casually dismissed the matter, however, as one "which we cannot, and would not, predict." Ante, at 276 n. 5. 53 I cannot accede to the Court's offhand dismissal of so serious an obstacle to the exercise of our jurisdiction. It is not our duty to establish Orr's standing to have his claim decided on the merits. On the contrary, the burden is on him "to meet the minimum requirement of Art. III: to establish that, in fact, the asserted injury was the consequence of the [unconstitutional statute], or that prospective relief will remove the harm." Warth v. Seldin, 422 U.S., at 505, 95 S.Ct., at 2208; Duke Power Co. v. Carolina Environmental Study Group, Inc., supra, 438 U.S., at 72, 98 S.Ct., at 2630; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S., at 260-261, 97 S.Ct., at 560-561, 50 L.Ed.2d 450; Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S., at 38, 96 S.Ct., at 1924; Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). That appellant has not carried this burden is clearly demonstrated by the Court's acknowledgment that his alimony obligation may well be enforced under state contract law. 54 The Court's analysis of Mr. Orr's standing is not aided by its attempt to transform the instant case into one involving race discrimination. See ante, at 273. Of course, a state law imposing alimony obligations on blacks but not whites could be challenged by a black required, by operation of the statute, to pay alimony. Invalidation of the discriminatory alimony statute would relieve him of his burden. If, however, his alimony obligation was enforceable under state contract law independent of the challenged alimony statute, he could hardly argue that his injury was caused by the challenged statute. Invalidation of the statute would bring him no relief. Accordingly, the exercise of federal judicial power on his behalf "would be gratuitous and thus inconsistent with the Art. III limitation." Simon v. Eastern Kentucky Welfare Rights Org., supra, 426 U.S., at 38, 96 S.Ct., at 1924. 55 Nor is the Court's conclusion supported by Linda R. S. v. Richard D., supra. At issue in Linda R. S. was a state statute subjecting to criminal prosecution any "parent" failing to support his "children." State courts had consistently construed the statute to apply solely to the parents of legitimate children and to impose no duty of support on the parents of illegitimate children. The mother of an illegitimate child, claiming that the "discriminatory application" of the statute violated the Equal Protection Clause, sought an injunction directing the local district attorney to prosecute the father of her child for violating the statute. This Court held that she lacked standing to raise her claim. While she "no doubt suffered an injury stemming from the failure of her child's father to contribute support payments," she had made "no showing that her failure to secure support payments result[ed] from the nonenforcement, as to her child's father, of [the child-support statute]." Linda R. S. v. Richard D., 410 U.S., at 618, 93 S.Ct., at 1149. 56 "Thus, if appellant were granted the requested relief, it would result only in the jailing of the child's father. The prospect that prosecution will, at least in the future, result in payment of support can, at best, be termed only speculative. Certainly the 'direct' relationship between the alleged injury and the claim sought to be adjudicated, which previous decisions of this Court suggest is a prerequisite of standing, is absent in this case." Ibid. 57 Like appellant in Linda R. S., Mr. Orr has failed to show a "substantial likelihood"5 that the requested relief will result in termination of his alimony obligation. Thus, far from supporting the Court's finding of standing in appellant Orr, Linda R. S. leads inescapably to the opposite conclusion.6 II 58 Nor is appellant's lack of standing somehow cured by the fact that the state courts reached and decided the merits of his constitutional claim. Article III is a jurisdictional limitation on federal courts, and a state court cannot transform an abstract or hypothetical question into a "case or controversy" merely by ruling on its merits. In Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952), this Court held that a taxpayer lacked the requisite financial interest in the outcome of a First Amendment challenge to a state statute requiring Bible reading in public schools. In dismissing the taxpayer's appeal from an adverse ruling in the State's highest court, this Court held: 59 "We do not undertake to say that a state court may not render an opinion on a federal constitutional question even under such circumstances that it can be regarded only as advisory. But, because our own jurisdiction is cast in terms of 'case or controversy' we cannot accept as the basis for review, nor as the basis for conclusive disposition of an issue of federal law without review, any procedure which does not constitute such." Id., at 434, 72 S.Ct., at 397. 60 Appellant's case, having come to us on appeal rather than on writ of certiorari, is much like Marbury's case in that Congress conferred upon each litigant the right to have his claim heard in this Court. But here, as in Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), and Doremus, supra, we are, in my opinion, prevented by Art. III of the Constitution from exercising the jurisdiction which Congress has sought to confer upon us. III 61 Article III courts are not commissioned to roam at large, gratuitously righting perceived wrongs and vindicating claimed rights. They must await the suit of one whose advocacy is inspired by a "personal stake" in victory. The Framers' wise insistence that those who invoke the power of a federal court personally stand to profit from its exercise ensures that constitutional issues are not decided in advance of necessity and that the complaining party stand in the shoes of those whose rights he champions. Obedience to the rules of standing—the "threshold determinants of the propriety of judicial intervention"7—is of crucial importance to constitutional adjudication in this Court, for when the parties leave these halls, what is done cannot be undone except by constitutional amendment. 62 Much as "Caesar had his Brutus; Charles the First his Cromwell," Congress and the States have this Court to ensure that their legislative Acts do not run afoul of the limitations imposed by the United States Constitution. But this Court has neither a Brutus nor a Cromwell to impose a similar discipline on it. While our "right of expounding the Constitution" is confined to "cases of a Judiciary Nature," we are empowered to determine for ourselves when the requirements of Art. III are satisfied. Thus, "the only check upon our own exercise of power is our own sense of self-restraint." United States v. Butler, 297 U.S. 1, 79, 56 S.Ct. 312, 325, 80 L.Ed. 477 (1936) (Stone, J., dissenting). I do not think the Court, in deciding the merits of appellant's constitutional claim, has exercised the self-restraint that Art. III requires in this case. I would therefore dismiss Mr. Orr's appeal on the authority of Doremus v. Board of Education, supra. 1 The statutes, Ala.Code, Tit. 30 (1975), provide that: "§ 30-2-51. . . . If the wife has no separate estate or if it be insufficient for her maintenance, the judge, upon granting a divorce, at his discretion, may order to the wife an allowance out of the estate of the husband, taking into consideration the value thereof and the condition of his family. "§ 30-2-52. . . . If the divorce is in favor of the wife for the misconduct of the husband, the judge trying the case shall have the right to make an allowance to the wife out of the husband's estate, or not make her an allowance as the circumstances of the case may justify, and if an allowance is made, it must be as liberal as the estate of the husband will permit, regard being had to the condition of his family and to all the circumstances of the case. "§ 30-2-53. . . . If the divorce is in favor of the husband for the misconduct of the wife and if the judge in his discretion deems the wife entitled to an allowance, the allowance must be regulated by the ability of the husband and the nature of the misconduct of the wife." The Alabama Supreme Court has held that "there is no authority in this state for awarding alimony against the wife in favor of the husband. . . . The statutory scheme is to provide alimony only in favor of the wife." Davis v. Davis, 279 Ala. 643, 644, 189 So.2d 158, 160 (1966). 2 There is some uncertainty on this point. It may be that appellant's Circuit Court motion challenging the constitutionality of the statutes could be construed as constituting a claim for alimony. The Appeals Court opinion refers to one of Mr. Orr's arguments as challenging the failure of the statutes to "provide for an award of alimony to . . . males . . .," 351 So.2d 904, 905 (1977), and, in oral argument, appellant's attorney characterized his motion as asserting a claim to such an award. Tr. of Oral Arg. 7-8. Of course, whether or not this was the proper way to assert a claim for alimony may be a question of state law, but the state courts did not challenge appellant's standing on this or any other ground. 3 Careful examination of appellant's allegations reveals that he may not need to rely upon these arguments to demonstrate his standing, for he alleges that he will receive some relief no matter which gender-neutral reform of the statutes Alabama chooses to make. Even if Alabama chooses to burden both men and women with alimony requirements in appropriate circumstances, Mr. Orr argues that a gender-neutral statute would result in lower payments on his part. He argues that the current statutes award alimony to wives based not solely upon need or comparative financial circumstances, but also upon gender-related factors—e. g., the State's view that a man must maintain his wife in the manner to which she has been accustomed, Ortman v. Ortman, 203 Ala. 167, 82 So. 417 (1919). He also argues that alimony agreements are not automatically incorporated into court decrees, but rather are usually first reviewed as to their fairness to the wife, but not to the husband, see Russell v. Russell, 247 Ala. 284, 286, 24 So.2d 124, 126 (1945). Given our disposition of the case, we need not resolve these allegations, but they serve to render unassailable appellant's standing to assert the unconstitutionality of the statutes. 4 This does not preclude any other State, or even Alabama in another case, from holding that contempt proceedings are too late in the process to challenge the constitutionality of a divorce decree already entered without constitutional objection—assuming, of course, that the State's prior proceedings permit fair opportunity to assert the federal right, see NAACP v. Alabama, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964). Indeed, as our Brother POWELL points out, post, at 286, Alabama apparently has a similar rule. See Hughes v. Hughes, 362 So.2d 910 (Ala.Civ.App.), cert. dismissed as improvidently granted, 362 So.2d 918 (Ala.1978), appeal docketed, No. 78-1071. There is, therefore, no reason for concern that today's decision might nullify existing alimony obligations. But the fact that state courts can decline to hear such tardily raised constitutional challenges does not mean that as a matter of federal law they must do so. And where they decide instead to reach the federal question, this Court has jurisdiction. See Beecher v. Alabama, 389 U.S. 35, 37 n. 3, 88 S.Ct. 189, 190 n. 3, 19 L.Ed.2d 35 (1967), and cases cited in text, supra, this page. 5 Whether Mrs. Orr's contempt judgment would survive on the basis of the stipulation alone depends upon the resolution of somewhat knotty state-law problems. The foremost of these is the fact that the present suit is not a simple action for breach of contract, but rather a contempt proceeding for disobeying the court's divorce decree. Moreover, under Alabama law, the divorce court judge does not automatically approve stipulated settlements, but must review them for fairness. Russell v. Russell, supra. How the Alabama courts would treat Mr. Orr's stipulation after the invalidation of the gender-based alimony statutes is a matter which we cannot, and would not, predict. 6 The fact that the State Supreme Court merely quashed the petition for certiorari, so that the highest state court actually to decide the merits of the case was the Court of Appeals, does not alter this result. In Cicenia v. Lagay, 357 U.S. 504, 507-508, n. 2, 78 S.Ct. 1297, 1299, n. 2, 2 L.Ed.2d 1523 (1958), overruled on other grounds, Miranda v. Arizona, 384 U.S. 436, 479 n. 48, 86 S.Ct. 1602, 1630 n. 48, 16 L.Ed.2d 694 (1966), for example, the New Jersey Superior Court decided the case on federal constitutional grounds, although state grounds might have been available, and the State Supreme Court denied certification without giving reasons—precisely the situation present here. In fact, the claim that an independent state ground existed was even stronger in Cicenia than here, because there the trial court, the Essex County Court, had rested its decision on state law. Nonetheless, Cicenia held: "Since the Superior Court had dealt with petitioner's constitutional claims ON THE MERITS . . . JURISDICTION EXISTS. . . . [w]e shall not assume that the New Jersey Supreme Court's decision denying leave to appeal was based on th[e] nonfederal ground." 357 U.S., at 507-508, n. 2, 78 S.Ct., at 1299, n. 2. 7 Our Brother REHNQUIST's dissent contends that Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952), requires dismissal of Mr. Orr's appeal. The quotation from Doremus cited by our Brother REHNQUIST, post, at 299, merely confirms the obvious proposition that a state court cannot confer standing before this Court on a party who would otherwise lack it. But that proposition is wholly irrelevant to this case. Although a state court cannot confer standing in this Court, it can decline to place purely state-law obstacles in the way of an appellant's right to have this Court decide his federal claim. Our Brother REHNQUIST argues that a matter of state contract law, albeit unsettled, denies Orr his otherwise clear standing. But that could only be the case if the Alabama courts had construed the stipulation as continuing to bind Mr. Orr something which the Alabama courts do not do. By addressing and deciding the merits of Mr. Orr's constitutional argument, the Alabama courts have declined to interpose this obstacle to Mr. Orr's standing. 8 Our Brother POWELL's dissent makes two objections to our reaching the merits of this case. The first is that this Court should abstain from deciding the constitutional issue until the cause is remanded to afford the Alabama Supreme Court a second opportunity to consider the case. For authority he cites opinions applying the so-called "Pullman abstention" doctrine. See Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). But that doctrine is applicable only where the state court to be deferred to has not previously examined the case. Not one of the long string of opinions cited by our Brother POWELL, post, at 285-286, approved abstention in a situation like this one, where the court to which the question would be referred already considered the case. The more surprising, indeed disturbing, objection made by our Brother POWELL is the suggestion that the parties may have colluded to bring the constitutional issue before this Court. Post, at 288-289, and n. 4. No evidence whatever, within or outside the record, supports that accusation. And our Brother POWELL suggests none. Indeed, it is difficult to imagine what possible interest Mrs. Orr could have in helping her ex-husband resist her demand for $5,524 in back alimony. 9 Appellee attempts to buttress the importance of this objective by arguing that while "[t]he common law stripped the married woman of many of her rights and most of her property, . . . it attempted to partially compensate by giving her the assurance that she would be supported by her husband." Brief for Appellee 11-12. This argument, that the "support obligation was imposed by the common law to compensate the wife for the discrimination she suffered at the hands of the common law," id., at 11, reveals its own weakness. At most it establishes that the alimony statutes were part and parcel of a larger statutory scheme which invidiously discriminated against women, removing them from the world of work and property and "compensating" them by making their designated place "secure." This would be reason to invalidate the entire discriminatory scheme—not a reason to uphold its separate invidious parts. But appellee's argument is even weaker when applied to the facts of this case, as Alabama has long ago removed, by statute, the elements of the common law appellee points to as justifying further discrimination. See Ala.Const., Art. X, § 209 (married women's property rights). 10 Of course, if upon examination it becomes clear that there is no substantial relationship between the statutes and their purported objectives, this may well indicate that these objectives were not the statutes' goals in the first place. See Ely, The Centrality and Limits of Motivation Analysis, 15 San Diego L.Rev. 1155 (1978). 11 We would also consider whether the purportedly compensatory "classifications in fact penalized women," and whether "the statutory structure and its legislative history revealed that the classification was not enacted as compensation for past discrimination." Califano v. Webster, 430 U.S., at 317, 97 S.Ct., at 1194. 12 It might be argued that Alabama's rule at least relieves the State of the administrative burden of actions by husbands against their wives for alimony. However, when the wife is also seeking alimony, no savings will occur, as a hearing will be required in any event. But even when the wife is willing to forgo alimony, it appears that under Alabama law savings will still not accrue, as Alabama courts review the financial circumstances of the parties to a divorce despite the parties' own views—even when settlement is reached. See Russell v. Russell, 247 Ala. 284, 286, 24 So.2d 124, 126 (1945). Even were this not true, and some administrative time and effort were conserved, "[t]o give a mandatory preference to members of either sex . . . merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause," Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971). 13 Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 109, 58 S.Ct. 443, 450, 82 L.Ed. 685 (1938), is dispositive to this effect. There, the Indiana state courts had available two potential grounds for upholding the actions of a public school in dismissing a teacher. One was a matter purely of state law; the other required holding that the dismissal had not violated the Contracts Clause of the Federal Constitution. The Indiana courts chose the latter course and did not pass upon the state question. While recognizing that the state ground could have been relied upon, Anderson held, as we have held here, that the decision of the state court to reach the merits of the constitutional question without relying on the potential state ground gave this Court jurisdiction. As we have done here, the Court in Anderson proceeded to decide the federal question against the State and reversed the judgment below. The case was remanded, the Court noting that the state-law ground was still available as a defense for the school and could be so considered by the state courts. Similarly, the effect of Mr. Orr's stipulation, and any other matter of substantive state law not yet passed upon, may now be considered by the Alabama courts on remand. * Even if I could agree with Mr. Justice REHNQUIST's view that Mr. Orr's probability of success on the state-law issue is so remote that we should deny him standing to argue the federal question decided by the Alabama Supreme Court, I still would not understand how he reached the conclusion that the litigation between Mr. and Mrs. Orr is not a "case or controversy" within the meaning of Art. III. 1 The Court confuses the questions of the existence of a case or controversy under Art. III with the application of the adequate-and-independent-state-ground doctrine. It is true that the failure of the courts below to rest their decision on a state-law ground means that we are not without power to decide the case for that reason. Cf. Murdock v. Memphis, 20 Wall. 590, 22 L.Ed. 429 (1875). But this does not determine whether the presence in fact of state-law grounds for the decision below bars a federal court from considering this claim under Supervisors v. Stanley, 105 U.S. 305, 26 L.Ed. 1044 (1882). 2 The Court implies that principles of equitable abstention expressed in the Pullman decision never can apply when the court to which the unresolved question of state law will be referred already has considered the case. Ante, at 278 n. 8. But, as the unusual posture of this case illustrates, a state court may have considered a case without having had the relevant state-law questions presented to it. See n. 3, infra. Where this is true, the policies that underlie Pullman should apply with equal force. 3 As the Court notes, in appellee's brief in the Alabama Court of Civil Appeals she stated that "[t]he appellee agrees that the issue before this Court is whether the Alabama alimony laws are unconstitutional because of the gender based classification made in the statutes." Ante, at 276. She made no reference to Alabama authority that already had held that constitutional attacks on the divorce statute would not be heard unless presented at the time the divorce is contested. See Dale v. Dale, 54 Ala.App. 505, 310 So.2d 225 (1975). Even more inexplicable, appellee before this Court has made no reference to Hughes v. Hughes, 362 So.2d 910 (Ala.App.), cert. dismissed as improvidently granted, 362 So.2d 918 (Ala.1978), appeal docketed, No. 78-1071, in spite of that decision's clear relevance to this case. It is pertinent that the initial decision in Hughes was handed down more than seven months before appellee filed her brief before us, and that the final decision of the Supreme Court of Alabama was announced a month before argument in this case. 4 It is curious, to say the least, that neither party in this case has raised these questions. The competency of appellee's counsel is evidenced by the thoroughness of the settlement agreement he negotiated and witnessed. Moreover, the questions not raised are neither abstruse nor difficult. In view of the way in which this case has been presented, we cannot dismiss the possibility of some rapprochement between these parties that could affect the genuineness of a case or controversy. There may well be an innocent explanation for these most unusual circumstances, but the absence of any such explanation appearing from the record suggests the wisdom of not deciding the constitutional issue. 1 2 M. Farrand, The Records of the Federal Convention of 1787, p. 430 (1911). Indeed, on four different occasions the Constitutional Convention rejected a proposal, contained in the "Virginia Plan," to associate Justices of the Supreme Court in a counsel of revision designed to render advice on pending legislation. 1 id., at 21. Suggestions that the Chief Justice be a member of the Privy Council to assist the President, and that the President or either House of Congress be able to request advisory opinions of the Supreme Court were likewise rejected. 2 id., at 328-329, 340-344. 2 The Court suggests that "[i]t may be that appellant's Circuit Court motion challenging the constitutionality of the statutes could be construed as constituting a claim for alimony." Ante, at 271-272 n. 2. The Court further notes that in any event, "the state courts did not challenge appellant's standing on this or any other ground." Ibid. Appellant's motion, made in response to the court's order to show cause why he should not be judged in contempt, provides in pertinent part: "WHEREFORE, your Respondent moves the Court for an order decreeing that: "1. Code of Alabama, Title 34, §§ 31-33 arbitrarily discriminate against male spouses and thus are in violation of the equal protection clause of the United States Constitution and thereby are unconstitutional. "2. A permanent injunction be issued against the continued enforcement of these statutes. "3. The decree ordering your Respondent to pay the Complainant alimony be rendered null and void." App. to Juris. Statement 24a. How this can be construed as constituting a claim for alimony is beyond me. That the state courts did not challenge appellant's standing on his failure to claim entitlement to alimony is wholly irrelevant. We are not here concerned with the question whether Mr. Orr lacked standing under state law to bring this suit in an Alabama court. The Case and Controversy Clause of Art. III is a constitutional limitation on the jurisdiction of federal courts. See Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). 3 The Court states that appellant's standing is rendered "unassailable" by his allegations (1) that under Alabama law a man must maintain his wife in a manner to which she has been accustomed, and (2) that alimony stipulations are reviewed as to their fairness to the wife before being incorporated into court decrees. Ante, at 273-274 n. 3. The Court interprets these allegations as an argument by appellant Orr "that a gender-neutral statute would result in lower payments on his part." Ibid. First, appellant nowhere argues that his alimony obligation would have been less under a sex-neutral statute. The allegations cited by the Court are made in support of appellant's contention that the Alabama alimony statutes were inspired by "archaic notions" about the proper role of women—a contention going to the merits of his equal protection claim rather than his standing to raise it. Second, since his alimony obligation was fixed by an agreement between the parties, appellant could not have seriously made such an argument in any event. Third, even if he had made the argument attributed to him by the Court, it is patently meritless. A gender-neutral alimony statute, by definition, treats husbands and wives the same. Presumably, therefore, a husband claiming under such a statute would be entitled to an amount sufficient to support him in the manner to which he had been accustomed and would be entitled to judicial review of the fairness of any alimony stipulation before its incorporation into the court decree. Far from rendering Mr. Orr's standing "unassailable," the allegations seized upon by the Court are utterly beside the point. 4 The Court suggests that because the Alabama courts are free to hold that the constitutionality of a divorce decree entered without constitutional objection cannot be challenged in contempt proceedings, there is no reason for concern that today's decision will nullify existing alimony obligations. Alabama males currently under court order to pay alimony, however, need not wait until contempt proceedings are lodged against them to raise their constitutional challenge. Rather, they may simply petition the court for relief from the unconstitutional divorce decree. 5 "Our recent cases have required no more than a showing that there is a 'substantial likelihood' that the relief requested will redress the injury claimed to satisfy the second prong of the constitutional standing requirement." Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 75, n. 20, 98 S.Ct. 2620, 2631 n. 20, 57 L.Ed.2d 595 (1978). 6 The Court seizes on our gratuitous observation in Linda R. S. that " 'the proper party to challenge the constitutionality of [the child-support statute] would be a parent of a legitimate child who has been prosecuted under the statute. Such a challenge would allege that because the parents of illegitimate children may not be prosecuted, the statute unfairly discriminates against the parents of legitimate children,' 335 F.Supp. [804], at 806." 410 U.S., at 619 n. 5, 93 S.Ct., at 1149 n. 5. As a statement on standing to challenge a discriminatory criminal statute, the quoted passage cannot be faulted. Clearly, a parent prosecuted under such a statute would satisfy both the injury-in-fact and the causation requirements of standing—invalidation of the statute would totally remove the prosecuted parent's harm. In the instant case, however, the Court itself admits that today's decision may well be gratuitous insofar as appellant Orr is concerned. 7 Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 2215, 45 L.Ed.2d 343 (1975).

12

440 U.S. 445 99 S.Ct. 1200 59 L.Ed.2d 442 James C. ANDERS, Solicitor of Richland County,v.Jesse J. FLOYD. No. 77-1255. March 5, 1979. Rehearing Denied April 23, 1979. See 441 U.S. 928, 99 S.Ct. 2043. PER CURIAM. 1 The motion of Legal Defense Fund for Unborn Children for leave to file a brief, as amicus curiae, is denied. 2 The motion of David Gaetano for leave to file a brief, as amicus curiae, is granted. 3 Appellee was indicted by a grand jury of Richland County, S. C., for criminal abortion and murder in connection with the abortion of a 25-week-old fetus. The District Court enjoined the prosecution, concluding that under Roe v. Wade, 410 U.S. 113, 98 S.Ct. 705, 35 L.Ed.2d 147, (1973), there was no possibility of obtaining a constitutionally binding conviction of appellee. 440 F.Supp. 535 (1977). Because the District Court may have reached this conclusion on the basis of an erroneous concept of "viability," which refers to potential, rather than actual, survival of the fetus outside the womb, Colautti v. Franklin, 439 U.S. 379, 389, 99 S.Ct. 675, 682, 58 L.Ed.2d 596 (1979) the judgment is vacated and the case is remanded to the United States District Court for the District of South Carolina for further consideration in light ofColautti. 4 In addition, it is suggested, in view of the alternative constructions of the South Carolina criminal statutes that are available, that the District Court give further consideration to the possibility of abstention, at least in part, in deference to the pendency of the state-court proceeding. 5 Vacated and remanded. 6 Mr. Justice STEWART dissents.

45

440 U.S. 332 99 S.Ct. 1139 59 L.Ed.2d 358 Arthur F. QUERN, etc., Petitioner,v.John JORDAN, etc. No. 77-841. Argued Nov. 8, 1978. Decided March 5, 1979. Syllabus In Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662, it was held that retroactive welfare benefits awarded by a Federal District Court to the plaintiff class, by reason of wrongful denial of benefits by Illinois officials prior to the entry of the court's order determining the wrongfulness of their actions, violated the Eleventh Amendment, and that in an action under 42 U.S.C. § 1983 "a federal court's remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief . . . and may not include a retroactive award which requires the payment of funds from the state treasury." Edelman, supra, at 677, 94 S.Ct., at 1362. On remand, the District Court ordered the state officials to send to each member of the plaintiff class a notice informing him that he was denied public assistance to which he was entitled, together with a "Notice of Appeal" by which the recipient could request a hearing on the denial of benefits. The Court of Appeals reversed on the ground that the proposed form of notice would have been barred by the Eleventh Amendment, but stated that on remand the District Court could order the state officials to send a "mere explanatory notice to applicants advising them that there is a state administrative procedure available if they desire to have the state determine whether or not they may be eligible for past benefits," and that a returnable notice of appeal could also be provided. Held: 1. Neither Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611, the legislative history cited in that decision, nor this Court's Eleventh Amendment cases subsequent to Edelman cast any doubt on Edelman's holding that & 1983 does not abrogate the Eleventh Amendment immunity of the States. Section 1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it have a history which focuses directly on the question of state liability or shows that Congress considered and firmly decided to abrogate the Eleventh Amendment immunity of the States. Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522, distinguished. Nor does this Court's reaffirmance of Edelman in this case render § 1983 meaningless insofar as States are concerned. Pp. 338-345. 2. The modified notice contemplated by the Court of Appeals constitutes permissible prospective relief and not a "retroactive award which requires payment of funds from the state treasury." Such notice in effect simply informs plaintiff class members that there are existing administrative procedures by which they may receive a determination of eligibility for past benefits, that their federal suit is at an end, and that the federal court can provide them with no further relief. Whether a recipient of the notice decides to take advantage of the available procedures is left completely to the discretion of that particular class member, the federal court playing no role in that decision. And whether or not the class member will receive retroactive benefits rests entirely with the state, its agencies, courts, and legislature, not with the federal court. Pp. 346-349. 563 F.2d 873, affirmed. William A. Wenzel, III, Chicago, Ill., for petitioner. Sheldon H. Roodman, Chicago, Ill., for respondent. 1 REHNQUIST, Justice. 2 This case is a sequel to Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), which we decided five Terms ago. In Edelman we held that retroactive welfare benefits awarded by a Federal District Court to plaintiffs, by reason of wrongful denial of benefits by state officials prior to the entry of the court's order determining the wrongfulness of their actions, violated the Eleventh Amendment.1 The issue now before us is whether that same federal court may, consistent with the Eleventh Amendment, order those state officials to send a mere explanatory notice to members of the plaintiff class advising them that there are state administrative procedures available by which they may receive a determination of whether they are entitled to past welfare benefits. We granted certiorari to resolve an apparent conflict between the decision of the United States Court of Appeals for the Seventh Circuit in this case and that of the Court of Appeals for the Third Circuit in Fanty v. Commonwealth of Pennsylvania, Dept. of Public Welfare, 551 F.2d 2 (CA3 1977).2 435 U.S. 904, 98 S.Ct. 1447, 55 L.Ed.2d 494 (1978). We believe that the case as it now comes to us involves little, if any, unbroken ground in this area, and affirm the judgment of the Seventh Circuit. 3 Following our remand in Edelman, the United States District Court for the Northern District of Illinois, upon motion of the plaintiff, ordered the state officials to send to each member of the plaintiff class a notice informing the recipient: "[Y]ou were denied public assistance to which you were entitled in the amount of $———." Jordan v. Trainor, 405 F.Supp. 802, 809 (1975).3 Enclosed with the required mailing was to be a "Notice of Appeal," which when signed and returned to the Illinois Department of Public Aid, requested a hearing on the denial of benefits. That notice stated: "The department illegally delayed in the processing of my AABD application, and, as a consequence, denied me benefits to which I was and am entitled." Id., at 810. 4 The Court of Appeals, en banc, found that this proposed form of notice would have been barred by the Eleventh Amendment, since it at least purported to decide that Illinois public funds should be used to satisfy the claims of plaintiff class members without the consent of the State by its appropriate officials. Jordan v. Trainor, 563 F.2d 873, 875 (1977).4 The court reversed the District Court's order for this reason, but stated that on remand the District Court could order the state officials to send a "mere explanatory notice to applicants advising them that there is a state administrative procedure available if they desire to have the state determine whether or not they may be eligible for past benefits. A simple returnable notice of appeal form could also be provided." Ibid. In the court's view, such a notice would not violate the distinction set forth in Edelman between prospective relief, which is permitted by the Eleventh Amendment, and retrospective relief, which is not: 5 "The form of notice we envisage would not create a 'liability' against the state. Whether a liability might result would be a matter for state determination, not the federal court. No federal judgment against the state would be created. Such a notice could not be labeled equitable restitution or be considered an award of damages against the state. The defendant makes no issue out of any incidental administrative expense connected with the preparation or mailing of the notice. It has suggested in the record that the notice could be included in the regular monthly mailing. The necessary information comes from a computer. There is no indication that the administrative expense would be substantial." 563 F.2d, at 876. 6 Under the contemplated modified notice procedure, the court stated, members of the plaintiff class would be given no more than "they would have gathered by sitting in the courtroom or by reading and listening to news accounts had the case attracted any attention." Id., at 877-878.5 Three judges dissented on the ground that the majority's revised notice form was barred by the Eleventh Amendment. 7 In Edelman we reaffirmed the rule that had evolved in our earlier cases that a suit in federal court by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment. 415 U.S., at 663, 94 S.Ct., at 1355; see Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573 (1946); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121 (1944). We rejected the notion that simply because the lower court's grant of retroactive benefits had been styled "equitable restitution" it was permissible under the Eleventh Amendment. But we also pointed out that under the landmark decision in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law, even though such an injunction may have an ancillary effect on the state treasury. 415 U.S., at 667-668, 94 S.Ct., at 1357-1358; see Milliken v. Bradley, 433 U.S. 267, 289, 97 S.Ct. 2749, 2761, 53 L.Ed.2d 745 (1977); Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The distinction between that relief permissible under the doctrine of Ex parte Young and that found barred in Edelman was the difference between prospective relief on one hand and retrospective relief on the other.6 8 Petitioner state official devotes a significant part of his brief to an attack on the proposed notice which the District Court required the state officials to send. It is, however, the decision of the Court of Appeals, and not that of the District Court, which we review at the behest of the petitioner. And just as petitioner insists on tilting at windmills by attacking the District Court's decision, respondent suggests that our decision in Edelman has been eviscerated by later decisions such as Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Brief for Respondent 55 n. 37. See also Aldridge v. Turlington, No. TCA-78-830 (N.D.Fla., Nov. 17, 1978); but see Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470 (CA3 1978). As we have noted above, we held in Edelman that in "a [42 U.S.C.] § 1983 action . . . a federal court's remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief, Ex parte Young, supra, and may not include a retroactive award which requires the payment of funds from the state treasury, Ford Motor Co. v. Department of Treasury, supra." 415 U.S., at 677, 94 S.Ct., at 1362. We disagree with respondent's suggestion. This Court's holding in Monell was "limited to local government units which are not considered part of the State for Eleventh Amendment purposes," 436 U.S., at 690 n. 54, 98 S.Ct., at 2035 and our Eleventh Amendment decisions subsequent to Edelman and to Monell have cast no doubt on our holding in Edelman. See Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Milliken v. Bradley, supra; Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Scheuer v. Rhodes, supra.7 9 While the separate opinions in Hutto v. Finney, supra,8 debated the continuing soundness of Edelman after our decision in Monell, any doubt on that score was largely dispelled by Alabama v. Pugh, supra, decided just 10 days after Hutto. In Pugh the Court held, over three dissents, that the State of Alabama could not be joined as a defendant without violating the Eleventh Amendment, even though the complaint was based on 42 U.S.C. § 1983 and the claim was a violation of the Eighth and Fourteenth Amendments similar to that made in Hutto. The Court said: 10 "There can be no doubt, however, that suit against the State and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such a suit. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Worcester County Trust Co. v. Riley, 302 U.S. 292, 58 S.Ct. 185, 82 L.Ed. 268 (1937)." 438 U.S., at 782, 98 S.Ct., at 3058.9 11 The decision in Pugh was consistent both with Monell, which was limited to "local government units," 436 U.S., at 690 n. 54, 98 S.Ct., at 2035 n. 54, and with Fitzpatrick v. Bitzer, supra. In the latter case we found the " 'threshold fact of congressional authorization,' " which had been lacking in Edelman, to be present in the express language of the congressional amendment making Title VII of the Civil Rights Act of 1964 applicable to state and local governments. 427 U.S., at 452, 96 S.Ct., at 2669, quoting Edelman v. Jordan, 415 U.S., at 672, 94 S.Ct., at 1360. 12 Mr. Justice BRENNAN in his opinion concurring in the judgment argues that our holding in Edelman that § 1983 does not abrogate the States' Eleventh Amendment immunity is "most likely incorrect." Post, at 354. To reach this conclusion he relies on "assum[ptions]" drawn from the Fourteenth Amendment, post, at 355, on "occasional remarks" found in a legislative history that contains little debate on § 1 of the Civil Rights Act of 1871, 17 Stat. 13, the precursor to § 1983, post, at 358 n. 15,10 on the reference to "bodies politic" in the Act of Feb. 25, 1871, 16 Stat. 431, the "Dictionary Act," post, at 355-35711 and, finally on the general language of § 1983 itself, post, at 356. But, unlike our Brother BRENNAN, we simply are unwilling to believe, on the basis of such slender "evidence," that Congress intended by the general language of § 1983 to override the traditional sovereign immunity of the States. We therefore conclude that neither the reasoning of Monell or of our Eleventh Amendment cases subsequent to Edelman, nor the additional legislative history or arguments set forth in Mr. Justice BRENNAN's concurring opinion, justify a conclusion different from that which we reached in Edelman.12 13 There is no question that both the supporters and opponents of the Civil Rights Act of 1871 believed that the Act ceded to the Federal Government many important powers that previously had been considered to be within the exclusive province of the individual States.13 Many of the remarks from the legislative history of the Act quoted in Mr. Justice BRENNAN's opinion amply demonstrate this point. Post, at 359-365. See also Monroe v. Pape, 365 U.S. 167, 173-176, 81 S.Ct. 473, 476-478, 5 L.Ed.2d 492 (1961). But neither logic, the circumstances surrounding the adoption of the Fourteenth Amendment, nor the legislative history of the 1871 Act compels, or even warrants, a leap from this proposition to the conclusion that Congress intended by the general language of the Act to overturn the constitutionally guaranteed immunity of the several States.14 In Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), the Court rejected a similar attempt to interpret the word "person" in § 1983 as a withdrawal of the historic immunity of state legislators. The Court's words bear repeating here: 14 "Did Congress by the general language of its 1871 statute mean to overturn the tradition of legislative freedom achieved in England by Civil War and carefully preserved in the formation of State and National Governments here? Did it mean to subject legislators to civil liability for acts done within the sphere of legislative activity? . . . The limits of §§ 1 and 2 of the 1871 statute—now §§ 43 and 47(3) of Title 8—were not spelled out in debate. We cannot believe that Congress—itself a staunch advocate of legislative freedom—would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us." 341 U.S., at 376, 71 S.Ct., at 788. 15 Given the importance of the States' traditional sovereign immunity, if in fact the Members of the 42d Congress believed that § 1 of the 1871 Act overrode that immunity, surely there would have been lengthy debate on this point and it would have been paraded out by the opponents of the Act along with the other evils that they thought would result from the Act. Instead, § 1 passed with only limited debate and not one Member of Congress mentioned the Eleventh Amendment or the direct financial consequences to the States of enacting § 1. We can only conclude that this silence on the matter is itself a significant indication of the legislative intent of § 1. 16 Our cases consistently have required a clearer showing of congressional purpose to abrogate Eleventh Amendment immunity than our Brother BRENNAN is able to marshal. In Employees v. Missouri Public Health Dept., 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973), the Court concluded that Congress did not lift the sovereign immunity of the States by enacting the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219, because of the absence of any indication "by clear language that the constitutional immunity was swept away. It is not easy to infer that Congress in legislating pursuant to the Commerce Clause, which has grown to vast proportions in its applications, desired silently to deprive the States of an immunity they have long enjoyed under another part of the Constitution." 411 U.S., at 285, 93 S.Ct., at 1618.15 In Fitzpatrick v. Bitzer, the Court found present in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the "threshold fact of congressional authorization" to sue the State as employer, because the statute made explicit reference to the availability of a private action against state and local governments in the event the Equal Employment Opportunity Commission or the Attorney General failed to bring suit or effect a conciliation agreement. 427 U.S., at 448 n. 1, 449 n. 2, 452, 96 S.Ct., at 2667 n. 1, 2668 n. 2, 2669; see Equal Opportunity Employment Act of 1972, 86 Stat. 105, 42 U.S.C. § 2000e-5(f)(1); H.R.Rep.No.92-238, pp. 17-19 (1971); S.Rep.No.92-415, pp. 9-11 (1971); S.Conf.Rep.No.92-681, pp. 17-18 (1972); H.R.Conf.Rep.No.92-899, pp. 17-18 (1972), U.S.Code Cong. & Admin.News 1972, p. 2137. Finally, in Hutto v. Finney, decided just last Term, the Court held that in enacting the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, Congress intended to override the Eleventh Amendment immunity of the States and authorize fee awards payable by the States when their officials are sued in their official capacities. 437 U.S., at 693-694, 98 S.Ct., at 2575-2576. Although the statutory language in Hutto did not separately impose liability on States in so many words,16 the statute had "a history focusing directly on the question of state liability; Congress considered and firmly rejected the suggestion that States should be immune from fee awards." Id., at 698 n. 31, 98 S.Ct., at 2578 n. 31. Also, the Court noted that the statute would have been rendered meaningless with respect to States if the Act did not impose liability for attorney's fees on the States. Ibid.; see Employees v. Missouri Public Health Dept., supra, 411 U.S., at 285-286, 93 S.Ct., at 1618-1619. By contrast, § 1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it have a history which focuses directly on the question of state liability and which shows that Congress considered and firmly decided to abrogate the Eleventh Amendment immunity of the States. Nor does our reaffirmance of Edelman render § 1983 meaningless insofar as States are concerned. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).17 17 We turn, then, to the question which has caused disagreement between the Courts of Appeals: does the modified notice contemplated by the Seventh Circuit constitute permissible prospective relief or a "retroactive award which requires the payment of funds from the state treasury"? We think this relief falls on the Ex parte Young side of the Eleventh Amendment line rather than on the Edelman side.18 Petitioner makes no issue of the incidental administrative expense connected with preparing and mailing the notice.19 Instead, he argues that giving the proposed notice will lead inexorably to the payment of state funds for retroactive benefits and therefore it, in effect, amounts to a monetary award. But the chain of causation which petitioner seeks to establish is by no means unbroken; it contains numerous missing links, which can be supplied, if at all, only by the State and members of the plaintiff class and not by a federal court. The notice approved by the Court of Appeals simply apprises plaintiff class members of the existence of whatever administrative procedures may already be available under state law by which they may receive a determination of eligibility for past benefits. The notice of appeal, we are told, is virtually identical to the notice sent by the Department of Public Aid in every case of a denial or reduction of benefits. The mere sending of that notice does not trigger the state administrative machinery. Whether a recipient of notice decides to take advantage of those available state procedures is left completely to the discretion of that particular class member; the federal court plays no role in that decision. And whether or not the class member will receive retroactive benefits rests entirely with the State, its agencies, courts, and legislature, not with the federal court.20 18 The notice approved by the Court of Appeals, unlike that ordered by the District Court, is more properly viewed as ancillary to the prospective relief already ordered by the court. See Milliken v. Bradley, 433 U.S., at 290, 97 S.Ct., at 2762. The notice in effect simply informs class members that their federal suit is at an end, that the federal court can provide them with no further relief, and that there are existing state administrative procedures which they may wish to pursue. Petitioner raises no objection to the expense of preparing or sending it. The class members are "given no more . . . than what they would have gathered by sitting in the courtroom." Jordan v. Trainor, 563 F.2d, at 877-878. The judgment of the Court of Appeals is therefore 19 Affirmed. 20 Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins as to Parts I, II, and III, concurring in the judgment. 21 For the reasons set forth in my dissent in Edelman v. Jordan, 415 U.S. 651, 687, 94 S.Ct. 1347, 1367, 39 L.Ed.2d 662 (1974), I concur in the judgment of the Court.1 22 * It is deeply disturbing, however, that the Court should engage in today's gratuitous departure from customary judicial practice and reach out to decide an issue unnecessary to its holding. The Court today correctly rules that the explanatory notice approved by the Court of Appeals below is "properly viewed as ancillary to . . . prospective relief." Ante, at 349. This is sufficient to sustain the Court's holding that such notice is not barred by the Eleventh Amendment. But the Court goes on to conclude, in what is patently dicta, that a State is not a "person" for purposes of 42 U.S.C. § 1983, Rev.Stat. § 1979.2 23 This conclusion is significant because, only three Terms ago, Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), held that "Congress may, in determining what is 'appropriate legislation' for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts." Id., at 456, 96 S.Ct., at 2671. If a State were a "person" for purposes of § 1983, therefore, its immunity under the Eleventh Amendment would be abrogated by the statute.3 Edelman v. Jordan, supra, had held that § 1983 did not override state immunity, for the reason, as the Court later stated in Fitzpatrick, that "[t]he Civil Rights Act of 1871, 42 U.S.C. § 1983, had been held in Monroe v. Pape, 365 U.S. 167, 187-191, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961), to exclude cities and other municipal corporations from its ambit; that being the case, it could not have been intended to include States as parties defendant." 427 U.S., at 452, 96 S.Ct., at 2669.4 The premise of this reasoning was undercut last Term, however, when Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), upon re-examination of the legislative history of § 1983, held that a municipality was indeed a "person" for purposes of that statute.5 As I stated in my concurrence in Hutto v. Finney, 437 U.S. 678, 703, 98 S.Ct. 2565, 2581, 57 L.Ed.2d 522 (1978), Monell made it "surely at least an open question whether § 1983 properly construed does not make the States liable for relief of all kinds, notwithstanding the Eleventh Amendment." 24 The Court's dicta today would close that open question on the basis of Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978). In that case the State of Alabama had been named as a party defendant in a suit alleging unconstitutional conditions of confinement. The question presented was "[w]hether the mandatory injunction issued against the State of Alabama and the Alabama Board of Corrections violates the State's Eleventh Amendment immunity or exceeds the jurisdiction granted federal courts by 42 U.S.C. § 1983." Id., at 782-783, n. 2, 98 S.Ct., at 3058. The Court held that the State should not have been named as a party defendant. 25 Pugh, however, does not stand for the proposition that a State is not a "person" for purposes of § 1983. Not only does the Court's opinion in that case fail even to mention § 1983, it frames the issue addressed as whether Alabama had "consented to the filing of such a suit." 438 U.S., at 782, 98 S.Ct., at 3058. Since Alabama's consent would have been irrelevant if Congress had intended States to be encompassed within the reach of § 1983, the Court apparently decided the first half of the question presented "[w]hether the mandatory injunction issued against the State of Alabama . . . violates the State's Eleventh Amendment immunity" without considering or deciding the second half—whether the mandatory injunction "exceeds the jurisdiction granted federal courts by 42 U.S.C. § 1983."6 26 This parsing of Pugh is strengthened by a consideration of the circumstances surrounding that decision. Pugh a short per curiam, was issued on the last day of the Term without the assistance of briefs on the merits or argument. Alabama's petition for certiorari and respondents' brief in opposition were filed on February 6, 1978, and April 6, 1978, respectively, months before Monell was announced. They were thus necessarily without the benefit of Monell's major re-evaluation of the legislative history of § 1983.7 Respondents did not even raise the possibility that Alabama might be a "person" for purposes of § 1983.8 Since the issue is not, as the Court now phrases it, whether the Members of this Court were then aware ofMonell, ante, at 340 n. 9, but rather whether they had before them briefs and arguments detailing the implications of Monell for the question of whether a State is a "person" for purposes of § 1983, it is not anomalous that the Court's opinion in Pugh failed to address or consider this issue. 27 The Court's reliance on Pugh is particularly significant because the question whether a State is a "person" for purposes of § 1983 is neither briefed nor argued by the parties in the instant case. Indeed, petitioner states flatly that "the en banc decision of the Seventh Circuit does not rest upon a conclusion that the term 'person' for purposes of § 1983 includes sovereign states, as opposed to state officials, within its ambit. That issue is not the issue before this Court on Petitioner's Writ for Certiorari." Reply Brief for Petitioner 14. Respondent concurs, stating that "it is unnecessary in this case to confront directly the far-reaching question of whether Congress intended in § 1983 to provide for relief directly against States, as it did against municipalities." Brief for Respondent 55 n. 37. 28 Thus, the Court today decides a question of major significance without ever having had the assistance of a considered presentation of the issue, either in briefs or in arguments. The result is pure judicial fiat. II 29 This fiat is particularly disturbing because it is most likely incorrect. Section 1983 was originally enacted as § 1 of the Civil Rights Act of 1871. The Act was enacted for the purpose of enforcing the provisions of the Fourteenth Amendment.9 That Amendment exemplifies the "vast transformation" worked on the structure of federalism in this Nation by the Civil War. Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705 (1972). The prohibitions of that Amendment "are directed to the States . . .. They have reference to actions of the political body denominated a State, by whatever instruments or in whatever modes that action may be taken." Ex parte Virginia, 100 U.S. 339, 346-347, 25 L.Ed. 676 (1880).10 The fifth section of the Amendment provides Congress with the power to enforce these prohibitions "by appropriate legislation." "Congress, by virtue of the fifth section . . ., may enforce the prohibitions whenever they are disregarded by either the Legislative, the Executive, or the Judicial Department of the State. The mode of enforcement is left to its discretion." Virginia v. Rives, 100 U.S. 313, 318, 25 L.Ed. 667 (1880). 30 The prohibitions of the Fourteenth Amendment and Congress' power of enforcement are thus directed at the States themselves, not merely at state officers. It is logical to assume, therefore, that § 1983, in effectuating the provisions of the Amendment by "interpos[ing] the federal courts between the States and the people, as guardians of the people's federal rights," Mitchum v. Foster, supra, 407 U.S., at 242, 92 S.Ct., at 2162, is also addressed to the States themselves. Certainly Congress made this intent plain enough on the face of the statute. 31 Section 1 of the Civil Rights Act of 1871 created a federal cause of action against "any person" who, "under color of any law, statute, ordinance, regulation, custom, or usage of any State," deprived another of "any rights, privileges, or immunities secured by the Constitution of the United States." On February 25, 1871, less than two months before the enactment of the Civil Rights Act, Congress provided that "in all acts hereafter passed . . . the word 'person' may extend and be applied to bodies politic and corporate . . . unless the context shows that such words were intended to be used in a more limited sense."11 § 2, 16 Stat. 431. Monell, held that "[s]ince there is nothing in the 'context' of the Civil Rights Act calling for a restricted interpretation of the word 'person,' the language of that section should prima facie be construed to include 'bodies politic' among the entities that could be sued." 436 U.S., at 689-690 n. 53, 98 S.Ct., at 2035. Even the Court's opinion today does not dispute the fact that in 1871 the phrase "bodies politic and corporate" would certainly have referred to the States.12 See Heim v. McCall, 239 U.S. 175, 188, 36 S.Ct. 78, 82, 60 L.Ed. 206 (1915); McPherson v. Blacker, 146 U.S. 1, 24, 13 S.Ct. 3, 6, 36 L.Ed. 869 (1892); Poin- dexter v. Greenhow, 114 U.S. 270, 288, 5 S.Ct. 903, 912, 29 L.Ed. 185 (1885); Cotton v. United States, 11 How. 229, 231, 13 L.Ed. 675 (1851); Chisholm v. Georgia, 2 Dall. 419, 447, 1 L.Ed. 440 (Iredell, J.), 468 (Cushing, J.) (1793); Utah State Building Comm'n v. Great American Indemnity Co., 105 Utah 11, 16, 140 P.2d 763, 766 (1943); Board of Comm'rs of Hamilton County v. Noyes, 3 Am.L.Rec. 745, 748 (Super.Ct.Cincinnati 1874); 1 J. Wilson, Works 305 (1804); cf. Keith v. Clark, 97 U.S. 454, 460-461, 24 L.Ed. 1071 (1877); Munn v. Illinois, 94 U.S. 113, 124, 24 L.Ed. 77 (1877); Georgia v. Stanton, 6 Wall. 50, 76-77, 18 L.Ed. 721 (1868); Butler v. Pennsylvania, 10 How. 402, 416-417, 13 L.Ed. 472 (1851); Penhallow v. Doane's Administrators, 3 Dall. 54, 92-93, 1 L.Ed. 507 (1795) (Iredell, J.); Mass. Const., Preamble. Indeed, during the very debates surrounding the enactment of the Civil Rights Act, States were referred to as bodies politic and corporate. See, e. g., Cong. Globe, 42d Cong., 1st Sess., 661-662 (1871) (hereinafter Globe) (Sen. Vickers) ("What is a State? Is it not a body politic and corporate?"); cf. id., at 696 (Sen. Edmunds). Thus the expressed intent of Congress, manifested virtually simultaneously with the enactment of the Civil Rights Act of 1871, was that the States themselves, as bodies corporate and politic, should be embraced by the term "person" in § 1 of that Act. 32 The legislative history of the Civil Rights Act of 1871 reinforces this conclusion. The Act was originally reported to the House as H.R. 320 by Representative Shellabarger. At that time Representative Shellabarger stated that the bill was meant to be remedial "in aid of the preservation of human liberty and human rights," and thus to be "liberally and beneficently construed."13 Globe App. 68. The bill was meant to give "[f]ull force and effect . . . to section five" of the Fourteenth Amendment, Globe 322 (Rep. Stoughton),14 see id., at 800 (Rep. Perry); Monell, 436 U.S., at 685 n. 45, 98 S.Ct., at 2033 n. 45, and therefore, like the prohibitions of that Amendment, to be addressed against the States themselves.15 See, e. g., Globe 481-482 (Rep. Wilson); 696 (Sen. Edmunds).16 It was, as Representative Kerr who opposed the bill instantly recognized, "against the rights of the States of this Union." Globe App. 46. Representative Shellabarger, in introducing the bill, made this explicit, stressing the need for "necessary affirmative legislation to enforce the personal rights which the Constitution guaranties, as between persons in the State and the State itself." Id., at 70. See, e. g., id., at 80 (Rep. Perry); Globe 375 (Rep. Lowe); 481-482 (Rep. Wilson); 568 (Sen. Edmunds). Representative Bingham elaborated the point: 33 "The powers of the States have been limited and the powers of Congress extended by the last three amendments of the Constitution. These last amendments—thirteen, fourteen, and fifteen—do, in my judgment, vest in Congress a power to protect the rights of citizens against States, and individuals in States, never before granted. 34 * * * * * 35 "Why not in advance provide against the denial of rights by States, whether the denial be acts of omission or commission, as well as against the unlawful acts of combinations and conspiracies against the rights of the people? 36 "The States never had the right, though they had the power, to inflict wrongs upon free citizens by a denial of the full protection of the laws; because all State officials are by the Constitution required to be bound by oath or affirmation to support the Constitution. As I have already said, the States did deny to citizens the equal protection of the laws, they did deny the rights of citizens under the Constitution, and except to the extent of the express limitations upon the States, as I have shown, the citizen had no remedy. . . . They took property without compensation, and he had no remedy. They restricted the freedom of the press, and he had no remedy. They restricted the freedom of speech, and he had no remedy. They restricted the rights of conscience, and he had no remedy. They bought and sold men who had no remedy. Who dare say, now that the Constitution has been amended, that the nation cannot by law provide against all such abuses and denials of right as these in States and by States, or combination of persons?" Globe App. 83, 85 (emphasis added).17 37 H.R. 320 was necessary, as Senator Edmunds stated, to protect citizens "in the rights that the Constitution gave them . . . against any assault by any State or under any State or through the neglect of any State . . .," Globe 697, and by a "State," Edmunds meant "a corporation . . . an organized thing . . . manifested, represented entirely, and fully in respect to every one of its functions, by that department of its government on which the execution of those functions is respectively devolved." Id., at 696. See id., at 607-608 (Sen. Pool). 38 It was common ground, therefore, that, as Representative Wilson argued, the prohibitions of the Fourteenth Amendment were directed against the State, meaning "the government of the State . . . the legislative, the judicial, and the executive"; that the fifth section of the Amendment had given Congress the power to enforce it by "appropriate legislation," meaning "legislation adequate to meet the difficulties to be encountered to suppress the wrongs existing, to furnish remedies and inflict penalties adequate to the suppression of all infractions of the rights of the citizens"; and that H.R. 320 was such legislation. Globe 481-483. Those who opposed the bill were fully aware of the major implications of such a statute. Representative Blair, for example, rested his opposition on the fact that the bill, including § 1, was aimed at the States in their "corporate and legislative capacity": 39 "The inhibitions in the [Thirteenth, Fourteenth, and Fifteenth] amendments against the United States and the States are against them in their corporate and legislative capacities, for the thing or acts prohibited can alone be performed by them in their corporate or legislative capacities. 40 * * * * * 41 "As the States have the power to violate them and not individuals, we must presume that the legislation provided for is against the States in their corporate and legislative capacity or character and those acting under their laws, and not against the individuals, as such, of the States. I am sustained in this view of the case by the tenth section of the first article of the Constitution of the United States. In it are a number of inhibitions against the States, which it is evident are against them in their corporate and legislative capacity; and to which I respectfully call the attention of the gentlemen who favor this bill." Globe App. 208.18 42 See id., at 209. This conclusion produced an anguished outcry from those committed to unrevised notions of state sovereignty. Representative Arthur, for example, complained that § 1 43 "reaches out and draws within the despotic circle of central power all the domestic, internal, and local institutions and offices of the States, and then asserts over them an arbitrary and paramount control as of the rights, privileges, and immunities secured and protected, in a peculiar sense, by the United States in the citizens thereof. Having done this, having swallowed up the States and their institutions, tribunals, and functions, it leaves them the shadow of what they once were." Globe 365. 44 The answer to such arguments was, of course, that the Civil War had irrevocably and profoundly altered the balance of power between Federal and State Governments: 45 "If any one thinks it is going too far to give the United States this national supervisory power to protect the fundamental rights of citizens of the United States, I do not agree with him. It is not wise to permit our devotion to the reserved rights of the States to be carried so far as to deprive the citizen of his privileges and immunities. 46 "We must remember that it was State rights, perverted I admit from their true significance, that arrayed themselves against the nation and threatened its existence. We must remember that it was for the very purpose of placing in the General Government a check upon this arrogance of some of the States that the fourteenth amendment was adopted by the people. We must remember that, if the legislation we propose does trench upon what have been, before the fourteenth amendment, considered the rights of the States, it is in behalf and for the protection of immunities and privileges clearly given by the Constitution; and that Federal laws and Federal rights must be protected whether domestic laws or their administration are interfered with or not, because the Constitution and the laws made in pursuance thereof are the supreme law of the land. We are not making a constitution, we are enacting a law, and its virtue can be tested without peril by the experiment." Id., at 502 (Sen. Frelinghuysen). 47 In the reconstructed union, national rights would be guaranteed federal protection even from the States themselves. III 48 The plain words of § 1983, its legislative history and historical context, all evidence that Congress intended States to be embraced within its remedial cause of action. The Court today pronounces its conclusion in dicta by avoiding such evidence. It chooses to hear, in the eloquent and pointed legislative history of § 1983, only "silence." Such silence is in fact deafening to those who have ears to listen. But without reason to reach the question, without briefs, without argument, relying on a precedent that was equally ill-informed and in any event not controlling, the Court resolutely opines that a State is not a "person" for purposes of § 1983. The 42d Congress, of course, can no longer pronounce its meaning with unavoidable clarity. Fitzpatrick, however, cedes to the present Congress the power to rectify this erroneous misinterpretation. It need only make its intention plain. 49 Mr. Justice MARSHALL, concurring in the judgment. 50 I concur in the judgment of the Court, for the reasons expressed in my dissenting opinion in Edelman v. Jordan, 415 U.S. 651, 688, 94 S.Ct. 1347, 1368, 39 L.Ed.2d 662 (1974), and my concurring opinion in Employees v. Missouri Public Health Dept., 411 U.S. 279, 287, 93 S.Ct. 1614, 1619, 36 L.Ed.2d 251 (1973). Moreover, I agree that an affirmance here follows logically from the Court's decision in Edelman, because the explanatory notice approved by the Court of Appeals clearly is ancillary to prospective relief. But given that basis for deciding the present case, it is entirely unnecessary for the Court to address the question whether a State is a "person" within the meaning of § 1983. Accordingly, I join Parts I, II, and III of my Brother BRENNAN's opinion. 1 The history of this case is set forth in greater detail in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). 2 In Fanty, the plaintiff class alleged that the manner in which the defendant state officials had collected class members' federal benefits in reimbursement of amounts granted under state welfare laws violated this Court's decision in Philpott v. Essex County Welfare Board, 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973). The District Court agreed, and while it denied retroactive relief against the State on the basis of Edelman v. Jordan, supra, it did require the defendant state officials to notify plaintiff class members that under Philpott they have no legal obligation to make reimbursement out of their federal disability benefits and that as a matter of state law they may have a cause of action against the Department of Public Welfare for refund of prior payments. The Court of Appeals, in three separate opinions, reversed. Chief Judge Seitz was of the opinion that the notice relief was barred by the Eleventh Amendment. Judge Garth, concurring in the result, believed that the Eleventh Amendment issue was "borderline," 551 F.2d, at 6, but voted to reverse on the basis that there was no case or controversy. Judge Hunter dissented on grounds not relevant here. However, he disagreed with Chief Judge Seitz that the Eleventh Amendment prohibited the notice relief. 3 Because this was a class action qualifying under Fed.Rule Civ.Proc. 23(b)(2), the class members had never received notice of the complaint, the original lower court judgment, this Court's decision or its effect on them. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 n. 14, 94 S.Ct. 2140, 2152 n. 14, 40 L.Ed.2d 732 (1974); Fed.Rule Civ.Proc. 23(e). Under Rule 23(d)(2), however, a court may require appropriate notice "for the protection of the members of the class or otherwise for the fair conduct of the action." Prior to ordering notice, the District Court requested the parties to submit information with respect to the number of persons in the plaintiff class, the cost of notifying them, the amounts involved, and other issues affecting the equities of sending notice. Respondent filed his response to the court's request but the state officials submitted no response. Respondent indicated that there were approximately 20,000 to 33,500 members in the plaintiff class. App. 34a. The cost of identifying class members was stated to be simply the cost of running the department's computer for a period necessary to cull out the names of the plaintiff class members. Respondent claimed that there would be no additional cost of notifying class members because the notice could be included in one of the regular mailings to the members of the plaintiff class. Petitioner has not disputed respondent's allegations either below or before this Court. 4 A panel of the Seventh Circuit originally had reversed the District Court's order requiring notice on the ground that the Eleventh Amendment was a "jurisdictional bar to the exercise of federal judicial power concerning past action or inaction of a state with respect to the Aid to the Aged, Blind, or Disabled Program." Jordan v. Trainor, 551 F.2d 152, 155 (1977). 5 In reaching its decision, the Seventh Circuit relied in part on our summary affirmance of Grubb v. Sterrett, 315 F.Supp. 990 (N.D.Ind.), aff'd, 400 U.S. 922, 91 S.Ct. 187, 27 L.Ed.2d 182 (1970), in which the District Court had ordered Indiana public assistance officials to send to plaintiff class members a notice similar to the one at issue here. As the Court of Appeals recognized, the list of summary affirmances overruled in Edelman was not necessarily intended to be exhaustive. See Jordan v. Trainor, 563 F.2d, at 876. However, we prefer to rest our affirmance of the judgment of the Court of Appeals in this case on our conclusion that it is consistent with Edelman. 6 As we stated in Edelman: "[T]hat portion of the District Court's decree which petitioner challenges on Eleventh Amendment grounds goes much further than [Ex parte Young and the cases that had followed it]. It requires payment of state funds, not as a necessary consequence of compliance in the future with a substantive federal-question determination, but as a form of compensation to those whose applications were processed on the slower time schedule at a time when petitioner was under no court-imposed obligation to conform to a different standard. . . . It will to a virtual certainty be paid from state funds, and not from the pockets of the individual state officials who were the defendants in the action. It is measured in terms of a monetary loss resulting from a past breach of a legal duty on the part of the defendant state officials." 415 U.S., at 668, 94 S.Ct., at 1358. 7 Mr. Justice BRENNAN's opinion concurring in the judgment states that "Edelman v. Jordan, supra, had held that § 1983 did not override state immunity, for the reason, as the Court later stated in Fitzpatrick, that '[t]he Civil Rights Act of 1871, 42 U.S.C. § 1983, had been held in Monroe v. Pape, 365 U.S. 167, 187-191, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961), to exclude cities and other municipal corporations from its ambit; that being the case, it could not have been intended to include States as parties defendant.' " Post, at 351. Since Monell overruled Monroe's holding that cities and other municipal corporations are not "persons" within the meaning of § 1983, Mr. Justice BRENNAN's opinion argues that the "premise" of Edelman has been "undercut." Post, at 351. The fallacy of this line of reasoning was aptly demonstrated last Term by Mr. Justice POWELL in his concurring opinion in Hutto, where he stated: "The language in question from Fitzpatrick was not essential to the Court's holding in that case. Moreover, this position ignores the fact that Edelman rests squarely on the Eleventh Amendment immunity, without adverting in terms to the treatment of the legislative history in Monroe v. Pape . . . ." 437 U.S., at 708-709, n. 6, 98 S.Ct., at 2583-2584, n. 6. In fact, Monroe v. Pape is not even cited in Edelman. 8 In Hutto v. Finney, there were three separate opinions in addition to that of the Court. Two opinions expressed the view that the Court had misapplied the rule laid down in Edelman. 437 U.S., at 704, 98 S.Ct., at 2581 (POWELL, J., concurring and dissenting); id., at 710, 98 S.Ct., at 2584 (REHNQUIST, J., dissenting). Mr. Justice BRENNAN, though joining the opinion of the Court, wrote separately to suggest that the Court's opinions in Monell, and Fitzpatrick v. Bitzer, had rendered "the essential premise of our Edelman holding . . . no longer true." 437 U.S., at 703, 98 S.Ct., at 2580. The Court itself in Hutto, however, recognized and applied Edelman's distinction between retrospective and prospective relief. 9 Our Brother BRENNAN in his opinion concurring in the judgment curiously suggests that the language quoted from Pugh in the text could not mean what it, on its face, says, because the briefs in the case were filed before our decision in Monell was announced. Post, at 352-354. But while the parties in Pugh were "without the benefit of Monell § major re-evaluation of the legislative history of § 1983," post, at 352-353, the Members of this Court labored under no similar disability. The decision in Pugh was handed down nearly one month after Monell and 10 days after Hutto, where separate opinions debated this precise point. If, after Monell and Hutto, this Court harbored any doubts about the continued validity of Edelman § conclusion that § 1983 does not constitute a waiver of the Eleventh Amendment immunity of the States, it is inconceivable that the Court would have taken the extraordinary action of summarily reversing a lower court on the basis of Edelman. 10 There was only limited debate on § 1 of the Civil Rights Act of 1871, and it passed without amendment. Monell v. New York City Dept. of Social Services, 436 U.S., at 665, 98 S.Ct., at 2023. The sections that drew most of the debate were those that created certain federal crimes, permitted the President to send the militia to any State with widespread Ku Klux Klan violence, and authorized suspension of the writ of habeas corpus in certain circumstances. Id., at 665 n. 11, 98 S.Ct., at 2023 n. 11. 11 The Dictionary Act was intended to provide a "few general rules for the construction of statutes." Cong.Globe, 41st Cong., 3d Sess., 1474 (1871) (remarks of Rep. Poland). While it was enacted two months before the enactment of the 1871 Civil Rights Act, it came more than five years after passage of § 2 of the Civil Rights Act of 1866, 14 Stat. 27, which served as the model for the language of § 1 of the 1871 Act. Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871) (remarks of Rep. Shellabarger); see Monroe v. Pape, 365 U.S. 167, 183-185, 81 S.Ct. 473, 481-483, 5 L.Ed.2d 492 (1961); post, at 362 n. 17. 12 Mr. Justice BRENNAN's opinion characterizes this conclusion as "gratuitous" and "paten[t] dicta." Post, at 350. But we cannot think of a more "gratuitous" or useless exercise of this Court's discretionary jurisdiction than to decide which of two conflicting interpretations of Edelman v. Jordan is correct, if in truth we believed that Edelman itself no longer were valid. The question does not arise out of the blue; it was extensively discussed in our brother BRENNAN's concurrence in Hutto v. Finney last Term. We therefore fail to see how our reaffirmance of Edelman can be characterized as "dicta." 13 For example, the Act was attacked as an attempt to strip States of the power to punish and proscribe offenses within their borders, e. g., Cong.Globe, 42d Cong., 1st Sess., 396 (1871) (remarks of Rep. Rice); id., at App. 112 (remarks of Rep. Moore); id., at App. 117 (remarks of Sen. Blair), and of their authority to decide when the militia of the United States should be called into their territory to quell domestic disturbances, e. g., id., at 647 (remarks of Sen. Davis); id., at App. 139 (remarks of Rep. McCormick). 14 Indeed the Prigg-Dennison-Day line of cases, relied on so heavily in Monell would surely militate against such a conclusion. 436 U.S., at 672-683, 98 S.Ct., at 2027-2032; see Prigg v. Pennsylvania, 16 Pet. (41 U.S.) 539, 10 L.Ed. 1060 (1842); Kentucky v. Dennison, 24 How. (65 U.S.) 66, 16 L.Ed. 717 (1861); Collector v. Day, 11 Wall. (78 U.S.) 113, 20 L.Ed. 122 (1871). Our Brother BRENNAN's concurrence in the judgment today relies on Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880), and on Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 (1880). But these cases were decided nearly a decade after the enactment of the Civil Rights Act of 1871, and as noted in Monell substantially undercut the Prigg-Dennison-Day line of cases for purposes of enforcement of the Fourteenth Amendment. 436 U.S., at 676, 98 S.Ct., at 2028. But (as was noted in Monell ), it was the Prigg-Dennison-Day line of cases that was "the reigning constitutional theory of [the] day" when the Civil Rights Act of 1871 was debated and enacted. 436 U.S., at 676, 98 S.Ct., at 2028. 15 The Court in Employees "found not a word in the history of the [statute] to indicate a purpose of Congress to make it possible for a citizen of that State or another State to sue the State in the federal courts." 411 U.S., at 285, 93 S.Ct., at 1618. The Court also added that its interpretation of the law did not render the statute's inclusion of state institutions meaningless. Id., at 285-286, 93 S.Ct., at 1618-1619. 16 While Hutto, unlike Fitzpatrick and Employees, did not require an express statutory waiver of the State's immunity, 437 U.S., at 695, 698 n. 31, 98 S.Ct., at 2576, 2578 n. 31, the Court was careful to emphasize that it was concerned only with expenses incurred in litigation seeking prospective relief while the other cases involved retroactive liability for prelitigation conduct. Id., at 695, 98 S.Ct., at 2576. The Court also noted that it was not concerned with a statute that imposed " 'enormous fiscal burdens on the States' " and that if it were, it might require a formal indication of Congress' intent to abrogate the States' Eleventh Amendment immunity, as did Employees and Fitzpatrick. 437 U.S., at 697 n. 27, 98 S.Ct., at 2027 n. 27. Extending § 1983 liability to States obviously would place "enormous fiscal burdens on the States." But we need not reach the question whether an express waiver is required because neither the language of the statute nor the legislative history discloses an intent to overturn the States' Eleventh Amendment immunity by imposing liability directly upon them. 17 The arguments in Mr. Justice BRENNAN's opinion regarding Osborn v. Bank of the United States, 9 Wheat. (22 U.S.) 738, 6 L.Ed. 204 (1824), are similarly unpersuasive. Post, at 359-361, n. 16. Mr. Chief Justice Marshall's opinion in Osborn makes it clear that in determining whether a court can grant relief the key inquiry is whether the state officer was in fact the real party in interest or whether he was only a nominal party. 9 Wheat., at 858. See also Bank of United States v. Planters' Bank of Georgia, 9 Wheat. 904, 907, 6 L.Ed. 244 (1824). Mr. Chief Justice Marshall emphasized this precise point just four years later in his opinion for the Court in Governor of Georgia v. Madrazo, 1 Pet. 110, 7 L.Ed. 73 (1828). In Mandrazo, a vessel carrying slaves was seized and the slaves were delivered into the possession of the Governor of Georgia. The slaves were sold and the proceeds were placed in the state treasury. Mandrazo filed a libel in the Federal District Court, naming the Governor of Georgia, among others, as a defendant. Restitution was ordered by the lower courts, but this Court reversed because although the demand for relief nominally was against the Governor of the State, it was clear that the action in fact sought relief directly from the state treasury, relief that was forbidden by the Eleventh Amendment. "The claim upon the governor, is as a governor; he is sued, not by his name, but by his title. The demand made upon him, is not made personally, but officially. "The decree is pronounced not against the person, but the officer, and appeared to have been pronounced against the successor of the original defendant; as the appealed bond was executed by a different governor from him who filed the information. In such a case, where the chief magistrate of a state is sued, not by his name, but by his style of office, and the claim made upon him is entirely in his official character, we think the state itself may be considered as a party on the record. If the state is not a party, there is no party against whom a decree can be made. No person in his natural capacity is brought before the Court as defendant. This not being a proceeding against the thing, but against the person, a person capable of appearing as a defendant, against whom a decree can be pronounced, must be a party to the cause before a decree can be regularly pronounced." Id., at 123-124 (emphasis added). To similar effect see Kentucky v. Dennison, 24 How., at 97-98, which reaffirmed these principles of Mandrazo and which, as the Court in Monell emphasized, was "well known to Members of Congress" at the time of the passage of the 1871 Act. 436 U.S., at 679, 98 S.Ct., at 2568. To the extent that Davis v. Gray, 16 Wall. 203, 24 L.Ed. 447 (1873), which did no more than affirm an injunctive decree against a state official, is inconsistent with the rule applied in Edelman, it suffices to say that it was repudiated long before the latter decision. In Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), the Court stated: "[W]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants." Id., at 464, 65 S.Ct., at 350. 18 In addition to petitioner's Eleventh Amendment arguments, he contends that the Court of Appeals' notice violates the law of the case as established in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). We disagree. The doctrine of law of the case comes into play only with respect to issues previously determined. In re Sanford Fork & Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414 (1895). On remand, the "Circuit Court may consider and decide any matters left open by the mandate of this court." Id., at 256, 16 S.Ct., at 293. Accord, Wells Fargo & Co. v. Taylor, 254 U.S. 175, 41 S.Ct. 93, 65 L.Ed. 205 (1920). The Court in Edelman considered the constitutionality only of the relief before it. 415 U.S., at 665, 94 S.Ct., at 1356. It was not presented with the question of the propriety of notice relief. Petitioner also claims that the District Court lacked power to order notice under the terms of this Court's remand. The simple answer to this contention is that we remanded the matter in Edelman "for further proceedings consistent with this opinion," and we hold today that the award of notice relief, as fashioned by the Court of Appeals, is not inconsistent with either the spirit or express terms of our decision in Edelman. "While a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues." Sprague v. Ticonic National Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 781, 83 L.Ed. 1184 (1939), citing In re Sanford Fork & Tool Co., supra. 19 It appears from respondent's answers to a District Court request that any expense associated with the preparation and mailing of the notice would be de minimis. See n. 3, supra. 20 As of January 1, 1974, the Aid to the Aged, Blind, and Disabled program was replaced by a completely federal-funded Supplemental Security Income program. Pub.L. 92-603, Title III, § 301, 86 Stat. 1465. Petitioner argues that the notice relief is impermissible because if retroactive benefits ultimately are awarded to the plaintiff class members, there is little likelihood that the Federal Government will reimburse the State for assistance payments made relating to a now defunct program. Thus, Illinois would have to bear the total cost of such retroactive payments. This fact may well be relevant to the state agency's or court's determination of whether to award retroactive benefits. But since the notice relief does not constitute a money judgment, it is not at all relevant to the question of the propriety of the notice fashioned by the Court of Appeals. Petitioner also states that even if the Department of Public Aid determines to grant retroactive relief, it may not request the Comptroller to draw, or the Treasurer to make payments from, funds appropriated for a current fiscal year for an outstanding obligation incurred during a prior fiscal year without the express authorization from the legislature. See Reply Brief for State Petitioner 5. Thus, as a result of the lapse of Public Aid appropriations for fiscal years 1968, 1969, 1970, and 1971, petitioner claims that members of the plaintiff class would be required to resort to filing claims against the State in the Illinois Court of Claims. These facts may influence a plaintiff class member in deciding whether to pursue existing state remedies or the legislature in determining whether to give its approval to a payment of retroactive benefits, but they do not affect our conclusion that the notice relief awarded here is permissible under the Eleventh Amendment. 1 In Edelman v. Jordan, 415 U.S., at 687-688, 94 S.Ct., at 1367-1368, I stated: "This suit is brought by Illinois citizens against Illinois officials. In that circumstance, Illinois may not invoke the Eleventh Amendment, since that Amendment bars only federal court suits against States by citizens of other States. Rather, the question is whether Illinois may avail itself of the nonconstitutional but ancient doctrine of sovereign immunity as a bar to respondent's claim for retroactive AABD payments. In my view Illinois may not assert sovereign immunity for the reason I expressed in dissent in Employees v. Missouri Public Health Dept., 411 U.S. 279, 298, 93 S.Ct. 1614, 1625, 36 L.Ed.2d 251 (1973): the States surrendered that immunity in Hamilton's words, 'in the plan of the Convention,' that formed the Union, at least insofar as the States granted Congress specifically enumerated powers. See id., at 319 n. 7, 93 S.Ct., at 1635 n. 7; Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). Congressional authority to enact the Social Security Act, of which AABD is a part, former 42 U.S.C. §§ 1381-1385 (now replaced by similar provisions in 42 U.S.C. §§ 801-804 (1970 ed., Supp.II), is to be found in Art. I, § 8, cl. 1, one of the enumerated powers granted Congress by the States in the Constitution. I remain of the opinion that 'because of its surrender, no immunity exists that can be the subject of a congressional declaration or a voluntary waiver,' 411 U.S., at 300, 93 S.Ct., at 1626, and thus have no occasion to inquire whether or not Congress authorized an action for AABD retroactive benefits, or whether or not Illinois voluntarily waived the immunity by its continued participation in the program against the background of precedents which sustained judgments ordering retroactive payments." 2 Section 1983 states: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 3 There is no question but that § 1983 was enacted by Congress under § 5 of the Fourteenth Amendment. Section 1983 was originally the first section of an Act entitled "An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States . . . ." 17 Stat. 13. 4 This reasoning had been employed by several lower courts which had considered this question. See, e. g., United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 86 n. 2 (CA3 1969) ("In view of the Supreme Court's holding in Monroe v. Pape . . . that a municipal corporation is not a 'person' subject to suit within the meaning of the Civil Rights Act, the conclusion that states are not persons within the meaning of the Act is inescapable"); Williford v. California, 352 F.2d 474, 476 (CA9 1965). 5 For a discussion of the implications of Monell for this question, see Aldridge v. Turlington, Civ. Act. No. TCA-78-830 (ND Fla., Nov. 17, 1978). 6 This is what I take to be the significance of the observation of my Brother STEVENS in Pugh : "Surely the Court does not intend to resolve summarily the issue debated by my Brothers in their separate opinions in Hutto v. Finney, 437 U.S. 678, 700 [98 S.Ct. 2565, 2579, 57 L.Ed.2d 522] (BRENNAN, J., concurring), and 708-709 n. 6 [98 S.Ct. 2583 n. 6] (POWELL, J., concurring in part and dissenting in part)." 438 U.S., at 783 n. * [98 S.Ct., at 3058 n. *] (1978) (STEVENS, J., dissenting). Cf. The Supreme Court, 1977 Term, 92 Harv.L.Rev. 57, 325-326 (1978). 7 Indeed, the entire discussion of the issue in the petition for certiorari is as follows: "The grant of an injunction against the State and the Board of Corrections in an action based upon 42 U.S.C. § 1983 is in direct conflict with decisions of other courts of appeal which hold that neither a State nor a State agency is a 'person' within the meaning of the statute and amenable to suit under it. Meredith v. Arizona, 523 F.2d 481 (9th Cir. 1975); Curtis v. Everette, 489 F.2d 516 (3rd Cir. 1973). The decisions below conflict, at least in principle, with this Court's holding in City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), that municipalities are not 'persons' under 42 U.S.C. § 1983." Pet. for Cert. in Alabama v. Pugh, O.T. 1977, No. 77-1107, pp. 11-12. 8 The discussion of the issue by the respondents in Pugh was unilluminating: "Supreme Court Rule 19(1) states that certiorari will only be 'granted where there are special and important reasons therefor.' The second issue raised by the Petitioners challenges the injunction against the State of Alabama and the Alabama Board of Corrections alleging: (1) each is immune from suit under the Eleventh Amendment; (2) neither is a 'person' subject to 42 U.S.C. 1983 jurisdiction; and (3) Edelman v. Jordan, 415 U.S. 651 [94 S.Ct. 1347, 39 L.Ed.2d 662] (1974) and Ex Parte Young, 209 U.S. 123 [28 S.Ct. 441, 52 L.Ed. 714] (1908) bar judgments against the State for prospective costs of compliance with an order. Under the facts of these cases, the questions presented are not only unimportant but are essentially irrelevant. "First, additional defendants enjoined include all members of the Alabama Board of Corrections and numerous other prison officials who would clearly remain bound by the injunction issued, Scheuer v. Rhodes, 416 U.S. 232 [94 S.Ct. 1683, 40 L.Ed.2d 90] (1974); Edelman v. Jordan, 415 U.S. 651 [94 S.Ct. 1347, 39 L.Ed.2d 662] (1974) and have the authority in their official capacity to carry out the court's orders. Second, the State of Alabama and the Board of Corrections were only named defendants in the Pugh case and not the James case. Therefore, any action taken on this issue in Pugh would not affect the same relief granted in James. Third, this issue was never thought important enough by counsel for the petitioners to raise, brief or argue in the trial court. Fourth, the Court of Appeals did not see fit to speak to this issue at all. Fifth, whether the State of Alabama and/or the Board of Corrections are enjoined in addition to the members of the Board of Corrections has absolutely no practical effect on what has happened or will happen under the court's order." Brief in Opposition in Alabama v. Pugh, O.T. 1977, No. 77-1107, pp. 9-10. 9 See n. 3, supra. 10 "We have said the prohibitions of the Fourteenth Amendment are addressed to the States. They are, 'No State shall make or enforce a law which shall abridge the privileges or immunities of citizens of the United States, . . . nor deny to any person within its jurisdiction the equal protection of the laws.' " 100 U.S., at 346. "It is these which Congress is empowered to enforce, and to enforce against State action, however put forth, whether that action be executive, legislative, or judicial. Such enforcement is no invasion of State sovereignty. No law can be, which the people of the States have, by the Constitution of the United States, empowered Congress to enact." Ibid. 11 Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), held that the word "may" in the Act was to be interpreted as the equivalent of "shall": "Such a mandatory use of the extended meanings of the words defined by the Act is . . . required for it to perform its intended function—to be a guide to 'rules of construction' of Acts of Congress. See [Cong. Globe, 41st Cong., 3d Sess., 775 (1871)] (remarks of Sen. Trumbull)." Id., at 689 n. 53, 98 S.Ct., at 2035. 12 The phrase would also have referred to the United States. As Mr. Chief Justice Marshall stated: "The United States is a government, and, consequently, a body politic and corporate . . .." United States v. Maurice, 26 Fed.Cas. No. 15747, 2 Brock. 96, 109 (CC Va.1823). See Van Brocklin v. Tennessee, 117 U.S. 151, 154, 6 S.Ct. 670, 672, 29 L.Ed. 845 (1886); Dugan v. United States, 3 Wheat. 172, 178, 4 L.Ed. 362 (1818) (argument of Attorney General William Wirt). In construing the meaning of the term "person" in a Texas law creating a statute of limitations for suits to recover real estate "as against any person in peaceable and adverse possession thereof," this Court stated: "Of course, the United States were not bound by the laws of the State, yet the word 'person' in the statute would include them as a body politic and corporate. Sayles, Art. 3140; Martin v. State, 24 Texas, 61, 68." Stanley v. Schwalby, 147 U.S. 508, 514, 517, 13 S.Ct. 418, 422, 37 L.Ed. 259 (1893). See United States v. Shirey, 359 U.S. 255, 257 n. 2, 79 S.Ct. 746, 747 n. 2, 3 L.Ed.2d 789 (1959); Ohio v. Helvering, 292 U.S. 360, 370, 54 S.Ct. 725, 727, 78 L.Ed. 1307 (1934); cf. Pfizer Inc. v. India, 434 U.S. 308, 315-316 n. 15, 98 S.Ct. 584, 589 n. 15, 54 L.Ed.2d 563 (1978). 13 Monell, supra, stated that "there can be no doubt that § 1 of the Civil Rights Act was intended . . . to be broadly construed . . . ." 436 U.S., at 700, 98 S.Ct., at 2041. See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 399-400, and n. 17, 99 S.Ct. 1171, 1176-1177, and n. 17, 59 L.Ed.2d 401 (1979). Senator Thurman of Ohio, who opposed the Act, stated with respect to § 1 that "there is no limitation whatsoever upon the terms that are employed, and they are as comprehensive as can be used." Cong.Globe, 42d Cong., 1st Sess., App. 217 (1871) (hereinafter Globe App.) (emphasis added). 14 One of the reasons given by the Court in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), for not requiring an "express statutory waiver of the State's immunity," ante, at 344 n. 16, before applying to the States the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988, was that the Act had been "enacted to enforce the Fourteenth Amendment." 437 U.S., at 698 n. 31, 98 S.Ct., at 2578. 15 It was common ground, at least after the Fourteenth Amendment, that Congress could "dea[l] with States and with citizens." Globe 777 (Sen. Frelinghuysen). See id., at 793 (Rep. Poland). Representative Willard of Vermont, for example, who voted for H.R. 320, opposed the Sherman amendment, which would have held a municipal corporation liable for damages to its inhabitants by private persons " 'riotously and tumultuously assembled,' " Monell, supra, at 664, 98 S.Ct., at 2022, on the grounds that the Fourteenth Amendment imposed liability directly on the States and not on such municipal corporations: "I hold that this duty of protection, if it rests anywhere, rests on the State, and that if there is to be any liability visited upon anybody for a failure to perform that duty, such liability should be brought home to the State. Hence, in my judgment, this section would be liable to very much less objection, both in regard to its justice and its constitutionality, if it provided that if in any State the offenses named in this section were committed, suit might be brought against the State, judgment obtained, and payment of the judgment might be enforced upon the treasury of the State." Globe 791. See id., at 756-757 (Sen. Edmunds). There was general agreement, however, that just as Congress could not impose affirmative obligations on municipalities, Monell, supra, at 681 n. 40, 98 S.Ct., at 2031, n. 40, so it could not "command a State officer to do any duty whatever, as such." Globe 795 (Rep. Blair). See id., at 799 (Rep. Farnsworth); Collector v. Day, 11 Wall. 113 (1871); Kentucky v. Dennison, 24 How. 66, 16 L.Ed. 717 (1861); Prigg v. Pennsylvania, 16 Pet. 539, 10 L.Ed. 1060 (1842). Contrary to the suggestion of the Court, ante, at 341 n. 14, however, the Prigg-Dennison-Day line of cases, which stands for the principle that "the Federal Government . . . has no power to impose on a State officer, as such, any duty whatever," 24 How., at 107, no more "militate[s] against" the conclusion that States are "persons" for purposes of § 1983, than it militates against the conclusion that municipalities are such persons. Everyone agreed, after all, that state officers, as such, would be subject to liability for violations of § 1983. The doctrine of coordinate sovereignty, relied on in the Prigg-Dennison-Day line of cases, would not have distinguished between such liability and the liability of the State itself. See Monell, 436 U.S., at 682, 98 S.Ct., at 2031. 16 A view of the reach of § 1 suggested by occasional remarks in the legislative history of H.R. 320 to the effect that "[t]he Government can act only upon individuals," Globe App. 251 (Sen. Morton), was rejected last Term when Monell held that municipalities were "persons" for purposes of § 1983. It was a view colored by the belief that, since a "State always acts through instrumentalities," Globe 334 (Rep. Hoar), State violations of the Fourteenth Amendment could most effectively be reached through imposing liability on the state officials through whom States acted. As Representative Burchard stated: "In the enforcement of the observance of duties imposed directly upon the people by the Constitution, the General Government applies the law directly to persons and individual acts. It may punish individuals for interference with its prerogatives and infractions of the rights it is authorized to protect. For the neglect or refusal of a State to perform a constitutional duty, the remedies and power of enforcement given to the General Government are few and restricted. It cannot perform the duty the Constitution enjoins upon the State. If a State fails to appoint presidential electors, or its Legislature to choose Senators, or its people to elect Representatives, Congress cannot act for them. Nor do prohibitions upon States authorize Congress to exercise the forbidden power. It may doubtless require State officers to discharge duties imposed upon them as such officers by the Constitution of the United States. A State office must be assumed with such limitations and burdens, such duties and obligations, as the Constitution of the United States attaches to it. The General Government cannot punish the State, but the officer who violates his official constitutional duty can be punished under Federal law. What more appropriate legislation for enforcing a constitutional prohibition upon a State than to compel State officers to observe it? Its violation by the State can only be consummated through the officers by whom it acts." Globe App. 314. It is noteworthy that, even under this view, § 1983 would abrogate the Eleventh Amendment immunity of States to the extent necessary to provide full relief for any plaintiff suing a state officer. Cf. Globe 365-366 (Rep. Arthur); 385 (Rep. Lewis); Globe App. 217 (Sen. Thurman). Thus, even if this limited approach had emerged out of concern for the Eleventh Amendment immunity of States, the distinction "between prospective relief on one hand and retrospective relief on the other," ante, at 337, which was drawn by Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), would be eliminated by the congressional enactment of § 1983. This is not anomalous, however, since the 42d Congress would have had no way to anticipate Edelman's distinction, and would much more probably have had in mind the decision of Mr. Chief Justice Marshall in Osborn v. Bank of United States, 9 Wheat. 738, 6 L.Ed. 204 (1824), which held: "It may, we think, be laid down as a rule which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently, the 11th amendment, which restrains the jurisdiction granted by the constitution over suits against States, is, of necessity, limited to those suits in which a State is a party on the record. The amendment has its full effect, if the constitution be construed as it would have been construed, had the jurisdiction of the Court never been extended to suits brought against a State, by the citizens of another State, or by aliens. "The State not being a party on the record, and the Court having jurisdiction over those who are parties on the record, the true question is, not one of jurisdiction, but whether, in the exercise of its jurisdiction, the Court ought to make a decree against the defendants; whether they are to be considered as having a real interest, or as being only nominal parties." Id., at 857-858. Four years later the Court, again per Mr. Chief Justice Marshall, stated that a suit against the office, as opposed to the person, of the Governor of a State had the effect of making the State a party of record, Governor of Georgia v. Madrazo, 1 Pet. 110, 7 L.Ed. 73 (1828), but the essential principle remained unaltered, as evidenced by Davis v. Gray, 16 Wall. 203, 21 L.Ed. 447 (1873), a case decided two years after the Civil Rights Act of 1871: "In deciding who are parties to the suit the court will not look beyond the record. Making a State officer a party does not make the State a party, although her law may have prompted his action, and the State may stand behind him as the real party in interest. A State can be made a party only by shaping the bill expressly with that view, as where individuals or corporations are intended to be put in that relation to the case." Id., at 220. For the legislators of the 42d Congress, therefore, an action under § 1983 directed at state officers, regardless of the effect of the suit on the State itself, would preserve the Eleventh Amendment immunity of States, so long as States themselves were not named parties. To the extent subsequent decisions of this Court have introduced an Eleventh Amendment bar to such suits when "the action is in essence one for the recovery of money from the state," Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945), this bar would be eliminated by the congressional enactment of § 1983. Since in the instant case neither the State of Illinois nor the office of the Governor of Illinois are parties "on the record," even a limited reading of the reach of § 1983 should therefore hold the Eleventh Amendment inapplicable. 17 Section 1 of H.R. 320 was modeled after § 2 of the Civil Rights Act of 1866, 14 Stat. 27, which imposed criminal penalties on "any person" who, "under color of any law, statute, ordinance, regulation, or custom," deprived "any inhabitant of any State or Territory" of "any right secured . . . by this act." As Representative Shellabarger stated: "That section [§ 2] provides a criminal proceeding in identically the same case as this one [§ 1] provides a civil remedy . . .." Globe App. 68. Representative Bingham noted the limited application of the remedy provided by § 2: "It is clear that if Congress do so provide by penal laws for the protection of these rights [guaranteed by the Fourteenth Amendment], those violating them must answer for the crime, and not the States. The United States punishes men, not States, for a violation of its law." Globe App. 85-86. Representative Bingham was thus able to distinguish, as apparently the Court is not, ante, at 341 n. 11, between the reach of the word "person" in § 2 of the Civil Rights Act of 1866, and its reach in § 1 of the Civil Rights Act of 1871. 18 Representative Blair reached this conclusion after reasoning that if the bill were interpreted as applicable only to individuals, it would not be able to fulfill the purposes of the Reconstruction Amendments.

12

440 U.S. 391 99 S.Ct. 1171 59 L.Ed.2d 401 LAKE COUNTRY ESTATES, INC., et al., Petitioners,v.TAHOE REGIONAL PLANNING AGENCY, etc., et al. No. 77-1327. Argued Dec. 4, 1978. Decided March 5, 1979. Syllabus California and Nevada entered into a Compact, later consented to by Congress, to create respondent Tahoe Regional Planning Agency (TRPA) to coordinate and regulate development in the Lake Tahoe Basin resort area and to conserve its natural resources. The Compact authorized TRPA to adopt and enforce a regional plan for land use, transportation, conservation, recreation, and public services. Petitioners, Basin property owners, brought suit in Federal District Court alleging that TRPA and its individual members and executive officer (also respondents) had adopted a land-use ordinance that destroyed the value of petitioners' property in violation of the Fifth and Fourteenth Amendments, and seeking monetary and equitable relief. To support their federal claim, petitioners asserted, inter alia, that respondents had acted under color of state law and that therefore their cause of action was authorized by 42 U.S.C. § 1983, and jurisdiction was provided by 28 U.S.C. § 1343. The District Court dismissed the complaint, holding that although a cause of action for "inverse condemnation" was sufficiently alleged, the action could not be maintained against TRPA because it had no authority to condemn property and that the individual respondents were immune from liability. The Court of Appeals, while reinstating the complaint against the individual respondents on other grounds, rejected petitioners' claims based on §§ 1983 and 1343, holding that congressional approval had transformed the Compact into federal law with the result that respondents had acted pursuant to federal authority rather than under color of state law. The court further held that TRPA was immune from suit under the Eleventh Amendment and that with respect to the individual respondents they should be absolutely immune for conduct of a legislative character and qualifiedly immune for executive action. Held: 1. Petitioners stated a cause of action under § 1983 and hence properly invoked federal jurisdiction under § 1343. The requirement of federal approval of the Compact did not foreclose a finding that respondents' conduct was "under color of state law" within the meaning of § 1983. The facts with respect to TRPA's operation—such as that its implementation depended upon the appointment of members by both States and their subdivisions and upon financing by counties; that the appointees, in discharging their duties as TRPA officials, also serve the interests of the appointing units; that federal involvement is limited to the appointment of one nonvoting member; and that each State has an absolute right to withdraw from the Compact—adequately characterize respondents' alleged actions as "under color of state law." Pp. 398-400. 2. TRPA is not immune from liability under the Eleventh Amendment. The States' intention in creating TRPA, the terms of the Compact, and TRPA's actual operation make clear that nothing short of an absolute rule would allow TRPA to claim sovereign immunity, and because the Eleventh Amendment prescribes no such rule, TRPA is subject to "the judicial power of the United States" within the meaning of that Amendment. Pp. 400-402. 3. To the extent that the evidence discloses that the individual respondents were acting in a legislative capacity, they are entitled to absolute immunity from federal damages liability. "Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good," Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 95 L.Ed. 1019, and this reasoning is equally applicable to federal, state, and regional legislators. Whatever potential damages liability regional legislators may face as a matter of state law, petitioners' federal claims do not encompass the recovery of damages from TRPA members acting in a legislative capacity. Pp. 402-406. 566 F.2d 1353, reversed in part and affirmed in part. John J. Bartko, San Francisco, Cal., for petitioners. Kenneth C. Rollston, South Lake Tahoe, Cal., and E. Clement Shute, Jr., Asst. Atty. Gen., San Francisco, Cal., for respondents. Mr. Justice STEVENS delivered the opinion of the Court. 1 We granted certiorari to decide whether the Tahoe Regional Planning Agency, an entity created by Compact between California and Nevada, is entitled to the immunity that the Eleventh Amendment provides to the compacting States themselves.1 436 U.S. 943, 98 S.Ct. 2843, 56 L.Ed.2d 784. The case also presents the question whether the individual members of the Agency's governing body are entitled to absolute immunity from federal damages claims when acting in a legislative capacity. 2 Lake Tahoe, a unique mountain lake, is located partly in California and partly in Nevada. The Lake Tahoe Basin, an area comprising 500 square miles, is a popular resort area that has grown rapidly in recent years.2 3 In 1968, the States of California and Nevada agreed to create a single agency to coordinate and regulate development in the Basin and to conserve its natural resources. As required by the Constitution,3 in 1969 Congress gave its consent to the Compact, and the Tahoe Regional Planning Agency (TRPA) was organized.4 The Compact authorized TRPA to adopt and to enforce a regional plan for land use, transportation, conservation, recreation, and public services.5 4 Petitioners own property in the Lake Tahoe Basin. In 1973, they filed a complaint in the United States District Court for the Eastern District of California alleging that TRPA, the individual members of its governing body, and its executive officer had adopted a land-use ordinance and general plan, and engaged in other conduct, that destroyed the economic value of petitioners' property.6 Petitioners alleged that respondents had thereby taken their property without due process of law and without just compensation in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States. They sought monetary and equitable relief. 5 Petitioners advanced alternative theories to support their federal claim. First, they asserted that the alleged violations of the Fifth and Fourteenth Amendments gave rise to an implied cause of action, comparable to the claim based on an alleged violation of the Fourth Amendment recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, and that jurisdiction could be predicated on 28 U.S.C. § 1331.7 Second, they claimed that respondents had acted under color of state law and therefore their cause of action was authorized by 42 U.S.C. § 19838 and jurisdiction was provided by 28 U.S.C. § 1343.9 6 The District Court dismissed the complaint. Although it concluded that the complaint sufficiently alleged a cause of action for "inverse condemnation,"10 it held that such an action could not be brought against TRPA because that agency did not have the authority to condemn property. The court also held that the individual defendants were immune from liability for the exercise of the discretionary functions alleged in the complaint. 7 On appeal, the Court of Appeals for the Ninth Circuit affirmed the dismissal of TRPA, but reinstated the complaint against the individual respondents. 566 F.2d 1353. Addressing first the questions of cause of action and jurisdiction, the Court of Appeals rejected petitioners' claims based on §§ 1983 and 1343. The court held that congressional approval had transformed the Compact between the States into federal law. As a result, the respondents were acting pursuant to federal authority, rather than under color of state law, and §§ 1983 and 1343 could not be invoked to provide a cause of action and federal jurisdiction. But the court accepted petitioners' alternative argument: It held that they had alleged a deprivation of due process in violation of the Fifth and Fourteenth Amendments, that an implied remedy comparable to that upheld in Bivens, supra, was available, and that federal jurisdiction was provided by § 1331. 8 Having found a cause of action and a basis for federal jurisdiction, the court turned to the immunity questions. Although the point had not been argued, the Court of Appeals decided that the Eleventh Amendment immunized TRPA from suit in a federal court. With respect to the individual respondents, the Court of Appeals held that absolute immunity should be afforded for conduct of a legislative character and qualified immunity for executive action. Since the record did not adequately disclose whether the challenged conduct was legislative or executive, the court remanded for a hearing. 9 Petitioners ask this Court to hold that TRPA is not entitled to Eleventh Amendment immunity and that the individual respondents are not entitled to absolute immunity when acting in a legislative capacity. Because none of the respondents filed a cross-petition for certiorari, we have no occasion to review the Court of Appeals' additional holding that a violation of the Due Process Clause was adequately alleged.11 For purposes of our decision, we assume the sufficiency of those allegations. 10 * Before addressing the immunity issues, we must consider whether petitioners properly invoked the jurisdiction of a federal court. While respondents did not cross petition for certiorari, they now argue that the Bivens rationale does not apply to a claim based on the deprivation of property rather than liberty, and therefore the Court of Appeals' jurisdictional analysis was defective. 11 We do not normally address any issues other than those fairly comprised within the questions presented by the petition for certiorari and any cross-petitions. An exception to this rule is the question of jurisdiction: even if not raised by the parties, we cannot ignore the absence of federal jurisdiction. In this case, however, respondents' attack on the Court of Appeals' Bivens holding fails to support dismissal for want of jurisdiction for two reasons. 12 First, respondents' "jurisdictional" arguments are not squarely directed at jurisdiction itself, but rather at the existence of a remedy for the alleged violation of their federal rights. Faced with a similar claim in Mt. Healthy Board of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 we found that the cause-of-action argument was "not of the jurisdictional sort which the Court raises on its own motion." Id., at 279, 97 S.Ct., at 572. Since the petitioners in Mt. Healthy had "failed to preserve the issue whether the complaint stated a claim upon which relief could be granted," id., at 281, 97 S.Ct., at 573, the Court simply assumed, without deciding, that the suit could properly be brought. 13 Second, even if the lack of a cause of action were considered a jurisdictional defect in a suit brought under § 1331,12 we may not dismiss for that reason if the record discloses that federal jurisdiction does in fact exist. In this case, we need not even reach the Bivens question to conclude that there is both a cause of action and federal jurisdiction. 14 Section 1983 provides a remedy for individuals alleging deprivations of their constitutional rights by action taken "under color of state law." The Court of Appeals incorrectly assumed that the requirement of federal approval of the interstate Compact foreclosed the possibility that the conduct of TRPA and its officers could be found to be "under color of state law" within the meaning of § 1983.13 15 The Compact had its genesis in the actions of the compacting States, and it remains part of the statutory law of both States.14 The actual implementation of TRPA, after federal approval was obtained, depended upon the appointment of governing members and executives by the two States and their subdivisions and upon mandatory financing secured, by the terms of the Compact, from the counties.15 In discharging their duties as officials of TRPA, the state and county appointees necessarily have also served the interests of the political units that appointed them. The federal involvement, by contrast, is limited to the appointment of one nonvoting member to the governing board.16 While congressional consent to the original Compact was required, the States may confer additional powers and duties on TRPA without further congressional action. And each State retains an absolute right to withdraw from the Compact. 16 Even if it were not well settled that § 1983 must be given a liberal construction,17 these facts adequately characterize the alleged actions of the respondents as "under color of state law" within the meaning of that statute. Federal jurisdiction therefore rests on § 1343, and there is no need to address the question whether there is an implied remedy for violation of the Fifth or the Fourteenth Amendment. II 17 The Court of Appeals held that California and Nevada had delegated authority ordinarily residing in each of those States to TRPA. Because "the bi-state Authority serves as an agency of the participant states, exercising a specially aggregated slice of state power," the court concluded "that the TRPA is protected by sovereign immunity, preserved for the states by the Eleventh Amendment." 566 F.2d at 1359-1360. 18 The reasoning of the Court of Appeals would extend Eleventh Amendment immunity to every bistate agency unless that immunity were expressly waived. TRPA argues that the propriety of this result is evidenced by the special constitutional requirement of congressional approval of any interstate compact. Any agency that is so important that it could not even be created by the States without a special Act of Congress should receive the same immunity that is accorded to the States themselves. 19 We cannot accept such an expansive reading of the Eleventh Amendment. By its terms, the protection afforded by that Amendment is only available to "one of the United States." It is true, of course, that some agencies exercising state power have been permitted to invoke the Amendment in order to protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the State itself.18 But the Court has consistently refused to construe the Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a "slice of state power."19 20 If an interstate compact discloses that the compacting States created an agency comparable to a county or municipality, which has no Eleventh Amendment immunity, the Amendment should not be construed to immunize such an entity. Unless there is good reason to believe that the States structured the new agency to enable it to enjoy the special constitutional protection of the States themselves, and that Congress concurred in that purpose, there would appear to be no justification for reading additional meaning into the limited language of the Amendment. 21 California and Nevada have both filed briefs in this Court disclaiming any intent to confer immunity on TRPA. They point to provisions of their Compact that indicate that TRPA is to be regarded as a political subdivision rather than an arm of the State. Thus TRPA is described in Art. III(a) as a "separate legal entity" and in Art. VI(a) as a "political subdivision." Under the terms of the Compact, 6 of the 10 governing members of TRPA are appointed by counties and cities, and only 4 by the 2 States.20 Funding under the Compact must be provided by the counties, not the States.21 Finally, instead of the state treasury being directly responsible for judgments against TRPA, Art. VII(f) expressly provides that obligations of TRPA shall not be binding on either State. 22 The regulation of land use is traditionally a function performed by local governments. Concern with the proper performance of that function in the bistate area was a primary motivation for the creation of TRPA itself, and gave rise to the specific controversy at issue in this litigation. Moreover, while TRPA, like cities, towns, and counties, was originally created by the States, its authority to make rules within its jurisdiction is not subject to veto at the state level. Indeed, that TRPA is not in fact an arm of the State subject to its control is perhaps most forcefully demonstrated by the fact that California has resorted to litigation in an unsuccessful attempt to impose its will on TRPA.22 23 The intentions of Nevada and California, the terms of the Compact, and the actual operation of TRPA make clear that nothing short of an absolute rule, such as that implicit in the holding of the Court of Appeals, would allow TRPA to claim the sovereign immunity provided by the Constitution to Nevada and California. Because the Eleventh Amendment prescribes no such rule, we hold that TRPA is subject to "the judicial power of the United States" within the meaning of that Amendment.23 III 24 We turn, finally, to petitioners' challenge to the Court of Appeals' holding that the individual respondents are absolutely immune from federal damages liability for actions taken in their legislative capacities. 25 The immunity of legislators from civil suit for what they do or say as legislators has its roots in the parliamentary struggles of 16th- and 17th-century England; such immunity was consistently recognized in the common law and was taken as a matter of course by our Nation's founders.24 In Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019, this Court reasoned that Congress, in enacting § 1983 as part of the Civil Rights Act of 1871, could not have intended "to overturn the tradition of legislative freedom achieved in England by Civil War and carefully preserved in the formation of State and National Governments here." 341 U.S., at 376, 71 S.Ct., at 788. It therefore held that state legislators are absolutely immune from suit under § 1983 for actions "in the sphere of legitimate legislative activity." 341 U.S., at 376, 71 S.Ct., at 788. 26 Petitioners do not challenge the validity of the holding in Tenney, or of the decisions recognizing the absolute immunity of federal legislators.25 Rather, their claim is that absolute immunity should be limited to the federal and state levels, and should not extend to individuals acting in a legislative capacity at a regional level. In support of this proposed distinction, petitioners argue that the source of immunity for state legislators is found in constitutional provisions, such as the Speech or Debate Clause, which have no application to a body such as TRPA. In addition, they point out that because state legislatures have effective means of disciplining their members that TRPA does not have, the threat of possible personal liability is necessary to deter lawless conduct by the governing members of TRPA.26 27 We find these arguments unpersuasive. The Speech or Debate Clause of the United States Constitution27 is no more applicable to the members of state legislatures than to the members of TRPA. The States are, of course, free to adopt similar clauses in their own constitutions, and many have in fact done so.28 These clauses reflect the central importance attached to legislative freedom in our Nation. But the absolute immunity for state legislators recognized in Tenney reflected the Court's interpretation of federal law; the decision did not depend on the presence of a speech or debate clause in the constitution of any State, or on any particular set of state rules or procedures available to discipline erring legislators. Rather, the rule of that case recognizes the need for immunity to protect the "public good." As Mr. Justice Frankfurter pointed out: 28 "Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives. The holding of this Court in Fletcher v. Peck, 6 Cranch 87, 130, 3 L.Ed. 162, that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned." 341 U.S., at 377, 71 S.Ct., at 788. 29 This reasoning is equally applicable to federal, state, and regional legislators.29 Whatever potential damages liability regional legislators may face as a matter of state law, we hold that petitioners' federal claims do not encompass the recovery of damages from the members of TRPA acting in a legislative capacity.30 30 Like the Court of Appeals, we are unable to determine from the record the extent to which petitioners seek to impose liability upon the individual respondents for the performance of their legislative duties. We agree, however, that to the extent the evidence discloses that these individuals were acting in a capacity comparable to that of members of a state legislature, they are entitled to absolute immunity from federal damages liability. 31 The judgment of the Court of Appeals is reversed in part and affirmed in part. 32 It is so ordered. 33 Mr. Justice BRENNAN, dissenting in part. 34 I join Part I of Mr. Justice BLACKMUN's opinion dissenting in part. In addition I would not reach the question, which the Court discusses in dicta,ante, at 401, whether compacting States can create an agency protected by Eleventh Amendment immunity. In all other respects I join the Court's opinion. 35 Mr. Justice MARSHALL, dissenting in part. 36 The Court today extends absolute immunity to nonelected regional officials for their legislative acts. Because extension of such extraordinary protection is without support in either precedent or policy, I cannot join Part III of the Court's opinion. 37 In Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), this Court declined to construe 42 U.S.C. § 1983 as abrogating state legislators' unqualified immunity from suits that arise out of their legislative activity. Underlying the decision in Tenney was a recognition of the unique status of the legislative privilege, maintained for several centuries at common law and enshrined in the Federal Constitution, Art. I, § 6, as well as in all but seven of the States' constitutions. 341 U.S., at 372-375, 71 S.Ct., at 786-787. Absent evidence of explicit congressional intent, the Court was unwilling to strip state legislators of a protection so long enjoyed when there remained power in the voters to "discourag[e] or correc[t]" abuses by their elected representatives. Id., at 378, 71 S.Ct., at 789. 38 Neither of the premises on which Tenney rested can sustain today's holding. Immunity for appointed regional officials is without common-law antecedents or state constitutional status. Even the Compact does not purport to confer immunity on TRPA officials, and neither California nor Nevada has claimed any such intent in the briefs filed in the instant case. More significantly, none of TRPA's 10-member governing board is elected. Six are appointed by county and city governments in the area, two are appointed by the Governors of California and Nevada respectively, and two are members by virtue of their offices in state natural resource agencies. Compact, Art. III(a). Thus, no member of the board is directly accountable to the public for his legislative acts. To cloak these officials with absolute protection where control by the electorate is so attenuated subverts the very system of checks and balances that the doctrine of legislative privilege was designed to secure. Insulating appointed officials from liability, no matter how egregious their "legislative" misconduct, is unlikely to enhance the integrity of the decisional process. Nor will public support for the outcome of such processes be fostered by a scheme placing these decision-makers beyond constitutional constraints. 39 Equally troubling is the majority's refusal to confront the logical implications of its analysis. To be sure, the Court expressly reserves the question whether individuals performing legislative functions at the local level should be afforded absolute immunity from federal damages claims. Ante, at 404 n. 26. But the majority's reasoning in this case leaves little room to argue that municipal legislators stand on a different footing than their regional counterparts. Surely the Court's supposition that the "cost and inconvenience and distractions of a trial" will impede officials in the " 'uninhibited discharge of their legislative duty,' " ante, at 405, quoting Tenney v. Brandhove, supra, at 377, 71 S.Ct., at 788, applies with equal force whether the officials occupy local or regional positions. Moreover, the Court implies that the test for conferring unqualified immunity is purely functional. Ante, at 405, n. 30. If the sole inquiry under that test is the nature of the officials' responsibilities, see ibid., not the common-law and constitutional underpinnings of the privilege itself or the wisdom of extending it to nonelected officials, then presumably any appointed member of a municipal government can claim absolute protection for his legislative acts. 40 A doctrine that denies redress for constitutional wrongs should, in my judgment, be narrowly confined to those contexts where history and public policy compel its acceptance. Today's decision both expands the scope of immunity beyond such limits and lays the groundwork for further extension. 41 I respectfully dissent. 42 Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN joins as to Part I, dissenting in part. 43 * I cannot conclude so easily, as the Court does, ante, at 405-406, that the members of TRPA are absolutely immune from liability from federal claims for what ultimately may be determined to be legislative acts. Nor do I know what the Court means by a "regional legislator"—other than its conclusion that members of TRPA are such—or where the line is now to be drawn between a "regional legislator" and a member of a public body somewhat farther down the scale of entities in our varied political structures. 44 It is difficult for me to associate the members of TRPA with federal or state legislators. Their duties are not solely legislative; they possess some executive powers. They are not in equipoise with other branches of government, and the concept of separation of powers has no relevance to them. They are not subject to the responsibility and the brake of the electoral process. And there is no provision for discipline within the body, as the House of Congress and the state legislatures possess. 45 I therefore am not now prepared to agree that the members of TRPA enjoy absolute immunity, against federal claims, for their "legislative" acts. I think they are entitled to qualified immunity within the limitations outlined in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), and Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Those cases, it seems to me, set forth the guidelines appropriate for this one, and I would follow them in the present context. II 46 I also do not join the Court in its flat ruling, ante, at 404 that the Speech or Debate Clause of our Federal Constitution, Art. I, § 6, has no application to state legislatures. That may well be, but some federal courts have ruled otherwise, Eslinger v. Thomas, 476 F.2d 225, 228 (CA4 1973) (holding the Clause to be applicable); In re Grand Jury Proceedings, 563 F.2d 577, 582-583 (CA3 1977), and United States v. Gillock, 587 F.2d 284, 286 (CA6 1978) (both recognizing a federal common-law speech or debate privilege for state legislators based in part on the federal Speech or Debate Clause), and the controversy on this point remains a live one. See United States v. Craig, 528 F.2d 773, 776 (CA7), opinion on rehearing en banc, 537 F.2d 957, cert. denied sub nom. Markert v. United States, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 609 (1976). Because the issue of application of the Clause to state legislatures (as distinguished from TRPA) is not presented here, I would not decide it with a passing fiat. 1 See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662. The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." 2 The Senate Report on the Compact describes the lake and its background as follows: "Lake Tahoe, a High Sierra Mountain lake, is famed for its scenic beauty and pristine clarity. Of recent geologic origin, the 190-square-mile lake bore little evidence of even natural aging processes when it was discovered by John Fremont in 1844. Because of its size, its 1,645-foot depth and its physical features, Lake Tahoe was able to resist pollution even when human activity began accelerating as a result of settlement and early logging operations. Even by 1962 its waters were still so transparent that a metal disc 20 centimeters in diameter reportedly could be seen at a depth of 136 feet and a light transmittance to a depth of nearly 500 feet as detected with hydrophotometer. "Only two other sizable lakes in the world are of comparable quality—Crater Lake in Oregon, which is protected as part of the Crater Lake National Park, and Lake Baikal in the Soviet Union. Only Lake Tahoe, however, is so readily accessible from large metropolitan centers and is so adaptable to urban development." S.Rep.No. 91-510, pp. 3-4 (1969). 3 Article I, § 10, cl. 3, of the Constitution provides: "No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." 4 See Tahoe Regional Planning Compact, 83 Stat. 360, Cal.Gov't Code Ann. §§ 66800-66801 (West Supp.1977), Nev.Rev.Stat. §§ 277.190-277.230 (1973) (hereinafter cited as Compact). 5 Compact, Arts. V and VI. 6 The States of California and Nevada and the county of El Dorado were originally named as defendants but either were not properly served or have been dismissed as parties. 7 The amount in controversy exceeds $10,000. Title 28 U.S.C. § 1331, the general federal-question jurisdiction statute, provides in part: "The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity." 8 Title 42 U.S.C. § 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 9 Title 28 U.S.C. § 1343 provides in part: "The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: * * * * * "(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States." 10 See 2 P. Nichols, Eminent Domain § 6.21 (rev. 3d ed. 1976). 11 The issue we do not address is clearly stated in the following footnote to the Court of Appeals opinion: "Under the strict standard of pleading called for by Pacific States Box & Basket Co. v. White, 296 U.S. 176, 56 S.Ct. 159, 80 L.Ed. 138 (1935), none of the complaints in any of the cases on appeal would withstand a motion to dismiss. They lack specific factual allegations which, if proved, would rebut the presumption of constitutionality that the Pacific States Court accorded acts of administrative and legislative bodies. "Although Pacific States has never been explicitly overruled, we do not believe that it represents the present state of the law because it was decided two years before the promulgation of the Federal Rules of Civil Procedure. We find no precedent in the Ninth Circuit applying Pacific States to an analogous case since the Rules took effect. "In Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), the Supreme Court explained the modern philosophy of pleading: " '[A]ll the Rules require is "a short and plain statement of the claim" that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. . . . The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.' Id., at 47-48, 78 S.Ct., at 103 (citations omitted). "Thus a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. 2A J. Moore, Federal Practice ¶ 12.08 (1975). "The allegations of 'taking,' even though phrased in terms of inverse condemnation, are sufficient to show that appellants complained that the TRPA exercised its police powers improperly, and that they relied on the due process clauses of the Fifth and Fourteenth Amendments." 566 F.2d, at 1359 n. 9. 12 See University of California Regents v. Bakke, 438 U.S. 265, 380, 98 S.Ct. 2733, 2794, 57 L.Ed.2d 750 (WHITE, J.); United States v. Griffin, 303 U.S. 226, 229, 58 S.Ct. 601, 82 L.Ed. 764. 13 The fact that the Compact at issue here required congressional consent to be effective clearly does not itself mean that action taken pursuant to it does not qualify as being "under color of state law." This Court has, in the past, accepted that state regulations are properly considered "state law" even though they required federal approval prior to their implementation. See Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442; King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118. 14 See n. 4, supra. 15 Compact, Arts. III(a), VII(a). 16 § 3, 83 Stat. 369. Section 6, 83 Stat. 369, also reserves to Congress the right to require TRPA to furnish information and data that it considers appropriate. 17 Section 1983 originated as § 1 of the Civil Rights Act of 1871. In introducing that Act in Congress, Representative Shellabarger pointed out: "This Act is remedial and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such statutes are liberally and beneficently construed . . . the largest latitude consistent with the words employed is uniformly given in construing such statutes." Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871). 18 See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662; Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389. 19 See Mt. Healthy Board of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471, Moor v. County of Alameda, 411 U.S. 693, 717-721, 93 S.Ct. 1785, 1799-1801, 36 L.Ed.2d 596; Lincoln County v. Luning, 133 U.S. 529, 530, 10 S.Ct. 363, 33 L.Ed. 766; Compact, Art. VIII(b). 20 Compact, Art. III(a). In addition, 10 of the 17 members of the Advisory Planning Commission established by the Compact are to be associated with local agencies, 4 others are to be residents of the region, and only 1 is from state government. Compact, Art. III(h). 21 Compact, Art. VII(a). 22 See California v. TRPA, 516 F.2d 215 (CA9 1975). 23 Because of our disposition of this question, we need not address petitioners' argument that, even assuming that TRPA might be entitled to Eleventh Amendment immunity, such protection was affirmatively waived by the compacting States. See Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804. 24 See Tenney v. Brandhove, 341 U.S. 367, 372-375, 71 S.Ct. 783, 786-787, 95 L.Ed. 1019; Scheuer v. Rhodes, 416 U.S. 232, 239 n. 4, 94 S.Ct. 1683, 1688, n. 4, 40 L.Ed.2d 90, Developments in the Law—Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1200 (1977) (legislative immunity "enjoys a unique historical position"). 25 See Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912; Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377. 26 In support of these arguments, petitioners invoke decisions of the Courts of Appeals denying absolute immunity to subordinate officials such as county supervisors and members of a park district board. Williams v. Anderson, 562 F.2d 1081, 1101 (CA8 1977) (school board members); Jones v. Diamond, 519 F.2d 1090, 1101 (CA5 1975) (county supervisors); Curry v. Gillette, 461 F.2d 1003, 1005 (CA6), cert. denied, sub nom. Marsh v. Curry, 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 492 (1972) (alderman); Progress Development Corp. v. Mitchell, 286 F.2d 222, 231 (CA7 1961) (members of park district board and village board of trustees); Nelson v. Knox, 256 F.2d 312, 314-315 (CA6 1958) (city commissioners); Cobb v. Malden, 202 F.2d 701, 706-707 (CA1 1953) (McGruder, C. J., concurring) (city councilmen). Respondents, on the other hand, contend that in most, if not all, of the cases in which absolute immunity has been denied, the individuals were not in fact acting in a legislative capacity. We need not resolve this dispute. Whether individuals performing legislative functions at the purely local level, as opposed to the regional level, should be afforded absolute immunity from federal damages claims is a question not presented in this case. 27 Article I, § 6, of the United States Constitution provides in part that "for any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place." 28 See Tenney v. Brandhove, supra, at 375, 71 S.Ct., at 787. 29 There is no allegation in this complaint that any members of TRPA's governing board profited personally from the performance of any legislative act. App. 8-12. If the respondents have enacted unconstitutional legislation, there is no reason why relief against TRPA itself should not adequately vindicate petitioners' interests. See Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611. 30 This holding is supported by the analysis in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895, which recognized absolute immunity for individuals performing judicial and prosecutorial functions within the Department of Agriculture. In that case, we rejected the argument that absolute immunity should be denied because the individuals were employed in the Executive Branch, reasoning that "[j]udges have absolute immunity not because of their particular location within the Government but because of the special nature of their responsibilities." Id., at 511, 98 S.Ct., at 2913. This reasoning also applies to legislators.

78

440 U.S. 410 99 S.Ct. 1182 59 L.Ed.2d 416 State of NEVADA et al., Petitioners,v.John Michael HALL, etc., et al. No. 77-1337. Argued Nov. 7, 1978. Decided March 5, 1979. Rehearing Denied April 16, 1979. See 441 U.S. 917, 99 S.Ct. 2018. Syllabus Respondents, California residents, brought this suit in a California court for damages against petitioner State of Nevada and others for injuries respondents sustained when a Nevada-owned vehicle on official business collided on a California highway with a vehicle occupied by respondents. After the California Supreme Court, reversing the trial court, held Nevada amenable to suit in the California courts, Nevada, on the basis of the Full Faith and Credit Clause of the Federal Constitution, unsuccessfully invoked a Nevada statute limiting to $25,000 any tort award against the State pursuant to its statutory waiver of sovereign immunity. Following trial, damages were awarded respondents for $1,150,000, and the judgment in their favor was affirmed on appeal. Held : A State is not constitutionally immune from suit in the courts of another State. Pp. 414-427. (a) The doctrine that no sovereign may be sued in its own courts without its consent does not support a claim of immunity in another sovereign's courts. Pp. 414-418. (b) The need for constitutional protection against one State's being sued in the courts of another State was not discussed by the Framers, and nothing in Art. III authorizing the judicial power of the United States or in the Eleventh Amendment limitation on that power provides any basis, explicit or implicit, for this Court to limit the judicial powers that California has exercised in this case. Pp. 418-421. (c) The Full Faith and Credit Clause does not require a State to apply another State's law in violation of its own legitimate public policy. Pacific Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940. Here California, which has provided by statute for jurisdiction in its courts over residents and nonresidents alike to allow those negligently injured on its highways to secure full compensation for their injuries in California courts, is not required to surrender jurisdiction to Nevada or to limit respondents' recovery to the $25,000 Nevada statutory maximum. Pp. 421-424. (d) The specific limitations that certain constitutional provisions such as Art. I, § 8, and Art. IV, § 2, place upon the sovereignty of the States do not imply that any one State's immunity from suit in the courts of another State is anything more than a matter of comity, and nothing in the Constitution authorizes or obligates this Court to frustrate California's policy of fully compensating those negligently injured on its highways. Pp. 424-427. 74 Cal.App.3d 280, 141 Cal.Rptr. 439, affirmed. Michael W. Dyer, Deputy Atty. Gen., Carson City, Nev., for petitioners. Everett P. Rowe, San Jose, Cal., for respondents. Mr. Justice STEVENS delivered the opinion of the Court. 1 In this tort action arising out of an automobile collision in California, a California court has entered a judgment against the State of Nevada that Nevada's own courts could not have entered. We granted certiorari to decide whether federal law prohibits the California courts from entering such a judgment or, indeed, from asserting any jurisdiction over another sovereign State. 2 The respondents are California residents. They suffered severe injuries in an automobile collision on a California highway on May 13, 1968. The driver of the other vehicle, an employee of the University of Nevada, was killed in the collision. It is conceded that he was driving a car owned by the State, that he was engaged in official business, and that the University is an instrumentality of the State itself. 3 Respondents filed this suit for damages in the Superior Court for the city of San Francisco, naming the administrator of the driver's estate, the University, and the State of Nevada as defendants. Process was served on the State and the University pursuant to the provisions of the California Vehicle Code authorizing service of process on nonresident motorists.1 The trial court granted a motion to quash service on the State, but its order was reversed on appeal. The California Supreme Court held, as a matter of California law, that the State of Nevada was amenable to suit in California courts and remanded the case for trial. Hall v. University of Nevada, 8 Cal.3d 522, 105 Cal.Rptr. 355, 503 P.2d 1363. We denied certiorari. 414 U.S. 820, 94 S.Ct. 114, 38 L.Ed.2d 52. 4 On remand, Nevada filed a pretrial motion to limit the amount of damages that might be recovered. A Nevada statute places a limit of $25,000 on any award in a tort action against the State pursuant to its statutory waiver of sovereign immunity.2 Nevada argued that the Full Faith and Credit Clause of the United States Constitution3 required the California courts to enforce that statute. Nevada's motion was denied and the case went to trial. 5 The jury concluded that the Nevada driver was negligent and awarded damages of $1,150,000.4 The Superior Court entered judgment on the verdict and the Court of Appeal affirmed. After the California Supreme Court denied review, the State of Nevada and its University successfully sought a writ of certiorari. 436 U.S. 925, 98 S.Ct. 2817, 56 L.Ed.2d 767. 6 Despite its importance,the question whether a State may claim immunity from suit in the courts of another State has never been addressed by this Court. The question is not expressly answered by any provision of the Constitution; Nevada argues that it is implicitly answered by reference to the common understanding that no sovereign is amenable to suit without its consent—an understanding prevalent when the Constitution was framed and repeatedly reflected in this Court's opinions. In order to determine whether that understanding is embodied in the Constitution, as Nevada claims,5 it is necessary to consider (1) the source and scope of the traditional doctrine of sovereign immunity; (2) the impact of the doctrine on the framing of the Constitution; (3) the Full Faith and Credit Clause; and (4) other aspects of the Constitution that qualify the sovereignty of the several States. 7 * The doctrine of sovereign immunity is an amalgam of two quite different concepts, one applicable to suits in the sovereign's own courts and the other to suits in the courts of another sovereign. 8 The immunity of a truly independent sovereign from suit in its own courts has been enjoyed as a matter of absolute right for centuries. Only the sovereign's own consent could qualify the absolute character of that immunity. 9 The doctrine, as it developed at common law, had its origins in the feudal system. Describing those origins, Pollock and Maitland noted that no lord could be sued by a vassal in his own court, but each petty lord was subject to suit in the courts of a higher lord. Since the King was at the apex of the feudal pyramid, there was no higher court in which he could be sued.6 The King's immunity rested primarily on the structure of the feudal system and secondarily on a fiction that the King could do no wrong.7 10 We must, of course, reject the fiction. It was rejected by the colonists when they declared their independence from the Crown,8 and the record in this case discloses an actual wrong committed by Nevada. But the notion that immunity from suit is an attribute of sovereignty is reflected in our cases. 11 Mr. Chief Justice Jay described sovereignty as the "right to govern";9 that kind of right would necessarily encompass the right to determine what suits may be brought in the sovereign's own courts. Thus, Mr. Justice Holmes explained sovereign immunity as based "on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends."10 12 This explanation adequately supports the conclusion that no sovereign may be sued in its own courts without its consent, but it affords no support for a claim of immunity in another sovereign's courts. Such a claim necessarily implicates the power and authority of a second sovereign; its source must be found either in an agreement, express or implied, between the two sovereigns, or in the voluntary decision of the second to respect the dignity of the first as a matter of comity. 13 This point was plainly stated by Mr. Chief Justice Marshall in The Schooner Exchange v. McFaddon, 7 Cranch 116, 3 L.Ed. 287, which held that an American court could not assert jurisdiction over a vessel in which Napoleon, the reigning Emperor of France, claimed a sovereign right. In that case, the Chief Justice observed: 14 "The jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereign power. 15 "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. 16 "All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source." Id., at 136. 17 After noting that the source of any immunity for the French vessel must be found in American law, the Chief Justice interpreted that law as recognizing the common usage among nations in which every sovereign was understood to have waived its exclusive territorial jurisdiction over visiting sovereigns, or their representatives, in certain classes of cases.11 18 The opinion in The Schooner Exchange makes clear that if California and Nevada were independent and completely sovereign nations, Nevada's claim of immunity from suit in California's courts would be answered by reference to the law of California.12 It is fair to infer that if the immunity defense Nevada asserts today had been raised in 1812 when The Schooner Exchange was decided, or earlier when the Constitution was being framed, the defense would have been sustained by the California courts.13 By rejecting the defense in this very case, however, the California courts have told us that whatever California law may have been in the past, it no longer extends immunity to Nevada as a matter of comity. 19 Nevada quite rightly does not ask us to review the California courts' interpretation of California law. Rather, it argues that California is not free, as a sovereign, to apply its own law, but is bound instead by a federal rule of law implicit in the Constitution that requires all of the States to adhere to the sovereign-immunity doctrine as it prevailed when the Constitution was adopted. Unless such a federal rule exists, we of course have no power to disturb the judgment of the California courts. II 20 Unquestionably the doctrine of sovereign immunity was a matter of importance in the early days of independence.14 Many of the States were heavily indebted as a result of the Revolutionary War. They were vitally interested in the question whether the creation of a new federal sovereign, with courts of its own, would automatically subject them, like lower English lords, to suits in the courts of the "higher" sovereign. 21 But the question whether one State might be subject to suit in the courts of another State was apparently not a matter of concern when the new Constitution was being drafted and ratified. Regardless of whether the Framers were correct in assuming, as presumably they did, that prevailing notions of comity would provide adequate protection against the unlikely prospect of an attempt by the courts of one State to assert jurisdiction over another, the need for constitutional protection against that contingency was not discussed. 22 The debate about the suability of the States focused on the scope of the judicial power of the United States authorized by Art. III.15 In The Federalist, Hamilton took the position that this authorization did not extend to suits brought by an individual against a nonconsenting State.16 The contrary position was also advocated17 and actually prevailed in this Court's decision in Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440. 23 The Chisholm decision led to the prompt adoption of the Eleventh Amendment.18 That Amendment places explicit limits on the powers of federal courts to entertain suits against a State.19 24 The language used by the Court in cases construing these limits, like the language used during the debates on ratification of the Constitution, emphasized the widespread acceptance of the view that a sovereign State is never amenable to suit without its consent.20 But all of these cases, and all of the relevant debate, concerned questions of federal-court jurisdiction and the extent to which the States, by ratifying the Constitution and creating federal courts, had authorized suits aagainst themselves in those courts. These decisions do not answer the question whether the Constitution places any limit on the exercise of one's State's power to authorize its courts to assert jurisdiction over another State. Nor does anything in Art. III authorizing the judicial power of the United States, or in the Eleventh Amendment limitation on that power, provide any basis, explicit or implicit, for this Court to impose limits on the powers of California exercised in this case. A mandate for federal-court enforcement of interstate comity must find its basis elsewhere in the Constitution. III 25 Nevada claims that the Full Faith and Credit Clause of the Constitution requires California to respect the limitations on Nevada's statutory waiver of its immunity from suit. That waiver only gives Nevada's consent to suits in its own courts. Moreover, even if the waiver is treated as a consent to be sued in California, California must honor the condition attached to that consent and limit respondents' recovery to $25,000, the maximum allowable in an action in Nevada's courts. 26 The Full Faith and Credit Clause does require each State to give effect to official acts of other States. A judgment entered in one State must be respected in another provided that the first State had jurisdiction over the parties and the subject matter. Moreover, in certain limited situations, the courts of one State must apply the statutory law of another State. Thus in Bradford Electric Co. v. Clapper, 286 U.S. 145, 52 S.Ct. 571, 76 L.Ed. 1026, the Court held that a federal court sitting in New Hampshire was required by the Constitution to apply Vermont law in an action between a Vermont employee and a Vermont employer arising out of a contract made in Vermont.21 But this Court's decision in Pacific Insurance Co. v. Industrial Accident Comm'n, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940, clearly establishes that the Full Faith and Credit Clause does not require a State to apply another State's law in violation of its own legitimate public policy.22 27 The question in Pacific Insurance was whether the Full Faith and Credit Clause precluded California from applying its own workmen's compensation Act in the case of an injury suffered by a Massachusetts employee of a Massachusetts employer while in California in the course of his employment. Even though the employer and employee had agreed to be bound by Massachusetts law, this Court held that California was not precluded from applying its own law imposing greater responsibilities on the employer. In doing so, the Court reasoned: 28 "It has often been recognized by this Court that there are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy. . . . And in the case of statutes, the extrastate effect of which Congress has not prescribed, as it may under the constitutional provision, we think the conclusion is unavoidable that the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events. . . . Although Massachusetts has an interest in safeguarding the compensation of Massachusetts employees while temporarily abroad in the course of their employment, and may adopt that policy for itself, that could hardly be thought to support an application of the full faith and credit clause which would override the constitutional authority of another state to legislate for the bodily safety and economic protection of employees injured within it. Few matters could be deemed more appropriately the concern of the state in which the injury occurs or more completely within its power." Id., at 502-503, 59 S.Ct., at 633. 29 The Clapper case was distinguished on the ground that "there was nothing in the New Hampshire statute, the decisions of its courts, or in the circumstances of the case, to suggest that reliance on the provisions of the Vermont statute, as a defense to the New Hampshire suit, was obnoxious to the policy of New Hampshire." 306 U.S., at 504, 59 S.Ct., at 634.23 In Pacific Insurance, on the other hand, California had its own scheme governing compensation for injuries in the State, and the California courts had found that the policy of that scheme would be frustrated were it denied enforcement. "Full faith and credit," this Court concluded, "does not here enable one state to legislate for the other or to project its laws across state lines so as to preclude the other from prescribing for itself the legal consequences of acts within it." Id., at 504-505, 59 S.Ct., at 634. 30 A similar conclusion is appropriate in this case. The interest of California afforded such respect in the Pacific Insurance case was in providing for "the bodily safety and economic protection of employees injured within it." Id., at 503, 59 S.Ct., at 633. In this case, California's interest is the closely related and equally substantial one of providing "full protection to those who are injured on its highways through the negligence of both residents and nonresidents." App. to Pet. for Cert. vii. To effectuate this interest, California has provided by statute for jurisdiction in its courts over residents and nonresidents alike to allow those injured on its highways through the negligence of others to secure full compensation for their injuries in the California courts. 31 In further implementation of that policy, California has unequivocally waived its own immunity from liability for the torts committed by its own agents and authorized full recovery even against the sovereign. As the California courts have found, to require California either to surrender jurisdiction or to limit respondents' recovery to the $25,000 maximum of the Nevada statute would be obnoxious to its statutorily based policies of jurisdiction over nonresident motorists and full recovery. The Full Faith and Credit Clause does not require this result.24 IV 32 Even apart from the Full Faith and Credit Clause, Nevada argues that the Constitution implicitly establishes a Union in which the States are not free to treat each other as unfriendly sovereigns, but must respect the sovereignty of one another. While sovereign nations are free to levy discriminatory taxes on the goods of other nations or to bar their entry altogether, the States of the Union are not.25 Nor are the States free to deny extradition of a fugitive when a proper demand is made by the executive of another State.26 And the citizens in each State are entitled to all privileges and immunities of citizens in the several States.27 33 Each of these provisions places a specific limitation on the sovereignty of the several States. Collectively they demonstrate that ours is not a union of 50 wholly independent sovereigns. But these provisions do not imply that any one State's immunity from suit in the courts of another State is anything other than a matter of comity. Indeed, in view of the Tenth Amendment's reminder that powers not delegated to the Federal Government nor prohibited to the States are reserved to the States or to the people,28 the existence of express limitations on state sovereignty may equally imply that caution should be exercised before concluding that unstated limitations on state power were intended by the Framers. 34 In the past, this Court has presumed that the States intended to adopt policies of broad comity toward one another. But this presumption reflected an understanding of state policy, rather than a constitutional command. As this Court stated in Bank of Augusta v. Earle, 13 Pet. 519, 590, 10 L.Ed. 274: 35 "The intimate union of these states, as members of the same great political family; the deep and vital interests which bind them so closely together; should lead us, in the absence of proof to the contrary, to presume a greater degree of comity, and friendship, and kindness towards one another, than we should be authorized to presume between foreign nations. And when (as without doubt must occasionally happen) the interest or policy of any state requires it to restrict the rule, it has but to declare its will, and the legal presumption is at once at an end." 36 In this case, California has "declared its will"; it has adopted as its policy full compensation in its courts for injuries on its highways resulting from the negligence of others, whether those others be residents or nonresidents, agents of the State, or private citizens. Nothing in the Federal Constitution authorizes or obligates this Court to frustrate that policy out of enforced respect for the sovereignty of Nevada.29 37 In this Nation each sovereign governs only with the consent of the governed. The people of Nevada have consented to a system in which their State is subject only to limited liability in tort. But the people of California, who have had no voice in Nevada's decision, have adopted a different system. Each of these decisions is equally entitled to our respect. 38 It may be wise policy, as a matter of harmonious interstate relations, for States to accord each other immunity or to respect any established limits on liability. They are free to do so. But if a federal court were to hold, by inference from the structure of our Constitution and nothing else, that California is not free in this case to enforce its policy of full compensation, that holding would constitute the real intrusion on the sovereignty of the States—and the power of the people in our Union. 39 The judgment of the California Court of Appeal is 40 Affirmed. 41 Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting. 42 The Court, in a plausible opinion, holds that the State of Nevada is subject to an unconsented suit in a California state court for damages in tort. This result at first glance does not seem too unreasonable. One might well ask why Nevada, even though it is a State, and even though it has not given its consent, should not be responsible for the wrong its servant perpetrated on a California highway. And one might also inquire how it is that, if no provision of our national Constitution specifically prevents the nonimmunity result, these tort action plaintiffs could be denied their judgment. 43 But the Court paints with a very broad brush, and I am troubled by the implications of its holding. Despite a fragile footnote disclaimer, ante, at 424 n. 24, the Court's basic and undeniable ruling is that what we have always thought of as a "sovereign State" is now to be treated in the courts of a sister State, once jurisdiction is obtained, just as any other litigant. I fear the ultimate consequences of that holding, and I suspect that the Court has opened the door to avenues of liability and interstate retaliation that will prove unsettling and upsetting for our federal system. Accordingly, I dissent. 44 It is important to note that at the time of the Constitutional Convention, as the Court concedes, there was "widespread acceptance of the view that a sovereign State is never amenable to suit without its consent." Ante, at 420. The Court also acknowledges that "the notion that immunity from suit is an attribute of sovereignty is reflected in our cases." Ante, at 415. Despite these concessions, the Court holds that the sovereign-immunity doctrine is a mere matter of "comity" which a State is free to reject whenever its "policy" so dictates. Ante, at 426. 45 There is no limit to the breadth of the Court's rationale, which goes beyond the approach taken by the California Court of Appeal in this case. That court theorized that Nevada was not "sovereign" for purposes of this case because sovereignty ended at the California-Nevada line: " 'When the sister state enters into activities in this state, it is not exercising sovereign power over the citizens of this state and is not entitled to the benefits of the sovereign immunity doctrine as to those activities unless this state has conferred immunity by law or as a matter of comity.' " Hall v. University of Nevada, 74 Cal.App.3d 280, 284, 141 Cal.Rptr. 439, 441 (1977), quoting Hall v. University of Nevada, 8 Cal.3d 522, 524, 105 Cal.Rptr. 355, 356, 503 P.2d 1363, 1364 (1972), cert. denied, 414 U.S. 820, 94 S.Ct. 114, 38 L.Ed.2d 52 (1973). The California court, in other words, recognized that sovereign States are immune from unconsented suit; it held only that this rule failed in its application on the facts because Nevada was not a "sovereign" when its agent entered California and committed a tort there. Indeed, the court said flatly that " 'state sovereignty ends at the state boundary,' " 74 Cal.App.3d, at 284, 141 Cal.Rptr., at 441, again quoting Hall, 8 Cal.3d, at 525, 105 Cal.Rptr., at 357, 503 P.2d, at 1365. 46 That reasoning finds no place in this Court's opinion. Rather, the Court assumes that Nevada is "sovereign," but then concludes that the sovereign-immunity doctrine has no constitutional source. Thus, it says, California can abolish the doctrine at will. By this reasoning, Nevada's amenability to suit in California is not conditioned on its agent's having committed a tortious act in California. Since the Court finds no constitutional source for the sovereign-immunity doctrine, California, so far as the Federal Constitution is concerned, is able and free to treat Nevada, and any other State, just as it would treat any other litigant. The Court's theory means that State A constitutionally can be sued by an individual in the courts of State B on any cause of action, provided only that the plaintiff in State B obtains jurisdiction over State A consistently with the Due Process Clause. 47 The Court, by its footnote 24, ante, at 424, purports to confine its holding to traffic-accident torts committed outside the defendant State, and perhaps even to traffic "policies." Such facts, however, play absolutely no part in the reasoning by which the Court reaches its conclusion. The Court says merely that "California has 'declared its will'; it had adopted as its policy full compensation in its courts for injuries on its highways . . .. Nothing in the Federal Constitution authorizes or obligates this Court to frustrate that policy." Ante, at 426. There is no suggestion in this language that, if California had adopted some other policy in some other area of the law, the result would be any different. If, indeed, there is "[n]othing in the Federal Constitution" that allows frustration of California's policy, it is hard to see just how the Court could use a different analysis or reach a different result in a different case. 48 The Court's expansive logic and broad holding—that so far as the Constitution is concerned, State A can be sued in State B on the same terms any other litigant can be sued—will place severe strains on our system of cooperative federalism. States in all likelihood will retaliate against one another for respectively abolishing the "sovereign immunity" doctrine. States' legal officers will be required to defend suits in all other States. States probably will decide to modify their tax-collection and revenue systems in order to avoid the collection of judgments. In this very case, for example, Nevada evidently maintains cash balances in California banks to facilitate the collection of sales taxes from California corporations doing business in Nevada. Pet. for Cert. 5. Under the Court's decision, Nevada will have strong incentive to withdraw those balances and place them in Nevada banks so as to insulate itself from California judgments. If respondents were forced to seek satisfaction of their judgment in Nevada, that State, of course, might endeavor to refuse to enforce that judgment, or enforce it only on Nevada's terms. The Court's decision, thus, may force radical changes in the way States do business with one another, and it imposes, as well, financial and administrative burdens on the States themselves. 49 I must agree with the Court that if the judgment of the California Court of Appeal is to be reversed, a constitutional source for Nevada's sovereign immunity must be found. I would find that source not in an express provision of the Constitution but in a guarantee that is implied as an essential component of federalism. The Court has had no difficulty in implying the guarantee of freedom of association in the First Amendment, NAACP v. Button, 371 U.S. 415, 430-431, 83 S.Ct. 328, 336-337, 9 L.Ed.2d 405 (1963); Kusper v. Pontikes, 414 U.S. 51, 56-57, 94 S.Ct. 303, 307-308, 38 L.Ed.2d 260 (1973), and it has had no difficulty in implying a right of interstate travel, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). In the latter case, the Court observed, id., at 757, 86 S.Ct., at 1178: "The constitutional right to travel from one State to another . . . occupies a position fundamental to the concept of our Federal Union." And although the right of interstate travel "finds no explicit mention in the Constitution," the reason, "it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created." Id., at 758, 86 S.Ct., at 1178. Accordingly, the Court acknowledged the existence of this constitutional right without finding it necessary "to ascribe the source of this right . . . to a particular constitutional provision." Shapiro v. Thompson, 394 U.S., at 630, 89 S.Ct., at 1329. 50 I have no difficulty in accepting the same argument for the existence of a constitutional doctrine of interstate sovereign immunity. The Court's acknowledgment, referred to above, that the Framers must have assumed that States were immune from suit in the courts of their sister States lends substantial support. The only reason why this immunity did not receive specific mention is that it was too obvious to deserve mention. The prompt passage of the Eleventh Amendment nullifying the decision in Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793), is surely significant. If the Framers were indeed concerned lest the States be haled before the federal courts—as the courts of a " 'higher' sovereign," ante, at 418—how much more must they have reprehended the notion of a State's being haled before the courts of a sister State. The concept of sovereign immunity prevailed at the time of the Constitutional Convention. It is, for me, sufficiently fundamental to our federal structure to have implicit constitutional dimension. Indeed, if the Court means what it implies in its footnote 24—that some state policies might require a different result—it must be suggesting that there are some federalism constraints on a State's amenability to suit in the courts of another State. If that is so, the only question is whether the facts of this case are sufficient to call the implicit constitutional right of sovereign immunity into play here. I would answer that question in the affirmative. 51 Finally, it strikes me as somewhat curious that the Court relegates to a passing footnote reference what apparently is the only other appellate litigation in which the precise question presented here was considered and, indeed, in which the Court's result was rejected. Paulus v. South Dakota, 52 N.D. 84, 201 N.W. 867 (1924); Paulus v. South Dakota, 58 N.D. 643, 227 N.W. 52 (1929). The plaintiff there was injured in a coal mine operated in North Dakota by the State of South Dakota. He sued South Dakota in a North Dakota state court. The Supreme Court of North Dakota rejected the plaintiff's contention that South Dakota "discards its sovereignty when it crosses the boundary line." 52 N.D., at 92, 201 N.W., at 870. It held that South Dakota was immune from suit in the North Dakota courts; "Therefore, in the absence of allegations as to the law of the sister state showing a consent to be sued, the courts of this state must necessarily regard a sovereign sister state as immune to the same extent that this state would be immune in the absence of a consenting statute." 58 N.D., at 647, 227 N.W., at 54. The court noted that under the Eleventh Amendment no State could be sued in federal court by a citizen of another State. "Much less," the court reasoned, "would it be consistent with any sound conception of sovereignty that a state might be haled into the courts of a sister sovereign state at the will or behest of citizens or residents of the latter." Id., at 649, 227 N.W., at 55. The Supreme Court of California purported to distinguish Paulus (citing only the first opinion in that litigation) on the ground that "the plaintiff was a citizen of South Dakota." Hall v. University of Nevada, 8 Cal.3d, at 525, 105 Cal.Rptr., at 357, 503 P.2d, at 1365. That court, however, made no reference to the Supreme Court of North Dakota's second opinion and thus passed over the fact that the plaintiff had amended his complaint to allege that he was a resident of North Dakota. The North Dakota Supreme Court then held that that fact "in nowise alter[ed]" its view of the immunity issue. 58 N.D., at 648, 227 N.W., at 54. Thus, the only authority that has been cited to us or that we have found is directly opposed to the Court's conclusion. 52 I would reverse the judgment of the California Court of Appeal, and remit the plaintiffs-respondents to those remedies prescribed by the statutes of Nevada. 53 Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting. 54 Like my Brother BLACKMUN, I cannot agree with the majority that there is no constitutional source for the sovereign immunity asserted in this case by the State of Nevada. I think the Court's decision today works a fundamental readjustment of interstate relationships which is impossible to reconcile not only with an "assumption" this and other courts have entertained for almost 200 years, but also with express holdings of this Court and the logic of the constitutional plan itself. 55 Any document—particularly a constitution—is built on certain postulates or assumptions; it draws on shared experience and common understanding. On a certain level, that observation is obvious. Concepts such as "State" and "Bill of Attainder" are not defined in the Constitution and demand external referents. But on a more subtle plane, when the Constitution is ambiguous or silent on a particular issue, this Court has often relied on notions of a constitutional plan—the implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and to give each provision within that document the full effect intended by the Framers. The tacit postulates yielded by that ordering are as much engrained in the fabric of the document as its express provisions, because without them the Constitution is denied force and often meaning.1 Thus in McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819). Mr. Chief Justice Marshall, writing for the Court, invalidated a state tax on a federal instrumentality even though no express provision for intergovernmental tax immunity can be found in the Constitution. He relied on the notion that the power to tax is the power to destroy, and that to concede the States such a power would place at their mercy the Constitution's affirmative grants of authority to the Federal Government—a result the Framers could not have intended. More recently this Court invalidated a federal minimum wage for state employees on the ground that it threatened the States' " 'ability to function effectively in a federal system.' " National League of Cities v. Usery, 426 U.S. 833, 852, 96 S.Ct. 2465, 2474, 49 L.Ed.2d 245 (1976), quoting Fry v. United States, 421 U.S. 542, 547, 95 S.Ct. 1792, 1795, 44 L.Ed.2d 363, n. 7 (1975). The Court's literalism, therefore, cannot be dispositive here, and we must examine further the understanding of the Framers and the consequent doctrinal evolution of concepts of state sovereignty. 56 Article III, like virtually every other Article of the Constitution, was inspired by the experience under the Articles of Confederation. To speak of the "judicial Power" of the United States under the Articles of Confederation is to invite charges of pretense, for there was very little latitude for federal resolution of disputes. The Confederation Congress could create prize courts and courts for the adjudication of "high seas" crimes. It could set up ad hoc and essentially powerless tribunals to consider controversies between States and between individuals who claimed lands under the grants of different States.2 But with respect to all other disputes of interstate or international significance, the litigants were left to the state courts and to the provincialism that proved the bane of this country's earliest attempt at political organization. 57 One obvious attribute of Art. III in light of the Confederation experience was the potential for a system of neutral forums for the settlement of disputes between States and citizens of different States. The theme recurs throughout the ratification debates. For example, during the debates in North Carolina, William Davie, a member of the Constitutional Convention, observed: 58 "It has been equally ceded, by the strongest opposers to this government, that the federal courts should have cognizance of controversies between two or more states, between a state and the citizens of another state, and between the citizens of the same state claiming lands under the grant of different states. Its jurisdiction in these cases is necessary to secure impartiality in decisions, and preserve tranquility among the states. It is impossible that there should be impartiality when a party affected is to be judge. 59 "The security of impartiality is the principal reason for giving up the ultimate decision of controversies between citizens of different states." 4 J. Elliot, Debates on the Federal Constitution 159 (1876) (hereinafter Elliot's Debates). 60 As the Court observes, the matter of sovereign immunity was indeed a subject of great importance in the early days of the Republic. In fact, it received considerable attention in the years immediately preceding the Constitutional Convention. In 1781 a citizen of Pennsylvania brought suit in the Pennsylvania courts in an effort to attach property belonging to Virginia that was located in Philadelphia Harbor. The case raised such concerns throughout the States that the Virginia delegation to the Confederation Congress sought the suppression of the attachment order. The Pennsylvania Court of Common Pleas ultimately held that by virtue of its sovereign immunity, Virginia was immune from the processes of Pennsylvania. Nathan v. Virginia, 1 Dall. 77, 1 L.Ed. 44 (1781). 61 That experience undoubtedly left an impression—particularly on Virginians—and throughout the debates on the Constitution fears were expressed that extending the judicial power of the United States to controversies "between a state and citizens of another state" would abrogate the States' sovereign immunity. James Madison and John Marshall repeatedly assured opponents of the Constitution, such as Patrick Henry, that the sovereign immunity of the States was secure.3 Alexander Hamilton as Publius wrote: 62 "It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal." The Federalist No. 81, p. 508 (H. Lodge ed. 1908). (Emphasis in original). 63 In Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793), this Court disagreed with the Madison-Marshall-Hamilton triumvirate, and its judgment was in turn overruled by the Eleventh Amendment.4 By its terms that Amendment only deprives federal courts of jurisdiction where a State is haled into court by citizens of another State or of a foreign country. Yet it is equally clear that the States that ratified the Eleventh Amendment thought that they were putting an end to the possibility of individual States as unconsenting defendants in foreign jurisdictions, for, as Mr. Justice Blackmun notes, they would have otherwise perversely foreclosed the neutral federal forums only to be left to defend suits in the courts of other States. The Eleventh Amendment is thus built on the postulate that States are not, absent their consent, amenable to suit in the courts of sister States. 64 This I think explains why this Court on a number of occasions has indicated that unconsenting States are not subject to the jurisdiction of the courts of other States. In Beers v. Arkansas, 20 How. 527, 529, 15 L.Ed. 991 (1858), Mr. Chief Justice Taney observed in an opinion for the Court that it "is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission." Some 25 years later Mr. Justice Miller, again for the Court, was even more explicit: 65 "It may be accepted as a point of departure unquestioned, that neither a State nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a state may be made a party in the supreme court of the United States by virtue of the original jurisdiction conferred on this court by the Constitution. 66 "This principle is conceded in all the cases, and whenever it can be clearly seen that the State is an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction." Cunningham v. Macon & Brunswick R. Co., 109 U.S. 446, 451, 3 S.Ct. 292, 296, 27 L.Ed. 992 (1883). 67 The most recent statement by this Court on the topic appears to be that authored by Mr. Justice Black in Western Union Telegraph Co. v. Pennsylvania, 368 U.S. 71, 82 S.Ct. 199, 7 L.Ed.2d 139 (1961), which held that Western Union's due process rights would be violated if Pennsylvania escheated Western Union's unclaimed money orders. The Court found that conclusion compelled by Pennsylvania's inability to provide Western Union with a forum where all claims, including those of other States, could be resolved. The Court noted that "[i]t is plain that Pennsylvania courts, with no power to bring other States before them, cannot give such hearings." Id., at 80, 82 S.Ct., at 204. 68 When the State's constitutional right to sovereign immunity has been described, it has been in expansive terms. In Great Northern Insurance Co. v. Read, 322 U.S. 47, 51, 64 S.Ct. 873, 875, 88 L.Ed. 1121 (1944), the Court stated: 69 "Efforts to force, through suits against officials, performance of promises by a state collide directly with the necessity that a sovereign must be free from judicial compulsion in the carrying out of its policies within the limits of the Constitution. . . . A state's freedom from litigation was established as a constitutional right through the Eleventh Amendment." (Emphasis added.) 70 Although Mr. Justice Frankfurter disagreed with the Great Northern Insurance Co. majority on the issue of consent, he was in complete agreement on the broad nature of the right. 71 "The Eleventh Amendment has put state immunity from suit into the Constitution. Therefore, it is not in the power of individuals to bring any State into court—the State's or that of the United States—except with its consent." Id., at 59, 64 S.Ct., at 879 (dissenting opinion). 72 Presumably the Court today dismisses all of this as dicta. Yet these statements—far better than the Court's literalism comport with the general approach to sovereign-immunity questions evinced in this Court's prior cases. Those cases have consistently recognized that Art. III and the Eleventh Amendment are built on important concepts of sovereignty that do not find expression in the literal terms of those provisions, but which are of constitutional dimension because their derogation would undermine the logic of the constitutional scheme. In Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), the Eleventh Amendment was found to bar federal-court suits against a State brought by its own citizens, despite the lack of any reference to such suits in the Amendment itself. The Court found this limit on the judicial power in the "established order of things"—an order that eschewed the "anomalous result, that, in cases arising under the constitution or laws of the United States, a state may be sued in the federal courts by its own citizens, though it cannot be sued for a like cause of action by the citizens of other states, or of a foreign state; and may be thus sued in the federal courts, although not allowing itself to be sued in its own courts." Id., at 10, 14, 10 S.Ct., at 505. The anomaly lay in the availability of the neutral forum in cases where there was some political check on parochialism—suits against a State by its own citizens—and its unavailability in situations where concerns of a biased tribunal were most acute—suits against a State by citizens of another State. The Hans Court, speaking through Mr. Justice Bradley, concluded: 73 "It is not necessary that we should enter upon an examination of the reason or expediency of the rule which exempts a sovereign State from prosecution in a court of justice at the suit of individuals. . . . It is enough for us to declare its existence. The legislative department of a state represents its polity and its will; and is called upon by the highest demands of natural and political law to preserve justice and judgment, and to hold inviolate the public obligations. Any departure from this rule, except for reasons most cogent, (of which the legislature, and not the courts, is the judge,) never fails in the end to incur the odium of the world, and to bring lasting injury upon the State itself. But to deprive the legislature of the power of judging what the honor and safety of the state may require, even at the expense of a temporary failure to discharge the public debts, would be attended with greater evils than such failure can cause." Id., at 21, 10 S.Ct., at 509. 74 Similarly, in Monaco v. Mississippi, 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed. 1282 (1934), this Court relied on precepts underlying but not explicit in Art. III and the Eleventh Amendment to conclude that this Court was without jurisdiction to entertain a suit brought by the Principality of Monaco against the State of Mississippi for payment on bonds issued by the State. On its face, Art. III would suggest that such a suit could be entertained, and such actions are not addressed by the terms of the Eleventh Amendment. But Mr. Chief Justice Hughes in Monaco did not so limit his analysis, and held that the Court could not entertain the suit without Mississippi's consent. 75 "Manifestly, we cannot rest with a mere literal application of the words of § 2 of article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. There is the essential postulate that the controversies, as contemplated, shall be found to be of a justiciable character. There is also the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been 'a surrender of this immunity in the plan of the convention.' The Federalist No. 81. The question is whether the plan of the Constitution involves the surrender of immunity when the suit is brought against a State, without her consent, by a foreign State." Id., at 322-323, 54 S.Ct., at 748 (emphasis added).5 76 Likewise, I think here the Court should have been sensitive to the constitutional plan and avoided a result that destroys the logic of the Framers' careful allocation of responsibility among the state and federal judiciaries, and makes nonsense of the effort embodied in the Eleventh Amendment to preserve the doctrine of sovereign immunity. Mr. Justice Blackmun's references to the "right to travel" cases is most telling. In the first such case, Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 744 (1868), the Court invalidated a Nevada head tax on exit from the State, relying in large part on McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819). The essential logic of the opinion is that to admit such power would be to concede to the States the ability to frustrate the exercise of authority delegated to the Federal Government—for example, the power to transport armies and to maintain postal services. There is also the theme that the power to obstruct totally the movements of people is incompatible with the concept of one Nation. The Court admitted that "no express provision of the Constitution" addressed the problem, 6 Wall., at 48, 18 L.Ed. 744; but it concluded that the constitutional framework demanded that the tax be proscribed lest it sap the logic and vitality of the express provisions.6 77 The incompatibility of the majority's position in this case with the constitutional plan is even more apparent than that in Crandall. I would venture to say that it is much more apparent than the incompatibility of the one-year residency requirement imposed on Thompson as a precondition to receipt of AFDC benefits.7 Despite the historical justification of federal courts as neutral forums, now suits against unconsenting States by citizens of different States can only be brought in the courts of other States. That result is achieved because in the effort to "protect" the sovereignty of individual States, state legislators had the lack of foresight to ratify the Eleventh Amendment. The State cannot even remove the action to federal court, because it is not a citizen for purposes of diversity jurisdiction. Moor v. County of Alameda, 411 U.S. 693, 717, 93 S.Ct. 1785, 1799, 36 L.Ed.2d 596 (1973); Postal Telegraph Cable Co. v. Alabama, 155 U.S. 482, 487, 15 S.Ct. 192, 194, 39 L.Ed. 231 (1894). Ironically, and I think wrongly, the Court transforms what it described as a constitutional right in Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662 (1974), and Great Northern Insurance Co. v. Read, into an albatross. 78 I join my Brother BLACKMUN's doubts about footnote 24 of the majority opinion. Where will the Court find its principles of "cooperative federalism"? Despite the historical justification of federal courts as neutral forums, despite an understanding shared by the Framers and, for close to 200 years, expounded by some of the most respected Members of this Court, and despite the fact that it is the operative postulate that makes sense of the Eleventh Amendment, the Court concludes that the rule that an unconsenting State is not subject to the jurisdiction of the courts of a different State finds no support "explicit or implicit" in the Constitution. Ante, at 421. If this clear guidance is not enough, I do not see how the Court's suggestion that limits on state-court jurisdiction may be found in principles of "cooperative federalism" can be taken seriously. Yet given the ingenuity of our profession, pressure for such limits will inevitably increase. Having shunned the obvious, the Court is truly adrift on uncharted waters; the ultimate balance struck in the name of "cooperative federalism" can be only a series of unsatisfactory bailing operations in fact. 79 I am also concerned about the practical implications of this decision. The federal system as expressed in the Constitution with the exception of representation in the House—is built on notions of state parity. No system is truly federal otherwise. This decision cannot help but induce some "Balkanization" in state relationships as States try to isolate assets from foreign judgments and generally reduce their contacts with other jurisdictions. That will work to the detriment of smaller States like Nevada—who are more dependent on the facilities of a dominant neighbor—in this case, California. 80 The problem of enforcement of a judgment against a State creates a host of additional difficulties. Assuming Nevada has no seizable assets in California, can the plaintiff obtain enforcement of California's judgment in Nevada courts? Can Nevada refuse to give the California judgment "full faith and credit" because it is against state policy? Can Nevada challenge the seizure of its assets by California in this Court? If not, are the States relegated to the choice between the gamesmanship and tests of strength that characterize international disputes, on the one hand, and the midnight seizure of assets associated with private debt collection on the other? 81 I think the Framers and our predecessors on this Court expressed the appropriate limits on the doctrine of state sovereign immunity. Since the California judgment under review transgresses those limits, I respectfully dissent. 1 Section 17451 of the Code provides: "The acceptance by a nonresident of the rights and privileges conferred upon him by this code or any operation by himself or agent of a motor vehicle anywhere within this state, or in the event the nonresident is the owner of a motor vehicle then by the operation of the vehicle anywhere within this state by any person with his express or implied permission, is equivalent to an appointment by the nonresident of the director or his successor in office to be his true and lawful attorney upon whom may be served all lawful processes in any action or proceeding against the nonresident operator or nonresident owner growing out of any accident or collision resulting from the operation of any motor vehicle anywhere within this state by himself or agent, which appointment shall also be irrevocable and binding upon his executor or administrator." Cal.Veh.Code Ann. § 17451 (West 1971). An administrator of the decedent's estate was appointed in California and was served personally. 2 Nev.Rev.Stat. § 41.035(1) as it existed in 1968, found in official edition, 1965 Nev.Stats., p. 1414 (later amended by 1968 Nev.Stats., p. 44, 1973 Nev.Stats., p. 1532, and 1977 Nev.Stats., pp. 985, 1539): "No award for damages in an action sounding in tort brought under section 2 may exceed the sum of $25,000 to or for the benefit of any claimant. No such award may include any amount as exemplary or punitive damages or as interest prior to judgment." Nev.Rev.Stat. § 41.031 (1977): "1. The State of Nevada hereby waives its immunity from liability and action and hereby consents to have its liability determined in accordance with the same rules of law as are applied to civil actions against natural persons and corporations, except as otherwise provided in NRS 41.032 to 41.038, inclusive, and subsection 3 of this section if the claimant complies with the limitations of NRS 41.032 to 41.036, inclusive, or the limitations of the NRS 41.010. The State of Nevada further waives the immunity from liability and action of all political subdivisions of the state, and their liability shall be determined in the same manner, except as otherwise provided in NRS 41.032 to 41.038, inclusive, and subsection 3 of this section, if the claimant complies with the limitations of NRS 41.032 to 41.036, inclusive. "2. An action may be brought under this section, in a court of competent jurisdiction of this state, against the State of Nevada, any agency of the state, or any political subdivision of the state. In an action against the state or any agency of the state, the State of Nevada shall be named as defendant, and the summons and a copy of the complaint shall be served upon the secretary of state." 3 Article IV, § 1, provides: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may be general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." 4 The evidence indicated that respondent John Hall, a minor at the time of the accident, sustained severe head injuries resulting in permanent brain damage which left him severely retarded and unable to care for himself, and that respondent Patricia Hall, his mother, suffered severe physical and emotional injuries. 5 No one claims that any federal statute places any relevant restriction on California's jurisdiction or lends any support to Nevada's claim of immunity. If there is a federal rule that restricts California's exercise of jurisdiction in this case, that restriction must be a part of the United States Constitution. 6 See 1 F. Pollock & F. Maitland, History of English Law 518 (2d ed. 1899) ("He can not be compelled to answer in his own court, but this is true of every petty lord of every petty manor; that there happens to be in this world no court above his court is, we may say, an accident"); Engdahl, Immunity and Accountability for Positive Governmental Wrongs, 44 U.Colo.L.Rev. 1, 2-5 (1972). 7 See 1 W. Blackstone, Commentaries *246 ("The king, moreover, is not only incapable of doing wrong, but even thinking wrong; he can never mean to do an improper thing"). In fact, however, effective mechanisms developed early in England to redress injuries resulting from the wrongs of the King. See Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv.L.Rev. 1, 3-5 (1963). 8 The Declaration of Independence proclaims: "[T]hat whenever any form of government becomes destructive of these ends, it is the right of the People to alter or to abolish it, and to institute new government . . . and such is now the necessity which constrains them to alter their former systems of government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states." See generally B. Bailyn, The Ideological Origins of the American Revolution 198-229 (1967). 9 See Chisholm v. Georgia, 2 Dall. 419, 472, 1 L.Ed. 440. 10 See Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 527, 51 L.Ed. 834. 11 The opinion describes the exemption of the person of the sovereign from arrest or detention in a foreign territory, the immunity allowed to foreign ministers, and the passage of troops through a country with its permission. 7 Cranch, at 137-140, 3 L.Ed. 287. 12 Were it an independent sovereign, Nevada might choose to withdraw its money from California banks, or to readjust its own rules as to California's amenability to suit in the Nevada courts. And it might refuse to allow this judgment to be enforced in its courts. But it could not, absent California's consent and absent whatever protection is conferred by the United States Constitution, invoke any higher authority to enforce rules of interstate comity and to stop California from asserting jurisdiction. For to do so would be wholly at odds with the sovereignty of California. 13 Such a defense was sustained in 1929 by the Supreme Court of North Dakota in Paulus v. South Dakota, 58 N.D. 643, 647-649, 227 N.W. 52, 54-55. The States' practice of waiving sovereign immunity in their own courts is a relatively recent development; it was only last year, for example, that Pennsylvania concluded that the defense would no longer be recognized, at least in certain circumstances, in that State. See Mayle v. Pennsylvania Dept. of Highways, 479 Pa. 384, 388 A.2d 709 (1978); 1978 Pa. Laws, Act No. 1978-152 to be codified as 42 Pa.Cons.Stat. §§ 5101, 5110. But as States have begun to waive their rights to immunity in their own courts, it was only to be expected that the privilege of immunity afforded to other States as a matter of comity would be subject to question. Similarly, as concern for redress of individual injuries has enhanced, so too have moves toward the reappraisal of the practices of sovereign nations according absolute immunity to foreign sovereigns. The governing rule today, in many nations, is one of restrictive rather than absolute immunity. See 26 Dept. State Bull. 984 (1952); Note, The Jurisdictional Immunity of Foreign Sovereigns, 63 Yale L.J. 1148 (1954); Martiniak, Hall v. Nevada: State Court Jurisdiction Over Sister States v. American State Sovereign Immunity, 63 Calif.L.Rev. 1144, 1155-1157 (1975). 14 See generally C. Jacobs, The Eleventh Amendment and Sovereign Immunity 1-40 (1972). 15 Article III provides, in relevant part: "Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. . . . "Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." 16 The Federalist No. 81, p. 508 (H. Lodge ed. 1908) (A. Hamilton) ("It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent"); see 3 J. Elliot, Debates on the Federal Constitution 555 (1876) (John Marshall) ("I hope that no gentleman will think that a state will be called at the bar of the federal court. . . . The intent is, to enable states to recover claims of individuals residing in other states. I contend this construction is warranted by the words"). Id., at 533 (James Madison). 17 See 2 id., at 491 (James Wilson) ("When a citizen has a controversy with another state, there ought to be a tribunal where both parties may stand on a just and equal footing"); Jacobs, supra n. 14, at 40 ("[T]he legislative history of the Constitution hardly warrants the conclusion drawn by some that there was a general understanding, at the time of ratification, that the states would retain their sovereign immunity"). 18 See Hans v. Louisiana, 134 U.S. 1, 11, 10 S.Ct. 504, 505, 33 L.Ed. 842; Monaco v. Mississippi, 292 U.S. 313, 325, 54 S.Ct. 745, 749, 78 L.Ed. 1282. 19 The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Even as so limited, however, the Eleventh Amendment has not accorded the States absolute sovereign immunity in federal-court actions. The States are subject to suit by both their sister States and the United States. See, e. g., North Dakota v. Minnesota, 263 U.S. 365, 372, 44 S.Ct. 138, 139, 68 L.Ed. 342; United States v. Mississippi, 380 U.S. 128, 140-141, 85 S.Ct. 808, 814-815, 13 L.Ed.2d 717. Further, prospective injunctive and declaratory relief is available against States in suits in federal court in which state officials are the nominal defendants. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714; Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662. See generally Baker, Federalism and the Eleventh Amendment, 48 U.Colo.L.Rev. 139 (1977). 20 See, e. g., Hans v. Louisiana, supra, 134 U.S., at 18, 10 S.Ct., at 508 ("The state courts have no power to entertain suits by individuals against a state without its consent. Then how does the Circuit Court, having only concurrent jurisdiction, acquire any such power?"); Monaco v. Mississippi, supra, 292 U.S., at 322-323, 54 S.Ct., at 748 ("There is also the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been 'a surrender of this immunity in the plan of the convention' "). 21 Mr. Justice Stone concurred in the Clapper decision, expressing the view that the result was supported by the conflict-of-laws rule that a New Hampshire court could be expected to apply in this situation, and that it was unnecessary to rely on the Constitution to support the Court's judgment. He also made it clear that the rule of the case did not encompass an action in which the source of the relationship was not a Vermont contract between a Vermont employer and a Vermont employee. 286 U.S., at 163-165, 52 S.Ct., at 577-578. 22 See also Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044; Bonaparte v. Tax Court, 104 U.S. 592, 26 L.Ed. 845 (holding that a law exempting certain bonds of the enacting State from taxation did not apply extraterritorially by virtue of the Full Faith and Credit Clause). 23 Mr. Justice Stone who had concurred separately in Clapper, see n. 21, supra, wrote for the Court in Pacific Insurance. After distinguishing Clapper, he limited its holding to its facts: "The Clapper case cannot be said to have decided more than that a state statute applicable to employer and employee within the state, which by its terms provides compensation for the employee if he is injured in the course of his employment while temporarily in another state, will be given full faith and credit in the latter when not obnoxious to its policy." 306 U.S., at 504, 59 S.Ct., at 634. 24 California's exercise of jurisdiction in this case poses no substantial threat to our constitutional system of cooperative federalism. Suits involving traffic accidents occurring outside of Nevada could hardly interfere with Nevada's capacity to fulfill its own sovereign responsibilities. We have no occasion, in this case, to consider whether different state policies, either of California or of Nevada, might require a different analysis or a different result. 25 See U.S.Const., Art. I, § 8. 26 Art. IV, § 2. 27 Ibid. 28 The Tenth Amendment to the United States Constitution provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 29 Cf. Georgia v. Chattanooga, 264 U.S. 472, 480, 44 S.Ct. 369, 370, 68 L.Ed. 796 ("Land acquired by one State in another State is held subject to the laws of the latter and to all the incidents of private ownership. The proprietary right of the owning State does not restrict or modify the power of eminent domain of the State wherein the land is situated"). 1 Mr. Chief Justice Marshall captured this idea in McCulloch v. Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579 (1819): "A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves." This was the preface to the famous line: "In considering this question, then, we must never forget, that it is a constitution we are expounding." Ibid. (Emphasis in original.) 2 1 J. Goebel, History of the Supreme Court of the United States: Antecedents and Beginnings to 1801, pp. 143-195 (O. W. Holmes Devise History 1971); C. Jacobs, The Eleventh Amendment and Sovereign Immunity 9 (1972). 3 3 Elliot's Debates 533 (James Madison): "[Federal-court] jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court." Id., at 555-556 (John Marshall): "It is not rational to suppose that the sovereign power should be dragged before a court. The intent is, to enable states to recover claims of individuals residing in other states. I contend this construction is warranted by the words. But, say they, there will be partiality in it if a state cannot be defendant—if an individual cannot proceed to obtain judgment against a state, though he may be sued by a state. It is necessary to be so, and cannot be avoided." Although there were those other than opponents of the Constitution who suggested that Art. III was an abrogation of state sovereign immunity—Edmund Randolph and James Wilson being the most eminent—this Court has consistently taken the views of Madison, Marshall, and Hamilton as capturing the true intent of the Framers. See Edelman v. Jordan, 415 U.S. 651, 660-662, 94 S.Ct. 1347, 1354-1355, 39 L.Ed.2d 662, n. 9 (1974); Monaco v. Mississippi, 292 U.S. 313, 323-330, 54 S.Ct. 745, 748-751, 78 L.Ed. 1282 (1934); Hans v. Louisiana, 134 U.S. 1, 12-15, 10 S.Ct. 504, 506-507, 33 L.Ed. 842 (1890). 4 The adverse reaction to Chisholm was immediate, widespread, and vociferous. 1 Goebel, supra n. 2, at 734-741. 5 These cases do not exhaust the contexts in which this Court has invoked the constitutional plan to find a State was not amenable to an unconsented suit despite the absence of express protection in the Constitution. See, e. g., Ex parte New York, 256 U.S. 490, 41 S.Ct. 588, 65 L.Ed. 1057 (1921) (admiralty cases); Smith v. Reeves, 178 U.S. 436, 20 S.Ct. 919, 44 L.Ed. 1140 (1900) (suits by federal corporations). 6 The Court appealed to the logic and structure of the constitutional scheme because the case was decided before ratification of the Fourteenth Amendment, and therefore the Court could not avail itself of the flexible analytical "tools" provided by the Equal Protection Clause and the Due Process Clause. 7 Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

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440 U.S. 447 99 S.Ct. 1201 59 L.Ed.2d 445 The CHASE MANHATTAN BANK, N. A.v.The FINANCE ADMINISTRATION OF the CITY OF NEW YORK et al. No. 77-1659. March 5, 1979. [Syllabus intentionally omitted] PER CURIAM. 1 Petitioners are national banks that lease office space in New York City, where they maintain their principal places of business. After the city assessed them for its commercial rent and occupancy tax for the period June 1, 1970, through May 31, 1972, they brought the present action, arguing that their status as national banks rendered them immune from the tax. Petitioners relied on our cases that have held that national banks may not be taxed except as permitted by Congress. First Agricultural Bank v. State Tax Comm'n, 392 U.S. 339, 88 S.Ct. 2173, 20 L.Ed.2d 1138 (1968); McCulloch v. Maryland, 4 Wheat. 316, 436-437 (1819). The New York state courts upheld the assessments, finding the necessary congressional authorization in Pub.L. 91-156, 83 Stat. 434, as amended, 12 U.S.C. § 548 (1970 ed.). 2 Pub.L. 91-156, as amended by Pub.L. 92-213, § 4(a), 85 Stat. 775, provided that as of January 1, 1973, national banks were to be treated as state banks for the purposes of state tax laws. The Act also contained temporary provisions that enabled States to tax national banks on a more limited basis from its date of enactment, December 24, 1969, until January 1, 1973. Banks like petitioners with their principal offices in the taxing State, could be subjected to any nondiscriminatory tax generally applicable to state banks. A saving clause, however, prevented the imposition prior to January 1, 1973, of any tax in effect prior to the enactment of Pub.L. 91-156, unless such imposition was authorized by subsequent "affirmative action" of the state legislature. The saving-clause prohibition did not apply to "any tax on tangible personal property." 3 The New York Court of Appeals held that the disputed tax could be imposed on petitioners prior to January 1, 1973, because the affirmative-action requirement of the saving clause had been satisfied by an amendment of the commercial rent tax passed subsequent to Pub.L. 91-156 which increased the rate of the tax. 43 N.Y.2d 425, 401 N.Y.S.2d 1001, 372 N.E.2d 789. We disagree. Based on our study of the legislative history of Pub.L. 91-156, we are quite sure that the affirmative-action provision was designed to require the States, when imposing new taxes on national banks prior to January 1, 1973, to consider the impact of such taxes on the existing balance of taxation between national and state banks. On its face, a mere increase in the tax rate under an existing tax law does not indicate that such attention has been given; and nothing in the available legislative history of the rate amendment suggests that Pub.L. 91-156 was given the slightest attention. 4 The New York Court of Appeals also concluded that, under New York law, the commercial rent and occupancy tax was a tax on tangible personal property and hence not subject to the prohibitions of the saving clause. Whether the tax at issue is a tax on tangible personal property within the meaning of Pub.L. 91-156 is a question of federal law; and for the purposes of that statute, it appears to us that Congress did not consider real estate occupancy taxes to be taxes on tangible personal property. This is sufficiently clear from the provisions of the Act dealing with the interim taxation of banks having their principal offices outside the taxing State. Those provisions, in numbered paragraphs, list five kinds of taxes that were permissible. Paragraph (2) specified "[t]axes on real property or on the occupancy of real property located within such jurisdiction" (emphasis added), while paragraph (4) referred to "[t]axes on tangible personal property." It follows that the saving clause forbade collecting from banks like petitioners pre-existing real estate and occupancy taxes without affirmative legislative action, although it did not bar taxes on tangible personal property. 5 We accordingly conclude that the New York Court of Appeals was in error. The petition for certiorari is granted, and the judgments of the New York Court of Appeals are reversed. 6 It is so ordered.

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440 U.S. 367 99 S.Ct. 1158 59 L.Ed.2d 383 Aubrey SCOTT, Petitioner,v.State of ILLINOIS. No. 77-1177. Argued Dec. 4, 1978. Decided March 5, 1979. Syllabus Petitioner, an indigent, was convicted of shoplifting and was fined $50 after a bench trial in an Illinois state court. The applicable Illinois statute set the maximum penalty for such an offense at a $500 fine, one year in jail, or both. Petitioner's conviction was ultimately affirmed by the Illinois Supreme Court, over the petitioner's contention that a line of cases culminating in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, requires state provision of counsel whenever imprisonment is an authorized penalty. Held: The Sixth and Fourteenth Amendments require that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense, but do not require a state trial court to appoint counsel for a criminal defendant, such as petitioner, who is charged with a statutory offense for which imprisonment upon conviction is authorized but not imposed. Pp. 369-374. (a) Argersinger v. Hamlin, supra, limits the constitutional right to appointed counsel in state criminal proceedings to a case that actually leads to imprisonment. P. 373. (b) Even were the matter res nova, Argersinger's central premise—that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment—is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel. P. 373. 68 Ill.2d 269, 12 Ill.Dec. 174, 369 N.E.2d 881, affirmed. John S. Elson, Chicago, Ill. for petitioner. Gerri Papushkewych, Asst. Atty. Gen., Springfield, Ill., for respondent. Mr. Justice REHNQUIST delivered the opinion of the Court. 1 We granted certiorari in this case to resolve a conflict among state and lower federal courts regarding the proper application of our decision in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).1 436 U.S. 925, 98 S.Ct. 2817, 56 L.Ed.2d 767. Petitioner Scott was convicted of theft and fined $50 after a bench trial in the Circuit Court of Cook County, Ill. His conviction was affirmed by the state intermediate appellate court and then by the Supreme Court of Illinois, over Scott's contention that the Sixth and Fourteenth Amendments to the United States Constitution required that Illinois provide trial counsel to him at its expense. 2 Petitioner Scott was convicted of shoplifting merchandise valued at less than $150. The applicable Illinois statute set the maximum penalty for such an offense at a $500 fine or one year in jail, or both.2 The petitioner argues that a line of this Court's cases culminating in Argersinger v. Hamlin, supra, requires state provision of counsel whenever imprisonment is an authorized penalty. 3 The Supreme Court of Illinois rejected this contention, quoting the following language from Argersinger : 4 "We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." 407 U.S., at 37, 92 S.Ct., at 2012. 5 "Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts." Id., at 40, 92 S.Ct., at 2014. 6 The Supreme Court of Illinois went on to state that it was "not inclined to extend Argersinger " to the case where a defendant is charged with a statutory offense for which imprisonment upon conviction is authorized but not actually imposed upon the defendant. 68 Ill.2d 269, 272, 12 Ill.Dec. 174, 177, 369 N.E.2d 881, 882 (1977). We agree with the Supreme Court of Illinois that the Federal Constitution does not require a state trial court to appoint counsel for a criminal defendant such as petitioner, and we therefore affirm its judgment. 7 In his petition for certiorari, petitioner referred to the issue in this case as "the question left open in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)." Pet. for Cert. 5. Whether this question was indeed "left open" in Argersinger depends upon whether one considers that opinion to be a point in a moving line or a holding that the States are required to go only so far in furnishing counsel to indigent defendants. The Supreme Court of Illinois, in quoting the above language from Argersinger, clearly viewed the latter as Argersinger's holding. Additional support for this proposition may be derived from the concluding paragraph of the opinion in that case: 8 "The run of misdemeanors will not be affected by today's ruling. But in those that end up in the actual deprivation of a person's liberty, the accused will receive the benefit of 'the guiding hand of counsel' so necessary where one's liberty is in jeopardy." 407 U.S., at 40, 92 S.Ct., at 2014. 9 Petitioner, on the other hand, refers to language in the Court's opinion, responding to the opinion of Mr. Justice Powell, which states that the Court "need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved . . . for here petitioner was in fact sentenced to jail." Id., at 37, 92 S.Ct., at 2012. 10 There is considerable doubt that the Sixth Amendment itself, as originally drafted by the Framers of the Bill of Rights, contemplated any guarantee other than the right of an accused in a criminal prosecution in a federal court to employ a lawyer to assist in his defense. W. Beaney, The Right to Counsel in American Courts 27-30 (1955). In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Court held that Alabama was obligated to appoint counsel for the Scottsboro defendants, phrasing the inquiry as "whether the defendants were in substance denied the right of counsel, and if so, whether such denial infringes the due process clause of the Fourteenth Amendment." Id., at 52, 53 S.Ct., at 58. It concluded its opinion with the following language: 11 "The United States by statute and every state in the Union by express provision of law, or by the determination of its courts, make it the duty of the trial judge, where the accused is unable to employ counsel, to appoint counsel for him. In most states the rule applies broadly to all criminal prosecutions, in others it is limited to the more serious crimes, and in a very limited number, to capital cases. A rule adopted with such unanimous accord reflects, if it does not establish, the inherent right to have counsel appointed, at least in cases like the present, and lends convincing support to the conclusion we have reached as to the fundamental nature of that right." Id., at 73, 53 S.Ct., at 65. 12 Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), held that not every indigent defendant accused in a state criminal prosecution was entitled to appointment of counsel. A determination had to be made in each individual case whether failure to appoint counsel was a denial of fundamental fairness. Betts was in turn overruled in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In Gideon, Betts was described as holding "that a refusal to appoint counsel for an indigent defendant charged with a felony did not necessarily violate the Due Process Clause of the Fourteenth Amendment . . . ." Id., at 339, 83 S.Ct., at 793. 13 Several Terms later the Court held in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), that the right to jury trial in federal court guaranteed by the Sixth Amendment was applicable to the States by virtue of the Fourteenth Amendment. The Court held, however: "It is doubtless true that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision and should not be subject to the Fourteenth Amendment jury trial requirement here applied to the States. Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses . . . ." Id., at 159, 88 S.Ct., at 1453 (footnote omitted). In Baldwin v. New York, 399 U.S. 66, 69, 90 S.Ct. 1886, 1888, 26 L.Ed.2d 437 (1970), the controlling opinion of Mr. Justice White concluded that "no offense can be deemed 'petty' for purposes of the right to trial by jury where imprisonment for more than six months is authorized." 14 In Argersinger the State of Florida urged that a similar dichotomy be employed in the right-to-counsel area: Any offense punishable by less than six months in jail should not require appointment of counsel for an indigent defendant.3 The Argersinger Court rejected this analogy, however, observing that "the right to trial by jury has a different genealogy and is brigaded with a system of trial to a judge alone." 407 U.S., at 29, 92 S.Ct., at 2008. 15 The number of separate opinions in Gideon, Duncan, Baldwin, and Argersinger, suggests that constitutional line drawing becomes more difficult as the reach of the Constitution is extended further, and as efforts are made to transpose lines from one area of Sixth Amendment jurisprudence to another. The process of incorporation creates special difficulties, for the state and federal contexts are often different and application of the same principle may have ramifications distinct in degree and kind. The range of human conduct regulated by state criminal laws is much broader than that of the federal criminal laws, particularly on the "petty" offense part of the spectrum. As a matter of constitutional adjudication, we are, therefore, less willing to extrapolate an already extended line when, although the general nature of the principle sought to be applied is clear, its precise limits and their ramifications become less so. We have now in our decided cases departed from the literal meaning of the Sixth Amendment. And we cannot fall back on the common law as it existed prior to the enactment of that Amendment, since it perversely gave less in the way of right to counsel to accused felons than to those accused of misdemeanors. See Powell v. Alabama, supra, 287 U.S., at 60, 53 S.Ct., at 61. 16 In Argersinger the Court rejected arguments that social cost or a lack of available lawyers militated against its holding, in some part because it thought these arguments were factually incorrect. 407 U.S., at 37 n. 7, 92 S.Ct., at 2012. But they were rejected in much larger part because of the Court's conclusion that incarceration was so severe a sanction that it should not be imposed as a result of a criminal trial unless an indigent defendant had been offered appointed counsel to assist in his defense, regardless of the cost to the States implicit in such a rule. The Court in its opinion repeatedly referred to trials "where an accused is deprived of his liberty," id., at 32, 92 S.Ct., at 2010, and to "a case that actually leads to imprisonment even for a brief period," id., at 33, 92 S.Ct., at 2010. The Chief Justice in his opinion concurring in the result also observed that "any deprivation of liberty is a serious matter." Id., at 41, 92 S.Ct., at 2014. 17 Although the intentions of the Argersinger Court are not unmistakably clear from its opinion, we conclude today that Argersinger did indeed delimit the constitutional right to appointed counsel in state criminal proceedings.4 Even were the matter res nova, we believe that the central premise of Argersinger —that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment—is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel. Argersinger has proved reasonably workable, whereas any extension would create confusion and impose unpredictable, but necessarily substantial, costs on 50 quite diverse States.5 We therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense. The judgment of the Supreme Court of Illinois is accordingly 18 Affirmed. 19 Mr. Justice POWELL, concurring. 20 For the reasons stated in my opinion in Argersinger v. Hamlin, 407 U.S. 25, 44, 92 S.Ct. 2006, 2015, 32 L.Ed.2d 530 (1972), I do not think the rule adopted by the Court in that case is required by the Constitution. Moreover, the drawing of a line based on whether there is imprisonment (even for overnight) can have the practical effect of precluding provision of counsel in other types of cases in which conviction can have more serious consequences. The Argersinger rule also tends to impair the proper functioning of the criminal justice system in that trial judges, in advance of hearing any evidence and before knowing anything about the case except the charge, all too often will be compelled to forgo the legislatively granted option to impose a sentence of imprisonment upon conviction. Preserving this option by providing counsel often will be impossible or impracticable particularly in congested urban courts where scores of cases are heard in a single sitting, and in small and rural communities where lawyers may not be available. 21 Despite my continuing reservations about the Argersinger rule, it was approved by the Court in the 1972 opinion and four Justices have reaffirmed it today. It is important that this Court provide clear guidance to the hundreds of courts across the country that confront this problem daily. Accordingly, and mindful of stare decisis, I join the opinion of the Court. I do so, however, with the hope that in due time a majority will recognize that a more flexible rule is consistent with due process and will better serve the cause of justice. 22 Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL and Mr. Justice STEVENS join, dissenting. 23 The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." (Emphasis supplied.) Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), extended the Sixth Amendment right to counsel to the States through the Fourteenth Amendment and held that the right includes the right of the indigent to have counsel provided. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), held that the right recognized in Gideon extends to the trial of any offense for which a convicted defendant is likely to be incarcerated. 24 This case presents the question whether the right to counsel extends to a person accused of an offense that, although punishable by incarceration, is actually punished only by a fine. Petitioner Aubrey Scott was charged with theft in violation of Ill.Rev.Stat., ch. 38, § 16-1 (1969), an offense punishable by imprisonment up to one year or by a fine up to $500, or by both. About four months before Argersinger was decided, Scott had a bench trial, without counsel, and without notice of entitlement to retain counsel or, if indigent,1 to have counsel provided. He was found guilty as charged and sentenced to pay a $50 fine. 25 The Court, in an opinion that at best ignores the basic principles of prior decisions, affirms Scott's conviction without counsel because he was sentenced only to pay a fine. In my view, the plain wording of the Sixth Amendment and the Court's precedents compel the conclusion that Scott's uncounseled conviction violated the Sixth and Fourteenth Amendments and should be reversed. 26 * The Court's opinion intimates that the Court's precedents ordaining the right to appointed counsel for indigent accuseds in state criminal proceedings fail to provide a principled basis for deciding this case. That is demonstrably not so. The principles developed in the relevant precedents are clear and sound. The Court simply chooses to ignore them. 27 Gideon v. Wainwright held that, because representation by counsel in a criminal proceeding is "fundamental and essential to a fair trial," 372 U.S., at 342, 83 S.Ct., at 795, the Sixth Amendment right to counsel was applicable to the States through the Fourteenth Amendment: 28 "[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him." Id., at 344, 83 S.Ct., at 796-97. 29 Earlier precedents had recognized that the assistance of appointed counsel was critical, not only to equalize the sides in an adversary criminal process,2 but also to give substance to other constitutional and procedural protections afforded criminal defendants.3 Gideon established the right to appointed counsel for indigent accuseds as a categorical requirement, making the Court's former case-by-case due process analysis, cf. Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), unnecessary in cases covered by its holding. Gideon involved a felony prosecution, but that fact was not crucial to the decision; its reasoning extended, in the words of the Sixth Amendment, to "all criminal prosecutions."4 30 Argersinger v. Hamlin took a cautious approach toward implementing the logical consequences of Gideon's rationale. The petitioner in Argersinger had been sentenced to jail for 90 days after conviction—at a trial without counsel—of carrying a concealed weapon, a Florida offense carrying an authorized penalty of imprisonment for up to six months and a fine of up to $1,000. The State, relying on Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), urged that the Sixth Amendment right to counsel, like the right to jury trial, should not apply to accuseds charged with "petty" offenses punishable by less than six months, imprisonment. But Argersinger refused to extend the "petty" offense limitation to the right to counsel. The Court pointed out that the limitation was contrary to the express words of the Sixth Amendment, which guarantee its enumerated rights "[i]n all criminal prosecutions"; that the right to jury trial was the only Sixth Amendment right applicable to the States that had been held inapplicable to "petty offenses";5 that this limitation had been based on historical considerations peculiar to the right to jury trial;6 and that the right to counsel was more fundamentally related to the fairness of criminal prosecutions than the right to jury trial and was in fact essential to the meaningful exercise of other Sixth Amendment protections.7 31 Although its analysis, like that in Gideon and other earlier cases, suggested that the Sixth Amendment right to counsel should apply to all state criminal prosecutions, Argersinger held only that an indigent defendant is entitled to appointed counsel, even in petty offenses punishable by six months of incarceration or less, if he is likely to be sentenced to incarceration for any time if convicted. The question of the right to counsel in cases in which incarceration was authorized but would not be imposed was expressly reserved.8 II 32 In my view petitioner could prevail in this case without extending the right to counsel beyond what was assumed to exist in Argersinger. Neither party in that case questioned the existence of the right to counsel in trials involving "non-petty" offenses punishable by more than six months in jail.9 The question the Court addressed was whether the right applied to some "petty" offenses to which the right to jury trial did not extend. The Court's reasoning in applying the right to counsel in the case before it—that the right to counsel is more fundamental to a fair proceeding than the right to jury trial and that the historical limitations on the jury trial right are irrelevant to the right to counsel—certainly cannot support a standard for the right to counsel that is more restrictive than the standard for granting a right to jury trial. As my Brother Powell commented in his opinion concurring in the result in Argersinger, 407 U.S., at 45-46, 92 S.Ct., at 2017: "It is clear that wherever the right-to-counsel line is to be drawn, it must be drawn so that an indigent has a right to appointed counsel in all cases in which there is a due process right to a jury trial." Argersinger thus established a "two dimensional" test for the right to counsel: the right attaches to any "nonpetty" offense punishable by more than six months in jail and in addition to any offense where actual incarceration is likely regardless of the maximum authorized penalty. See Duke, The Right to Appointed Counsel: Argersinger and Beyond, 12 Am.Crim.L.Rev. 601 (1975). 33 The offense of "theft" with which Scott was charged is certainly not a "petty" one. It is punishable by a sentence of up to one year in jail. Unlike many traffic or other "regulatory" offenses, it carries the moral stigma associated with common-law crimes traditionally recognized as indicative of moral depravity.10 The State indicated at oral argument that the services of a professional prosecutor were considered essential to the prosecution of this offense. Tr. of Oral Arg. 39; cf. Argersinger v. Hamlin, 407 U.S., at 49, 92 S.Ct., at 2018 (Powell, J., concurring in result). Likewise, nonindigent defendants charged with this offense would be well advised to hire the "best lawyers they can get."11 Scott's right to the assistance of appointed counsel is thus plainly mandated by the logic of the Court's prior cases, including Argersinger itself.12 III 34 But rather than decide consonant with the assumption in regard to nonpetty offenses that was both implicit and explicit in Argersinger, the Court today retreats to the indefensible position that the Argersinger "actual imprisonment" standard is the only test for determining the boundary of the Sixth Amendment right to appointed counsel in state misdemeanor cases, thus necessarily deciding that in many cases (such as this one) a defendant will have no right to appointed counsel even when he has a constitutional right to a jury trial. This is simply an intolerable result. Not only is the "actual imprisonment" standard unprecedented as the exclusive test, but also the problems inherent in its application demonstrate the superiority of an "authorized imprisonment" standard that would require the appointment of counsel for indigents accused of any offense for which imprisonment for any time is authorized. 35 First, the "authorized imprisonment" standard more faithfully implements the principles of the Sixth Amendment identified in Gideon. The procedural rules established by state statutes are geared to the nature of the potential penalty for an offense, not to the actual penalty imposed in particular cases. The authorized penalty is also a better predictor of the stigma and other collateral consequences that attach to conviction of an offense.13 With the exception of Argersinger, authorized penalties have been used consistently by this Court as the true measures of the seriousness of offenses. See, e. g., Baldwin v. New York, 399 U.S., at 68-70, 90 S.Ct., at 1888; Frank v. United States, 395 U.S. 147, 149, 89 S.Ct. 1503, 1505, 23 L.Ed.2d 162 (1969); United States v. Moreland, 258 U.S, 433, 42 S.Ct. 368, 66 L.Ed. 700 (1922). Imprisonment is a sanction particularly associated with criminal offenses; trials of offenses punishable by imprisonment accordingly possess the characteristics found by Gideon to require the appointment of counsel. By contrast, the "actual imprisonment" standard, as the Court's opinion in this case demonstrates, denies the right to counsel in criminal prosecutions to accuseds who suffer the severe consequences of prosecution other than imprisonment. 36 Second, the "authorized imprisonment" test presents no problems of administration. It avoids the necessity for time-consuming consideration of the likely sentence in each individual case before trial and the attendant problems of inaccurate predictions, unequal treatment, and apparent and actual bias. These problems with the "actual imprisonment" standard were suggested in my Brother Powell's concurrence in Argersinger, 407 U.S., at 52-55, 92 S.Ct., at 2020-2021, which was echoed in scholarly criticism of that decision.14 Petitioner emphasizes these defects, arguing with considerable force that implementation of the "actual imprisonment" standard must assuredly lead to violations of both the Due Process and Equal Protection Clauses of the Constitution. Brief for Petitioner 47-59. 37 Finally, the "authorized imprisonment" test ensures that courts will not abrogate legislative judgments concerning the appropriate range of penalties to be considered for each offense. Under the "actual imprisonment" standard, 38 "[t]he judge will . . . be forced to decide in advance of trial—and without hearing the evidence—whether he will forego entirely his judicial discretion to impose some sentence of imprisonment and abandon his responsibility to consider the full range of punishments established by the legislature. His alternatives, assuming the availability of counsel, will be to appoint counsel and retain the discretion vested in him by law, or to abandon this discretion in advance and proceed without counsel." Argersinger v. Hamlin, supra, at 53, 92 S.Ct., at 2020 (Powell, J., concurring in result). 39 The "authorized imprisonment" standard, on the other hand, respects the allocation of functions between legislatures and courts in the administration of the criminal justice system. 40 The apparent reason for the Court's adoption of the "actual imprisonment" standard for all misdemeanors is concern for the economic burden that an "authorized imprisonment" standard might place on the States. But, with all respect, that concern is both irrelevant and speculative. 41 This Court's role in enforcing constitutional guarantees for criminal defendants cannot be made dependent on the budgetary decisions of state governments. A unanimous Court made that clear in Mayer v. Chicago, 404 U.S. 189, 196-197, 92 S.Ct. 410, 416, 30 L.Ed.2d 372 (1971), in rejecting a proposed fiscal justification for providing free transcripts for appeals only when the appellant was subject to imprisonment: 42 "This argument misconceives the principle of Griffin [v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956)] . . . . Griffin does not represent a balance between the needs of the accused and the interests of society; its principle is a flat prohibition against pricing indigent defendants out of as effective an appeal as would be available to others able to pay their own way. The invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in the sentences that may be imposed. The State's fiscal interest is, therefore, irrelevant."15 43 In any event, the extent of the alleged burden on the States is, as the Court admits, ante, at 373-374, n. 5, speculative. Although more persons are charged with misdemeanors punishable by incarceration than are charged with felonies, a smaller percentage of persons charged with misdemeanors qualify as indigent, and misdemeanor cases as a rule require far less attorney time.16 44 Furthermore, public defender systems have proved economically feasible, and the establishment of such systems to replace appointment of private attorneys can keep costs at acceptable levels even when the number of cases requiring appointment of counsel increases dramatically.17 The public defender system alternative also answers the argument that an authorized imprisonment standard would clog the courts with inexperienced appointed counsel. 45 Perhaps the strongest refutation of respondent's alarmist prophecies that an authorized imprisonment standard would wreak havoc on the States is that the standard has not produced that result in the substantial number of States that already provide counsel in all cases where imprisonment is authorized—States that include a large majority of the country's population and a great diversity of urban and rural environments.18 Moreover, of those States that do not yet provide counsel in all cases where any imprisonment is authorized, many provide counsel when periods of imprisonment longer than 30 days,19 3 months,20 or 6 months21 are authorized. In fact, Scott would be entitled to appointed counsel under the current laws of at least 33 States.22 46 It may well be that adoption by this Court of an "authorized imprisonment" standard would lead state and local governments to re-examine their criminal statutes. A state legislature or local government might determine that it no longer desired to authorize incarceration for certain minor offenses in light of the expense of meeting the requirements of the Constitution. In my view this re-examination is long overdue.23 In any event, the Court's "actual imprisonment" standard must inevitably lead the courts to make this re-examination, which plainly should more properly be a legislative responsibility. IV 47 The Court's opinion turns the reasoning of Argersinger on its head. It restricts the right to counsel, perhaps the most fundamental Sixth Amendment right,24 more narrowly than the admittedly less fundamental right to jury trial.25 The abstract pretext that "constitutional line drawing becomes more difficult as the reach of the Constitution is extended further, and as efforts are made to transpose lines from one area of Sixth Amendment jurisprudence to another," ante, at 372, cannot camouflage the anomalous result the Court reaches. Today's decision reminds one of Mr. Justice Black's description of Betts v. Brady : "an anachronism when handed down" that "ma[kes] an abrupt break with its own well-considered precedents." Gideon v. Wainwright, 372 U.S., at 345, 344, 83 S.Ct., at 796. 48 Mr. Justice BLACKMUN, dissenting. 49 For substantially the reasons stated by Mr. Justice BRENNAN in Parts I and II of his dissenting opinion, I would hold that the right to counsel secured by the Sixth and Fourteenth Amendments extends at least as far as the right to jury trial secured by those Amendments. Accordingly, I would hold that an indigent defendant in a state criminal case must be afforded appointed counsel whenever the defendant is prosecuted for a nonpetty criminal offense, that is, one punishable by more than six months' imprisonment, see Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), or whenever the defendant is convicted of an offense and is actually subjected to a term of imprisonment, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). 50 This resolution, I feel, would provide the "bright line" that defendants, prosecutors, and trial and appellate courts all deserve and, at the same time, would reconcile on a principled basis the important considerations that led to the decisions in Duncan, Baldwin, and Argersinger. 51 On this approach, of course, the judgment of the Supreme Court of Illinois upholding petitioner Scott's conviction should be reversed, since he was convicted of an offense for which he was constitutionally entitled to a jury trial. I, therefore, dissent. 1 Compare, e. g., Potts v. Estelle, 529 F.2d 450 (CA5 1976); State ex rel. Winnie v. Harris, 75 Wis.2d 547, 249 N.W.2d 791 (1977), with Sweeten v. Sneddon, 463 F.2d 713 (CA10 1972); Rollins v. State, 299 So.2d 586 (Fla.), cert. denied, 419 U.S. 1009, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974). 2 Ill.Rev.Stat., ch. 38, § 16-1 (1969). The penalty provision of the statute, at the time in question, provided in relevant part: "A person first convicted of theft of property not from the person and not exceeding $150 in value shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both. A person convicted of such theft a second or subsequent time, or after a prior conviction of any type of theft, shall be imprisoned in the penitentiary from one to 5 years. . . ." 3 Brief for Respondent in Argersinger v. Hamlin, O.T. 1971, No. 70-5015, p. 12. 4 We note that the line drawn in Argersinger was with full awareness of the various options. Both the petitioner in that case and the Legal Aid Society of New York, as amicus curiae, argued that the right to appointed counsel should pertain in any case in which imprisonment was an authorized penalty for the underlying offense. Brief for Petitioner in Argersinger v. Hamlin, O.T. 1971, No. 70-5015, p. 4; Brief for Legal Aid Society of New York as Amicus Curiae in Argersinger v. Hamlin 5-11. Respondent Florida and the amici States urged that the line be drawn as it had been in Baldwin for purposes of the jury trial guarantee. See, e. g., Brief for Respondent in Argersinger v. Hamlin 12. The Solicitor General argued for the standard that was finally adopted—that of actual imprisonment. Brief for United States as Amicus Curiae in Argersinger v. Hamlin 22-24. 5 Unfortunately, extensive empirical work has not been done. That which exists suggests that the requirements of Argersinger have not proved to be unduly burdensome. See, e. g., Ingraham, The Impact of Argersinger—One Year Later, 8 Law & Soc.Rev. 615 (1974). That some jurisdictions have had difficulty implementing Argersinger is certainly not an argument for extending it. S. Krantz, C. Smith, D. Rossman, P. Froud & J. Hoffman, Right to Counsel in Criminal Cases 1-18 (1976). 1 Scott was found to be indigent at the time of his initial appeal, and an attorney was therefore appointed for him and he was provided a free transcript of his trial for use on the appeal. The Illinois courts and the parties have assumed his indigency at the time of trial for purposes of this case. See 68 Ill.2d 269, 270-272, 12 Ill.Dec. 174, 174-175, 369 N.E.2d 881, 881-882; 36 Ill.App.3d 304, 307-308, 343 N.E.2d 517, 520 (1976). 2 "[The Sixth Amendment] embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel. That which is simple, orderly and necessary to the lawyer, to the untrained layman may appear intricate, complex and mysterious." Johnson v. Zerbst, 304 U.S. 458, 462-463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938). 3 "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect." Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). 4 See Argersinger v. Hamlin, 407 U.S. 25, 31, 92 S.Ct. 2006, 2009, 32 L.Ed.2d 530 (1972). 5 " 'It is simply not arguable, nor has any court ever held, that the trial of a petty offense may be held in secret, or without notice to the accused of the charges, or that in such cases the defendant has no right to confront his accusers or to compel the attendance of witnesses in his own behalf.' " Id., 407 U.S., at 28, 92 S.Ct., at 2008, quoting Junker, The Right to Counsel in Misdemeanor Cases, 43 Wash.L.Rev. 685, 705 (1968). Cf. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (right to a public trial); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (right to confrontation); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) (right to a speedy trial); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (right to compulsory process of witnesses); Groppi v. Wisconsin, 400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971) (right to an impartial jury). 6 "While there is historical support for limiting the 'deep commitment' to trial by jury to 'serious criminal cases,' there is no such support for a similar limitation on the right to assistance of counsel . . . . * * * * * "The Sixth Amendment . . . extended the right to counsel beyond its common-law dimensions. But there is nothing in the language of the Amendment, its history, or in the decisions of this Court, to indicate that it was intended to embody a retraction of the right in petty offenses wherein the common law previously did require that counsel be provided." Argersinger v. Hamlin, 407 U.S., at 30, 92 S.Ct., at 2009 (footnote and citations omitted). 7 Id., at 31, 92 S.Ct., at 2009; See supra, at 377, and n. 3. 8 "Mr. Justice Powell suggests that these problems [requiring the presence of counsel to insure the accused a fair trial] are raised even in situations where there is no prospect of imprisonment. . . . We need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved, however, for here petitioner was in fact sentenced to jail." 407 U.S., at 37, 92 S.Ct., at 2012. 9 See, e. g., id., at 27, 30-31, 36, and n. 5, 92 S.Ct., at 2007, 2009, 2012, and n. 5; id., at 45, and n. 2, 63, 92 S.Ct., at 2016, and n. 2, 2025 (Powell, J., concurring in result). 10 Because a theft conviction implies dishonesty, it may be a basis for impeaching petitioner's testimony in a court proceeding. People v. Stufflebean, 24 Ill.App.3d 1065, 1068-1169, 322 N.E.2d 488, 491-492 (1974). Because jurors must be of "fair character" and "approved integrity," Ill.Rev.Stat., ch. 78, § 2 (1975), petitioner may be excluded from jury duty as a result of his theft conviction. Twelve occupations licensed under Illinois law and 23 occupations licensed under city of Chicago ordinances require the license applicant to have "good moral character" or some equivalent background qualification that could be found unsatisfied because of a theft conviction. See Chicago Council of Lawyers, Study of Licensing Restrictions on Ex-Offenders in the City of Chicago and the State of Illinois 8, A-17 (1975). Under federal law petitioner's theft conviction would bar him from working in any capacity in a bank insured by the Federal Deposit Insurance Corporation, 12 U.S.C. § 1829, or possibly in any public or private employment requiring a security clearance. 32 CFR §§ 155.5(h) and (i), and 156.7(b)(1)(iii) (1977). 11 Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963); see supra n. 5, at 713-714. 12 My Brother Powell's concurrence in Argersinger, 407 U.S., at 44, 92 S.Ct., at 2016, joined by my Brother Rehnquist, also supports petitioner's right to appointed counsel in this case. The concurrence explicitly stated that the right to counsel should extend at least as far as the right to jury trial, id., at 45-46, 92 S.Ct., at 2016-2017, and its preference for a case-by-case approach was repeatedly limited to "petty" offenses. See, e. g., id., at 45, and n. 2, 47, 63, 92 S.Ct., at 2016, and n. 2, 2017, 2025. Even in petty offenses, the Argersinger concurrence would have mandated the following procedures: "The determination [whether counsel must be appointed] should be made before the accused formally pleads; many petty cases are resolved by guilty pleas in which the assistance of counsel may be required. If the trial court should conclude that the assistance of counsel is not required in any case, it should state its reasons so that the issue could be preserved for review." Id., at 63, 92 S.Ct., at 2025. 13 See n. 10, supra. The scope of collateral consequences that would be constitutionally permissible under the "actual imprisonment" standard remains unsettled, and this uncertainty is another source of confusion generated by this standard. See, e. g., Tr. of Oral Arg. 35-37; United States v. White, 529 F.2d 1390 (CA8 1976); Note, Argersinger v. Hamlin and the Collateral Use of Prior Misdemeanor Convictions of Indigents Unrepresented by Counsel at Trial, 35 Ohio St.L.J. 168 (1974). 14 See, e. g., S. Krantz, C. Smith, D. Rossman, P. Froyd & J. Hoffman, Right to Counsel in Criminal Cases: The Mandate of Argersinger v. Hamlin 69-117 (1976); Duke, The Right to Appointed Counsel: Argersinger and Beyond, 12 Am.Crim.L.Rev. 601 (1975). The case-by-case approach advocated by my Brother Powell in Argersinger has also been criticized as unworkable because of the administrative burden it would impose. See, e. g., Uniform Rules of Criminal Procedure, Rule 321(b), Comment, 10 U.L.A. 69 (1974). 15 See also Bounds v. Smith, 430 U.S. 817, 825, 97 S.Ct. 1491, 1496, 52 L.Ed.2d 72 (1977). 16 See Uniform Rules of Criminal Procedure, Rule 321(b), Comment, 10 U.L.A. 70 (1974) (estimates that only 10% of misdemeanor defendants, as opposed to 60%-65% of felony defendants, meet the necessary indigency standard); National Legal Aid and Defender Assn., The Other Face of Justice, Note I, pp. 82-83 (1973) (survey indicates national average is 65% indigency in felony cases and only 47% in misdemeanor cases). The National Advisory Commission on Criminal Justice Standards and Goals adopted a maximum caseload standard of 150 felony cases or 400 misdemeanor cases per attorney per year. National Advisory Commission on Criminal Justice Standards and Goals, Courts, Standard 13.12, pp. 276-277 (1973). See also The Other Face of Justice, supra, Table 109, p. 73. 17 A study conducted in the State of Wisconsin, which introduced a State Public Defender System after the Wisconsin Supreme Court in State ex rel. Winnie v. Harris, 75 Wis.2d 547, 249 N.W.2d 791 (1977), extended the right to counsel in the way urged by petitioner in this case, indicated that the average cost of providing counsel in a misdemeanor case was reduced from $150-$200 to $90 by using a public defender rather than appointing private counsel. Brief for National Legal Aid and Defender Assn. as Amicus Curiae 10-12. 18 See, e. g., Alaska: Alaska Const., Art. 1, § 11; Alaska Stat.Ann. § 18.85.100 (1974) (any offense punishable by incarceration; or which may result in loss of valuable license or heavy fine); Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971); Arizona: Ariz.Rule Crim.Proc. 6.1(b) (any criminal proceedings which may result in punishment by loss of liberty; or where the court concludes that the interest of justice so requires); California: Cal.Penal Code Ann. § 987 (West Supp.1978) (all criminal cases); Connecticut: Conn.Gen.Stat. §§ 51-296(a), 51-297(f) (1979) (all criminal actions); Delaware: Del.Code Ann., Tit. 29, § 4602 (1974) (all indigents under arrest or charged with crime if defendant requests or court orders); Hawaii: Haw.Rev.Stat. § 802-1 (1976) (any offense punishable by confinement in jail); Indiana: Ind.Const., Art. I § 13 (all criminal prosecutions); Bolkovac v. State, 229 Ind. 294, 98 N.E.2d 250 (1951); Kentucky: Ky.Rule Crim.Proc. 8.04 (offenses punishable by a fine of more than $500 or by imprisonment); Louisiana: La.Code Crim.Proc., Art. 513 (West Supp.1978) (offenses punishable by imprisonment); Massachusetts: Mass.Sup.Jud.Ct. Rule 3:10 (any crime for which sentence of imprisonment may be imposed); Minnesota: Minn.Stat. §§ 609.02, 611.14 (1978) (felonies and "gross misdemeanors"; statute defines "petty" misdemeanors as those not punishable by imprisonment or fine over $100); New Hampshire: N.H.Rev.Stat.Ann. §§ 604-A:2, 625:9 (1974 and Supp.1977) (offenses punishable by imprisonment); New Mexico: N.M.Stat.Ann. § 41-22A-12 (Supp.1975) (offense carrying a possible sentence of imprisonment); New York: N.Y.Crim.Proc.Law § 170.10(3) (McKinney 1971) (all misdemeanors except traffic violations); People v. Weinstock, 80 Misc.2d 510, 363 N.Y.S.2d 878 (1974) (traffic violations subject to possible imprisonment); Oklahoma: Okl.Stat., Tit. 22, § 464 (1969) (all criminal cases); Stewart v. State, 495 P.2d 834 (Cr.App.1972); Oregon: Brown v. Multnomah County Dist. Ct., 29 Or.App. 917, 566 P.2d 522 (1977) (all criminal cases); South Dakota: S.D.Comp.Laws Ann. § 23-2-1 (Supp.1978) (any criminal action); Tennessee: Tenn.Code Ann. §§ 40-2002, 40-2003 (1975) (persons accused of any crime or misdemeanor whatsoever); Texas: Tex.Code Crim.Proc.Ann., Art. 26.04 (Vernon 1966) (any felony or misdemeanor punishable by imprisonment); Virginia: Va.Code §§ 19.2-157, 19.2-160 (Supp.1978) (misdemeanors the penalty for which may be confinement in jail); Washington: Wash. Justice Court Crim.Rule 2.11(a)(1) (all criminal offenses punishable by loss of liberty); West Virginia: W.Va.Code § 62-3-1a (1977) (persons under indictment for a crime); Wisconsin: Wis.Const., Art. I, § 7; State ex rel. Winnie v. Harris, 75 Wis.2d 547, 249 N.W.2d 791 (1977) (all offenses punishable by incarceration). Respondent claims that the statutes and case law in some of these States "need not be read as requiring appointment of counsel for all imprisonable cases." Brief for Respondent 33 n. 28. Although the law is not unambiguous in every case, ambiguities in the laws of other States suggest that the list is perhaps too short, or at least that other States provide counsel in all but the most trivial offenses. E. g., Colorado: Colo.Rev.Stat. § 21-1-103 (1973) (all misdemeanors and all municipal code violations at the discretion of the public defender); Georgia: Ga.Code § 27-3203 (1978) (any violation of a state law or local ordinance which may result in incarceration); Missouri: Mo.Op.Atty.Gen. No. 207 (1963) (counsel should be appointed in misdemeanor cases of "more than minor significance" and "when prejudice might result"); Montana: Mont.Rev.Codes Ann. § 95-1001 (1969) (court may assign counsel in misdemeanors "in the interest of justice"); Nevada: Nev.Rev.Stat. § 178.397 (1977) (persons accused of "gross misdemeanors" or felonies); New Jersey: N.J.Stat.Ann. § 2A:158A-2 (West 1971); N.J.Crim.Rule 3:27-1 (any offense which is indictable); Pennsylvania: Pa.Rules Crim.Proc. 316(a)-(c) (in all but "summary cases"); Wyoming: Wyo.Stat. §§ 7-1-110(a) (entitled to appointed counsel in "serious crimes"), 7-1-108(a)(v) (serious crimes are those for which incarceration is a "practical possibility"), 7-9-105 (all cases where accused shall or may be punished by imprisonment in penitentiary) (1977). In addition, Alabama, Florida, Georgia, and Mississippi were until today covered by the Fifth Circuit's adoption of the "authorized imprisonment" standard. See Potts v. Estelle, 529 F.2d 450 (CA5 1976); Thomas v. Savage, 513 F.2d 536 (CA5 1975). Several States that have not adopted the "authorized imprisonment" standard give courts discretionary authority to appoint counsel in cases where it is perceived to be necessary (e. g., Maryland, Missouri, Montana, North Dakota, Ohio, and Pennsylvania). 19 Iowa: Iowa Rules Crim.Proc. 2, § 3; 42, § 3. 20 Maryland: Md.Ann.Code, Art. 27A, §§ 2(f) and (h), 4 (1976); Mississippi: Miss.Code Ann. § 99-15-15 (1972). 21 Idaho: Idaho Code § 19-851 (Supp.1978); Mahler v. Birnbaum, 95 Idaho 14, 501 P.2d 282 (1972); Maine: Newell v. State, 277 A.2d 731 (1971); Ohio: Ohio Rules Crim.Proc. 2, 44(A) and (B); Rhode Island: R.I.Rule Crim.Proc. 44 (Super.Ct.); R.I.Rule Crim.Proc. 44 (Dist.Ct.); State v. Holliday, 109 R.I. 93, 280 A.2d 333 (1971); Utah: Utah Code Ann. § 77-64-2 (1978); Salt Lake City Corp. v. Salt Lake County, 520 P.2d 211 (1974). 22 See nn. 18-21, supra. The actual figure may be closer to 40 States. The following States appear to be governed only by the "likelihood of imprisonment" standard: Arkansas: Ark.Rule Crim.Proc. 8.2(b) (all criminal offenses except in misdemeanor cases where court determines that under no circumstances will conviction result in imprisonment); Florida: Fla.Rule Crim.Proc. 3.111(b) (any misdemeanor or municipal ordinance violation unless prior written statement by judge that conviction will not result in imprisonment); North Carolina: N.C.Gen.Stat. § 7A-451(a) (Supp.1977) (any case in which imprisonment or a fine of $500 or more is likely to be adjudged); North Dakota: N.D.Rule Crim.Proc. 44 (all nonfelony cases unless magistrate determines that sentence upon conviction will not include imprisonment); Vermont: Vt.Stat.Ann., Tit. 13, §§ 5201, 5231 (1974 and Supp.1977) (any misdemeanor punishable by any period of imprisonment or fine over $1,000 unless prior determination that imprisonment or fine over $1,000 will not be imposed). Two States require appointment of counsel for indigents in cases where it is "constitutionally required": Alabama: Ala.Code §§ 15-12-1, 15-12-20 (1975); South Carolina: S.C.Code § 17-3-10 (Supp.1977). Some States require counsel in misdemeanor cases only by virtue of judicial decisions reacting to Argersinger : Kansas: State v. Giddings, 216 Kan. 14, 531 P.2d 445 (1975); Michigan: People v. Studaker, 387 Mich. 698, 199 N.W.2d 177 (1972); People v. Harris, 45 Mich.App. 217, 206 N.W.2d 478 (1973); Nebraska: Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761 (1975). 23 See, e. g., Krantz et al., supra n. 14, at 445-606. 24 "In an adversary system of criminal justice, there is no right more essential than the right to the assistance of counsel." Lakeside v. Oregon, 435 U.S. 333, 341, 98 S.Ct. 1091, 1096, 55 L.Ed.2d 319 (1978). 25 "[T]he interest protected by the right to have guilt or innocence determined by a jury—tempering the possibly arbitrary and harsh exercise of prosecutorial and judicial power—while important, is not as fundamental to the guarantee of a fair trial as is the right to counsel." Argersinger v. Hamlin, 407 U.S., at 46, 92 S.Ct., at 2017 (Powell, J., concurring in result) (footnotes omitted).

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